Auckland University law professor Jane Kelsey, a critic of the agreement, commented: ‘There are specific new provisions in here, including the ability of a foreign investor to use the contentious investor state dispute settlement (ISDS) process when there is a dispute around an investment agreement such as a mining concession or a PPP contract, even if that's not provided for in the contract itself.’  

'Unaccountable' tribunals

Professor Kelsey added that under the ISDS provision, which gives foreign investors the power to sue the government for introducing legislation that harms their investment, unaccountable international tribunals will increasingly decide New Zealand's fate. She described these tribunals as ‘notoriously pro-investment’ and ‘a rule unto themselves.’

Burden of proof lies with investors

University of Sydney law professor Luke Nottage doesn't consider the changes to as chilling as its detractors make out, adding that the burden of proof lay with the investors. He believes that New Zealand has little to fear from litigious investors if the American experience of ISDS is anything to go by: ‘We have to remember the US has never lost an investor claim. It's successfully defended many under their FTAs ... which suggests that New Zealand and Australia and other developed countries at least should be able to avoid trouble.’

Supporters also argued that while New Zealand was giving up some sovereignty, the gains from being in an agreement encompassing 40 per cent of world trade were worth the price. Source: Radio New Zealand News