This submission reccommends that the China-Australia Free Trade Agreement (ChAFTA) be renegotiated by the Government to exclude investor-state dispute settlement (ISDS). As it stands the ISDS provisions in ChAFTA have limited application, covering only disputes that purportedly concern discrimination. However, the parties commit to further negotiations including on the addition of provisions in controversial areas such as expropriation and the minimum standard of treatment.
This submission by Kyla Tienhaara outlines serious problems with some of the provisions that have been completed. The key points are:
- ISDS is a very expensive process that lacks democratic accountability;
- Legitimate public policies, particularly in the area of environmental protection, have been challenged by corporations under ISDS in many countries;
- The ChAFTA does not provide sufficient transparency or third-party participation in ISDS;
- Negotiation of the most contentious provisions (e.g. on expropriation, the minimum standard of treatment) have been deferred until after the ratification of ChAFTA and it is unclear if future amendments to the investment chapter will be subject to parliamentary review.