Alternative to investor-state dispute tribunals put forward

The controversial tribunals used by foreign investors to sue governments may be no more if Europe gets its way.

New Zealand and the European Union put out an information paper on the scope of proposed trade talk negotiations last week, with the EU seeking to introduce a trade court under the Investor-State-Dispute Settlement (ISDS) system to hear disputes.

The European Union wants to introduce a trade court system under the Investor-State-Dispute Settlement system to hear disputes.
Photo: 123RF

The ISDS system has existed since the 1960s, and underpins all New Zealand’s trade deals, including the stalled Trans Pacific Partnership Agreement (TPPA).

Green MP Barry Coates said the controversial and secretive ISDS tribunals gave private firms too much power to sue governments for lost profits.

“If New Zealand wants an agreement with the European Union it’ll probably have to come into the 21st century, rather than follow the ISDS model in the TPPA.”

The government said it was interested in learning more about the EU’s proposal, but insisted it would not agree to an outcome that would prevent the government from regulating in the national interest.

Mr Coates said while the EU’s approach was a step in the right direction, ideally it should be domestic courts that ruled over trade disputes.

“Why do we need a separate international system for foreign investors and we don’t give it to anyone else?

“We don’t give it to people who may be victims of unjust actions by companies. We just give it foreign investors,” Mr Coates said. “That case has yet to be made.”

A former trade negotiator, Charles Finny, agreed that allowing domestic courts to rule on investor state disputes could be an option, given both Europe and New Zealand had strong institutions with a robust and independent judicial system.

“It may well be that the EU just decides well actually do we really need ISDS provisions particularly when negotiating with a country like New Zealand or a country like…

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