Ban of investor rights to sue govts in giant RCEP trade deal
September 17, 2019
Community groups welcome ban of investor rights to sue governments from giant RCEP trade deal
“Community groups welcome the reports of a statement by the Malaysian Trade Minister Datuk Darell Leiking that Malaysia and other governments have succeeded in excluding foreign investor rights to sue governments (Investor-State Dispute Settlement or ISDS) from negotiations for the Regional Comprehensive Economic Partnership (RCEP),” Dr Patricia Ranald, AFTINET Convener said today.
The RCEP includes India, China, Japan, South Korea the ten ASEAN countries, Australia and New Zealand.
Dr Ranald said that Malaysia, India, Indonesia and New Zealand have policies against ISDS but this is the first public report that all RCEP countries have agreed to ban it from the RCEP deal. The RCEP talks have dragged on for seven years and ISDS opponents have made the ban a condition of finishing the negotiations this year. The report says that the ban may be reconsidered two years after the deal comes into force.
“All trade deals have government-to-government dispute processes. But ISDS is controversial because it gives special legal rights to foreign investors, enabling them to bypass national courts and sue governments for millions of dollars in international tribunals over changes in laws to protect public health and the environment. There are now 942 known ISDS cases, with increasing numbers against health and environment laws, including laws to address climate change,” said Dr Ranald.
“Legal experts like former High Court Chief Justice French and investment law experts have noted that these tribunals have no independent judiciary, precedents or appeals, take many years to conclude and cost governments millions to defend” said Dr Ranald.
“Even if governments win ISDS cases, they lose. The Philip Morris tobacco company lost its case against Australia’s plain packaging law, but it took 7 years for the decision and costs to be decided. It cost Australian taxpayers $24 million to defend, and only $12 million was recovered,” explained Dr Ranald.
This is a victory for community advocacy on ISDS, but the RCEP still includes includes longer monopolies for medicines that would delay the availability of cheaper medicines, and other harmful proposals,’ said Dr Ranald.
“The Australian government agreement to ban ISDS in the RCEP raises questions about why it is supporting ISDS in the Indonesian and Hong Kong trade deals currently being reviewed by the Joint Standing Committee on Treaties. We call upon the government to negotiate the removal of ISDS from these deals. Failing this, we call upon Labor, Greens and Centre Alliance which all have policies opposing ISDS, to oppose the implementing legislation for these deals in the Senate,” said Dr Ranald.
Read more in Dr Ranald’s article in The Conversation here.