NZ has been previously affected by Investor State Disputes
NZ has been previously affected by Investor State Disputes Settlement
“Government claims that New Zealand has never been sued by a corporation under existing trade agreements may be correct,” says Myles Thomas from the Coalition for Better Broadcasting (CBB), “but it is worth noting that the threat of Investor/State litigation did affect government policy in 1998 and early 2000s.”
In 1998 the National Government’s Minister of Culture was considering compulsory local content broadcasting quotas. Such quotas are commonplace around the world1as a means to supporting local music on radio and programmes on television. But a report commissioned by the Ministry2 concluded that quotas would breach GATS commitments because it would limit the profitability of foreign record labels, film producers and television producers.
In 2000 the Labour Government had to back away from election promises it had made to introduce New Zealand content quotas, after being advised that it would breach GATS3. The following year the US government also pointed out quotas in NZ would contravene the GATS4. The Clark government eventually helped create a voluntary music quota for radio stations which was successful, and the less effective TVNZ Charter.5
“It’s possible that when Jim Bolger signed GATS seven years prior, he didn’t believe it could ever affect New Zealand television or music content,” said Mr Thomas, “although it’s interesting that Australia did not agree to the clauses that limit quotas6and to this day, has very successful quotas for Australian music (25%) and for Australian television (55%).”
“This is a small but significant example of how the ISDS system has already impacted upon New Zealand, and could do so again under the TPPA - not by actual legal action but by the threat of it, forcing a government to alter a policy, how it implements it, or to simply cancel it altogether.”
The CBB calls on the government to ensure that under TPPA; our film, television, music and other cultural assets are safe from threat of litigation, undue pressure or intimidation from overseas interests.
2 ‘Question of a “Local Content Quota” ‘, a legal opinion prepared for the Ministry of Commerce by Tony Small, 28 August 1998
3 “We have unilaterally disarmed ourselves on trade but very few others have been so foolish. We’re now left with perfectly legitimate calls for local content and people saying ‘You can’t do that because of Gats’. This seems a bit ridiculous so we’re just working out the best way to handle it” – PM Helen Clark in the NZ Herald, 10 April 2000.
4 I. Bernier, Content Regulation in the Audio-Visual Sector, in: D. Geradin/D. Luff (pub.) The WTO and Global Convergence in Telecommunications and Audio-V4isual Services, 2004, p. 227
6 Dr Ruth Harley speech to SPADA 2014 “the Australian industry fought a trenchant battle in the GATS negotiations that saw their quota protected.”