Hers is one of the first two in a series of expert peer-reviewed papers analysing the TPP from a New Zealand perspective.
The series was supported by a grant from the Law Foundation. Kawharu wrote the paper on investment.
She said the agreement provides an overall greater level of protection for foreign investors and their investments as compared with existing trade and investment treaties.
While there are some exceptions, for example on the screening mechanism for foreign investment, they are generally narrowly drawn.
Investors can also take claims to arbitration on the basis of alleged breaches of certain types of government contracts, something NZ has never agreed to before.
“While the text includes novel safeguards which are aimed at clarifying the purpose of the rules and preserving policy space, some issues are not addressed and the scope of the rules and the exceptions and therefore the Government’s right to regulate in the public interest, remains uncertain,” Kawharu said.
The second paper, by Auckland University law professor Jane Kelsey outlines various process aspects of the TPP, including the steps to be taken in NZ and the United States for ratification of the agreement, the pre-requisites to the agreement coming into force and the internal machinery for operation and enforcement of the agreement.
Kelsey said the 30-chapter agreement constrains domestic law and policy at central government level and in places by local government and state-owned enterprises, in diverse areas beyond traditional aspects of international trade.
Analysis of the US process suggests there is a significant chance there will be no vote in the US Congress before a new administration takes office in 2017, which might seek to renegotiate the agreement, add new side-letters or withhold certification of compliance by other countries until further changes are made.
The TPP Commission’s powers, chapter-specific committees and inbuilt renegotiations will supervise compliance and could extend the initial TPP obligations.
The cumulative opportunities for foreign states and corporations to influence domestic decisions might be burdensome and intrusive, Kelsey said.
The research papers are being posted on the website https://tpplegal.wordpress.com/nzlf-expert-paper-series/ as they are completed.
