The move appears consistent with deputy leader James Shaw’s willingness to consider what kind of trade deal would be required for the Greens to be able to support it, a subtle shift from the party’s previous apparent antipathy to global trade liberalisation.
Born, an international arbitration expert attracted headlines in New Zealand last year by rebutting claims by opponents to the Trans-Pacific Partnership about the supposed dangers of TPP’s investor state dispute settlement (ISDS) provisions.
A seminar with Born at Parliament this week was hosted by the Greens’ trade spokesman Kennedy Graham, a former Ministry of Foreign Affairs and Trade trade negotiator and diplomat.
The seminar was also attended by Greens deputy leader James Shaw and Green MPs Eugenie Sage and David Clendon, along with leading TPP critic Professor Jane Kelsey and former diplomat-turned-lobbyist Charles Finny.
The discussion turned exclusively on Born’s advocacy of the concept of including bi-lateral arbitration treaties (BATs) in international trade agreements as an efficient way to enable settlement of business-to-business disputes across borders.
He steered all discussion away from ISDS in an attempt to keep the discussion on constructive common ground.
The event was notable for being a Green Party event at which a speaker advocated strongly for the importance for businesses of having the greatest possible certainty in their dealings in international markets, of which efficient dispute resolution is a key element, especially in jurisdictions with less trustworthy rule of law than NZ.
BATs would allow parties to opt out of arbitration if they preferred to use the courts of one or both of the countries involved, but that was a recipe for uncertainty, cost duplication and the potential for “terrible injustices”.
Born contrasted the advantage of having recourse to binding private arbitrations over “the court in Wuhan, China or a jury in Houston, Texas” to settle a trade dispute.
He acknowledged the size of disputes involving small and medium enterprises might not justify the cost of arbitration in many cases, suggesting that online and documents-only hearings might be required for smaller claims.
To suggestions from Professor Kelsey that there was no clear public policy need for cross-border dispute resolution, Born responded the state’s interest in promoting BATs was “encouraging international trade” by establishing default rules.
“We discourage it if we subject small and large businesses to horrible injustices,” Born said.
Finny raised concerns that the forthcoming European Union-NZ free-trade negotiations would be the wrong venue to start discussion of BATs, since the EU agreement would be inevitably multi or pluri-lateral.
Born acknowledged legal systems in the EU, particularly the use of the Greek and Italian courts to “torpedo” dispute proceedings for decades was a big problem.
Graham is tasked this year with a rearticulation of the Greens’ position on free trade, with a policy paper due for release later in the year.
