Most Read Contributor in New Zealand, September 2016
The Investment Protocol to the CER, signed today between New
Zealand and Australia, is an ambitious undertaking which adds a new
dimension to trans-Tasman economic relations.
The Protocol is much more than a simple agreement to
reciprocally raise screening thresholds for trans-Tasman
investments (which have been increased to $477m for inbound
Australian investments in New Zealand non-land business assets).
Indeed, that change is found only in the detail of the Annexes to
Rather, the Protocol is a form of bilateral investment treaty
(or BIT) which now accords trans-Tasman investors with a suite of
broad international law rights in addition to those enjoyed by
domestic investors of either country, including:
the right to national treatment (Article 5);
the right to most favoured nation treatment (Article 6);
the right to "fair and equitable treatment" and
"full protection and security" as those concepts are
understood in international law (Article 12);
freedom from performance requirements (Article 7); and
freedom from expropriation without full market compensation
The broad scope of those rights – which can be invoked
with respect to any governmental measure – has been
qualified by Annexes which exempt certain laws and sectors, by
side-letters between the parties and by general exception
provisions which permit governmental conduct pursued for social,
security and environmental reasons and to fulfil obligations under
the Treaty of Waitangi.
Nonetheless, these are powerful new international law rights,
very similar in scope to those granted by New Zealand to Chinese
investors in Chapter 11 of the NZ-China FTA.
What is different is the method of enforcement: a Chinese
investor which considers its rights to be breached can sue the New
Zealand government directly before an international arbitral
tribunal. That option is not permitted in the Protocol. The only
remedy is governmental consultations. Thus, in many respects (other
than screening thresholds), a Chinese investor remains in a
superior position to an Australian investor. In time, we can
foresee innovative attempts by trans-Tasman investors to seek to
invoke these powerful international law rights in some way before
New Zealand and Australian courts.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An actuarial review of the Invensys Australia Superannuation Fund showed it to be in surplus to the tune of $189.2 million. In mid 2003, the Invensys Group proposed to the trustee that the surplus be repatriated to the principal employer in the group.
As per a 2015 survey by Nasscom (the National Association of Software and Service Companies) India has paved the way to secure the third position in the world with three to four startups emerging every day, primarily in the areas of e-commerce, consumer services and aggregators.
The NSW Supreme Court held that the accountant was not liable for the investment losses suffered by its client.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).