International Commercial Law - Memorandum for the Minister of Trade and Investment
Memorandum
To: Minister of Trade and Investment
From: Margaret Bolshinsky, Taylan Bozkurt, Samantha Balancy and Rufaro Mahaci – Commonwealth Department of Foreign Affairs and Trade
Date: January 15, 2014
Re: Issues surrounding the use of Investor-State Dispute Settlement in bilateral and regional trade agreements.
We write to you regarding what we have concluded to be some issues with current Investor-State Dispute Settlements (ISDS). Based on our research, we find that these clauses, disregarded by the previous government, perhaps have too great of a deleterious effect on Australian trade agreements.
Ruth Townsend, lecturer of health law, ethics and human rights at Australian National University believes that the proposed induction of ISDS laws by the current Australian government in Trans-Pacific Partnerships with five of its ten major trading partners, being Japan, the United States, Singapore, New Zealand and Malaysia (DFAT website), may come at the threat of Australia’s sovereignty (The Conversation, Ruth Townsend article). Upon the introduction of plain packaging for cigarettes in Australia “to improve public health” major corporation Phillip Morris as well as numerous other tobacco companies challenged such laws in the Australian High Court, where they were unsuccessful. Despite the fact that the Australian government passed the law, a government that is elected democratically to represent the needs of its citizens and the state itself, and that it was deemed to be valid by the highest judicial body, Phillip Morris through an ISDS was able to challenge this authority, based on a clause found in a trade agreement with Hong Kong. This case is one of many that demonstrates the abuse exhibited by large international corporations of the original purposes of ISDS clauses, with 58 cases brought forward in 2013, the highest ever seen in one year, and over 36% of those “developed nations with a rule of law” (The Conversation, Ruth Townsend article). This is
To: Minister of Trade and Investment
From: Margaret Bolshinsky, Taylan Bozkurt, Samantha Balancy and Rufaro Mahaci – Commonwealth Department of Foreign Affairs and Trade
Date: January 15, 2014
Re: Issues surrounding the use of Investor-State Dispute Settlement in bilateral and regional trade agreements.
We write to you regarding what we have concluded to be some issues with current Investor-State Dispute Settlements (ISDS). Based on our research, we find that these clauses, disregarded by the previous government, perhaps have too great of a deleterious effect on Australian trade agreements.
Ruth Townsend, lecturer of health law, ethics and human rights at Australian National University believes that the proposed induction of ISDS laws by the current Australian government in Trans-Pacific Partnerships with five of its ten major trading partners, being Japan, the United States, Singapore, New Zealand and Malaysia (DFAT website), may come at the threat of Australia’s sovereignty (The Conversation, Ruth Townsend article). Upon the introduction of plain packaging for cigarettes in Australia “to improve public health” major corporation Phillip Morris as well as numerous other tobacco companies challenged such laws in the Australian High Court, where they were unsuccessful. Despite the fact that the Australian government passed the law, a government that is elected democratically to represent the needs of its citizens and the state itself, and that it was deemed to be valid by the highest judicial body, Phillip Morris through an ISDS was able to challenge this authority, based on a clause found in a trade agreement with Hong Kong. This case is one of many that demonstrates the abuse exhibited by large international corporations of the original purposes of ISDS clauses, with 58 cases brought forward in 2013, the highest ever seen in one year, and over 36% of those “developed nations with a rule of law” (The Conversation, Ruth Townsend article). This is