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Trans Pacific Pillaging: the investments chapter

By Jonathan J. Ariel - posted Thursday, 9 April 2015


Preamble

Capital is a means to encourage and promote the flow of investment between the Parties on a mutually advantageous basis …while recognizing the rights of Parties to regulate and the responsibility of governments to protect legitimate public welfare, including public health, safety and the environment.

Lawyers will have a field day.

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This raises a few questions:

How will such terms be defined? For instance, where does "public" health start and "private" health (for the many) finish? For instance, are PSA tests or mammograms examples of "public health"?

Can "public welfare" in such diverse economies such as Australia and Vietnam possibly allow for a universal definition?

What exactly is "legitimate" public welfare? And how does it differ from "illegitimate" public welfare?

Article II.1: Definitions

Among the forms that an investment may take, the following are listed:

(f) Intellectual property rights;

(g) Licenses, authorizations, permits, and similar rights conferred pursuant to domestic law; and

(h) Other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens and pledges.

Question: To what extent do these provisions disarm the Commonwealth Treasury in its battle against alleged multinational companies dodging paying their fair share of Australian taxes?

Question: Just how deleterious are the IP provisions to Australian industries? How many industries have a target on their backs?

Special mention is made of the rules that will govern foreign investments in industries or resources that are under the control of government authorities:

(a) With respect to natural resources that a national authority controls, such as for their exploration, extraction, refining, transportation, distribution, or sale;

(b) To supply services to the public on behalf of the Party, such as power generation or distribution, water treatment or distribution, or telecommunications; or

(c) To undertake infrastructure projects, such as the construction of roads, bridges, canals, dams, or pipelines, that are not for the exclusive or predominant use and benefit of the government.

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Question: does this forecast a legislated advantage for TPP members (e.g. the United States) over non-members (say China) when it comes to investing in Australian infrastructure? And if so, just what are our politicians thinking?

Article II.4: National Treatment

1. Each Party shall accord to investors of another Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.

2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.

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About the Author

Jonathan J. Ariel is an economist and financial analyst. He holds a MBA from the Australian Graduate School of Management. He can be contacted at jonathan@chinamail.com.

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