TPPA signed

[StN]

Clearly, what is required here is a squeaky sex toy thrown at the Minister for Everything by a decorated Earthquake hero.

[Nothing]

Originally Posted by CCS

There is a list of safeguards there.

Even if there is a list of specific things, such as tobacco control measures, which our government doesn't need to worry about ISDS suits over, that doesn't really make me feel much better. If you'd watched the whole Sanders video rather than just the first couple of minutes and then a bit of skimming, you'd know that the tobacco suit is certainly not the only example, other similar suits come from entirely different industries and go after entirely different local legislation.

All the exceptions in the TPPA really mean is that what we'll end up over a barrel for will be any future legislation that we want to pass that will have an impact on some multi-national's profits, which we didn't think to include an exception for in the agreement prior to its signing.

[CCS]

It's a bit late for that now, considering all the trade deals we've made in the past.

[fixed_truth]

Google Trends prove TPPA protest impact

[Nothing]

Originally Posted by CCS

It's a bit late for that now, considering all the trade deals we've made in the past.

That doesn't even make sense. Previous trade deals have not given multi-national corporates the ability to sue our government for future local legislation in an external tribunal. Why is that point so hard for you to get?

[CCS]

Originally Posted by Nothing

That doesn't even make sense. Previous trade deals have not given multi-national corporates the ability to sue our government for future local legislation in an external tribunal. Why is that point so hard for you to get?

Because it's not true.

[BoyWonder]

The funny thing about the TPPA is that the most vocal people have started by taking a position, and then have decided to actually look it up (boring), or have chosen to simply turn up the volume.

[p-b]

Originally Posted by Nothing

That doesn't even make sense. Previous trade deals have not given multi-national corporates the ability to sue our government for future local legislation in an external tribunal. Why is that point so hard for you to get?

The tobacco companies were suing Australia well before the TPPA was finalised, let alone signed. Couldn't companies have sued us, prior to the TPPA, as well?

[Nothing]

Originally Posted by p-b

The tobacco companies were suing Australia well before the TPPA was finalised, let alone signed. Couldn't companies have sued us, prior to the TPPA, as well?

Right, they were suing Australia, as a result of an agreement that Australia signed on to. Last time I checked, we weren't Australia.

I suppose, if we had signed up to an agreement which allowed for that, they could have. Which agreement have we signed up to that allows for it, prior to the TPPA? Given that you're such experts, I'm sure you'll know which ones out of the 3164 agreements we are signatories to include that specific provision.

[p-b]

Originally Posted by Nothing

Right, they were suing Australia, as a result of an agreement that Australia signed on to. Last time I checked, we weren't Australia.

I suppose, if we had signed up to an agreement which allowed for that, they could have. Which agreement have we signed up to that allows for it, prior to the TPPA? Given that you're such experts, I'm sure you'll know which ones out of the 3164 agreements we are signatories to include that specific provision.

I think you mistake me. I am no expert.

I was genuinely asking because I didn't know.

Also, "we are not Australia". Got it. Let me write that one down, I'll need to read it every morning before I put try to put my pants on.

[CCS]

They don't need necessarily a trade deal in order to sue a govt; they do need a legal basis under which to sue otherwise.

I'm sure cyc will correct me or elaborate, but that's my understanding.

[Nothing]

Originally Posted by Ab

Great. So where is your line between "an agreement that places restrictions on what the government can do" and "a compromise of our sovereignty"?

I'll have a go at illustrating the line for you then.

So, if it's an agreement that has some specific things that a government cannot do, I'm probably not so worried about that. Then we know what we're signing on for, and whether it would be objectionable to us or not. A fictional example of something specific might be something like:

'The New Zealand Government shall not pass any laws that apply tariffs to imported products from Indonesia that were produced by the Widget industry'

Notice how specific it is. With that sort of thing, we know what we're signing up for. It assumes that the New Zealand Government is allowed to do whatever it wants with a specific exception.

By contrast the ISDS clause in the TPPA is non-specific. It just says that our Government can be sued for any legislation that would result in the loss of future profits.

Rather than assuming that we are free to do as we please aside from some specific exceptions that have been specified in advance, it assumes that any law we make is fair game unless we have specified in advance that we want an exception for it in the agreement.

Because the first example is specific, it isn't really a serious compromise against our sovereignty. We know what we are agreeing to do and not to do when we sign up.

By contrast, because the TPPA's clause is non-specific, we don't really know what we're agreeing to do or not do in advance, other than that we're agreeing to be sued if we pass legislation that costs a corporate 'future profits'. The range of things we could be sued for under that is huge and unforeseeable. It impacts our sovereignty because it places unclear restrictions on our local legislative process, and we could be held to ransom over things we would never have thought to include exceptions for in the agreement.

