Peru FTA includes rights for investors to sue governments

Peru FTA includes rights for investors to sue governments (ISDS), but no text available for independent assessment

“The announcement of the completion of the Peru-Australia Free Trade Agreement at the APEC meeting in Vietnam without access to the text again demonstrates the flaws in the secretive trade agreement process, in which governments announce agreements without making the text public and without independent assessment of the costs and benefits,” AFTINET Convener Dr Patricia Ranald said today.

“As usual, the government has announced the completion of the agreement, but the actual text is still secret, and is not available for media and public scrutiny. There is only a selected public relations summary of the content, and it is not clear when the full text will be made available. But the devil is always in the detail of the text, and the government’s claims of benefits can only be assessed when the full text is available. We call for full independent economic social and environmental assessments of the text before it is signed,“ said Dr Ranald.

Dr Ranald said the summary includes special rights for foreign investors to bypass national courts and sue governments for millions of dollars if they can argue that a domestic law or policy has harmed their investment. This is known as Investor-Street Dispute Settlement or ISDS, and was used by the Philip Morris tobacco company in its attempt to sue the Australian government over public health and plain packaging legislation.

“Australian opinion polls and numerous submissions to parliamentary inquiries have shown strong opposition to ISDS across the spectrum, ranging from the Productivity Commission and former High Court Chief Justice French to public health and consumer groups, environmentalists and unions,”
said Dr Ranald.

Dr Ranald said that the negotiation of the Peru FTA also exposes the Australian government’s uncertainty about the future of the TPP11, which includes both Peru and Australia. Peru is one of three TPP countries with which Australia does not already have an FTA.

“The Australian government would not have spent time and resources negotiating a separate agreement with Peru if it believed the TPP11 would be completed soon, or indeed at all, “said Dr Ranald. “Latest reports indicate that the TPP11 governments have still not reached agreement in principle about the elements of a deal.”

Representatives of Australia and the other TPP11 governments without the US are still meeting on the sidelines of APEC and are expected to make a statement about progress on Saturday November 11.

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