I'm quite happy to be corrected if you can show me how and where this thinking goes wrong, but nothing anyone here has said so far gives me any confidence that someone here will be able to do that.

[p-b]

Originally Posted by Nothing

Right, they were suing Australia, as a result of an agreement that Australia signed on to. Last time I checked, we weren't Australia.

I suppose, if we had signed up to an agreement which allowed for that, they could have. Which agreement have we signed up to that allows for it, prior to the TPPA? Given that you're such experts, I'm sure you'll know which ones out of the 3164 agreements we are signatories to include that specific provision.

In liue of further response, thought I'd do further reading:

Originally Posted by NZ Institute of Economic Research Report[/URL

Is ISDS a new and untested issue for New Zealand?

Hardly.

New Zealand’s
BITs with China (implemented in 1989) and Hong Kong (1995) include ISDS, as do a number of its FTAs. Once the recent Korea FTA enters into force, New Zealand will have ISDS provisions with 13 economies.

The bulk of these ISDS agreements have occurred more recently, however, including in our FTAs with China (2008),ASEAN and Australia (2009) and South Korea (2015). As noted above, although the mechanism has
existed for some time, no claims have been filed
against New Zealand.


Has the New Zealand government ever been sued before by foreign companies?

No. Despite having had ISDS with 13 countries over the past 27 years, the New Zealand government has never been sued by a foreign investor under an international treaty.

That is likely to be due in large part to its open trade and investment regime, respect for the rule of law and clear
and transparent legislative processes. It may also reflect the fact that launching ISDS claims isn’t
cheap (firms can expect multi-million dollar costs), the probability of a win is low (see Figure 2) and the expected return per winning claim is just three cents on the dollar.

NZIER Report - ISDS & Sovereignty

[p-b]

Originally Posted by Lightspeed

Unless you can point to some meaningful surveying and assessment of concerns raised by a fair sample of TPP protesters?

A bit late in replying, but perhaps that report can also add to the discussion, in relation to the "Companies Suing NZ" and "Threat to Sovereignty" concerns.

[Nothing]

Originally Posted by p-b

In liue of further response, thought I'd do further reading:



NZIER Report - ISDS & Sovereignty

Thanks for that p-b. That'll give me some material to chew over and have a think about.

[p-b]

No worries.

In reading that report, one question I ask myself is "what will be different between past ISDS agreements, and the TPPA ISDS? Should we trust that many of the MFAT and MBIE negotiators involved in negotiating the TPPA have had experience in negotiating past FTA's and ISDS agreements, and that they will have learnt from those?"

One aspect that is different perhaps, is the USA. Does the introduction of America into the fold mean that American companies will all of a suddent start getting uppity and start firing ISDS arbitration shots?

In the course of very quick reading about the Phillip Morris v Australia case, it sounds as though Phillip Morris changed their business structure in such a way as to allow them to sue from a country that had an existing ISDS agreement with Australia. So perhaps, even prior to the advent of the TPPA, American companies might have found similar such ways to take advantage of existing ISDS agreements which would surely be weaker than that of the TPPA.

Even with the historical data provided in that report, I guess it's still hard to know how things will pan out, but it does seem to indicate that the RoI, in terms of ISDS claims raised, is very poor. So maybe that might count for something.

I wonder though, whether there are many people out there in the shadows, awaiting the result of the Phillip Morris case.

[CCS]

I thought they lost?

[Lightspeed]

Originally Posted by p-b

A bit late in replying, but perhaps that report can also add to the discussion, in relation to the "Companies Suing NZ" and "Threat to Sovereignty" concerns.

Certainly it would be interesting to know if there are any concerns of substance raised by TPP protesters. Or if there aren't. I'd need convincing that all or even a large majority of protesters have an unsophisticated understanding of why they're protesting.

It seems like difficult data to gather, not impossible though.

Data I'd be fascinated in would be a modestly fair sample of the population educated in issues around the TPP or other similar society shaping agreements, and then surveyed on their response.

Particularly prior to the TPP gaining strong media attention, which inevitably shapes the data into somewhat arbitrary talking points. But it's not exactly a study you can do retrospectively.

One thing is for sure, people are concerned about the nature and impact of these agreements unlike they have been in the past. I guess it's to be seen if the concern persists, and how the response to the TPP impact future agreement making.

[Nothing]

There are some interesting opinion pieces that critique the NZIER report:

This article on Scoop gives an interesting discussion. It points out that:

it is rather mischievous for the NZIER to claim that these clauses will have a negligible effect on a government’s capacity to legislate in the public interest. A simple case in point is the Tobacco Plain Packaging Amendment Bill that has stalled in our parliament. Why has it stalled? Well, the reasons are writ large here, ie the bill has stalled because parliament has decided that it would be in our best interest (and I agree with them) to await the outcome of the tobacco giant taking action against the Australian government. Philip Morris has taken action against the Australian Federal government for breaching an ISDS-like provision by attempting to introduce plain packaging to promote public health by discouraging smoking. This is likely to cause a drop in tobacco consumption and thereby affect their profits and Philip Morris is suing for loss of profits. So parliament is basically waiting for any fallout from that action taken against a government before deciding if we should continue with the bill. Chilling effect? It might be a case of hell freezing over.

It also points out that:

it states that only a minority of litigants have been successful in pursuing action against government for breaches of the ISDS through arbitration panels. The percentage quoted is 25%. However I would like to stress that according to their findings, another 28% did not go to arbitration but instead were settled out of “court”. This brings the total percentage of monetary penalties that governments had to pay out, whether through arbitration or out of court settlements, to be a not insubstantial 53%.

Another article on the Herald points out that the NZIER report fails to make any mention of the wide range of experts who have opposed the ISDS provisions. I'm not going to quote the article because the range of experts who have spoken out against the ISDS provisions would take up heaps of space and be a giant pain in the ass to quote. More than this, though, the herald article also points out that:

...the very legitimacy of ISDS is under broad attack internationally. ... the Australian Productivity Commission recommends that Australian governments should not accept ISDS because there is little evidence that it increases investment but it has unacceptable risks. It cites a World Trade Organisation research division report showing that ISDS does not increase investment.

Another point that gets made is that:

Given that NZIER has itself also publicly stated its support for the TPPA MFAT should not, as Trade Minister Tim Groser has suggested, use them to carry out the government's evaluation of the deal.

[Nothing]

Originally Posted by Lightspeed

Certainly it would be interesting to know if there are any concerns of substance raised by TPP protesters.

I think it might be unreasonable to expect any but a small minority of the protesters to be subject matter experts about why the TPPA is a bad thing to be honest. There's a really interesting article by a political philosopher by the name of Elizabeth Anderson entitled "Democracy, Public Policy, and Lay Assessments of Scientific Testimony". The start of the abstract for the article reads:

Responsible public policymaking in a technological society must rely on complex scientific reasoning. Given that ordinary citizens cannot directly assess such reasoning, does this call the democratic legitimacy of technical public policies in question? It does not, provided citizens can make reliable second-order assessments of the consensus of trustworthy scientific experts.

Trade agreements are fairly similar in this respect I would think. They involve complex reasoning, or at the very least reasoning which goes into a depth that most private citizens simply do not have the time or inclination for.

As such, it is disingenuous to expect the general public and protesters to be experts about what the problems with the TPPA are. Pointing out the ignorance of protesters is some kind of weird mix of an ad-hominem and a straw-man. The responsibility for expertise lies with the opinions of the subject matter experts that the protesters' second-order assessments are based on. As pointed out in my previous post, although it is not acknowledged by the NZIER report, there are plenty of subject matter experts who claim that the ISDS provisions in the TPPA should be cause for worry that these protesters can refer us to.

[p-b]

I don't think anyone in this thread has said that those protesting have to be experts, nor that genuine concerns don't exist.

In skimming back I think all anyone has highlighted in this thread, however, is the willful ignorance which some protesters have been displaying.

I also definitely don't think it is disingenuous to ask someone why they are protesting (whatever they may be protesting for or against) and to expect an answer that is at least coherent to some extent.

[Nothing]

Originally Posted by p-b

In skimming back I think all anyone has highlighted in this thread, however, is the willful ignorance which some protesters have been displaying.

And that would be fine if it was just a discussion between a couple of friends about one particular person, or a few particular people, who were being morons. But that's not what it is. Posts like these:

Originally Posted by Ab

...and it's done.

I see that central akl has been fucked up by a group of people in black balaclavas, the mandatory thought leaders in Fawkes masks, and a sign that reads "FUCK JOHN LAW". maybe someone could explain that last bit.

http://www.nzherald.co.nz/business/n...ectid=11584458

Originally Posted by CCS

TPP protester admits to reporter he doesn't 'know the gist of it'

Doesn't understand why he's protesting. Says that people who are annoyed at being held up in traffic should understand why the protesters are annoyed.

Good one.

aren't posts which are just between a few mates talking about a specific few idiots. These are news stories which probably reach tens or hundreds of thousands of people. Maybe even a million or more. The media have specifically gone after the few idiots in a crowd of thousands and sought to use those few idiots to portray the whole crowd. All just to amplify the message that

Too many of them didn't even know why they were protesting.

But that line came directly before:

"I dunno, to be honest," was roughly what one man said.

So, we've gone from "what one man said" to "too many of them" in a single bound right there. Wat? That seems pretty disingenuous to me.