The prevalence of the corporation in America has led men of this generation to act, at times, as if the privilege of doing business in corporate form were inherent in the citizen; and has led them to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if these evils were the inescapable price of civilized life, and, hence to be borne with resignation (Judge Louis Brandeis)

This submission voices opposition to inclusion of Investor State Dispute Settlements (ISDS) in the New Zealand-Korea FTA, and to NZ political support for the Trans-Pacific Partnership (TPP) agreement, without sufficient greater analysis of the proposed benefits and effects on the New Zealand way of life.

There are several themes upon which this stance is based. These are observed through the presentations and various writings viewed and read to gain a better understanding of this issue:

- The concept of ‘Stable government’ – a campaign promise potentially inconsistent with ISDS.

- ISDS cases are likely to be inconsistent with the original purpose for which they were designed, as expressed by contemporary examples (such as Australia vs Philip Morris).

- Sovereignty: Corporations dictating policy to sovereign governments who are acting in the public interest as opposed to commercial self-interest.

- Transparency: Pro TPP actors demand to see information that affects their interests, but withhold important details from those affected by their decisions. The reason: their agenda is not in the public interest.

- Tolerance: for the detrimental global conduct of companies who stand to gain from passage of the TPP, yet act from commercial self-interest with little or no regard for local communities (Politicians who endorse the TPP at face value also endorse this conduct).

- Legitimacy: of secretive offshore tribunals that do not respect domestic court processes (as these are conducted by lawyers with conflicts of interest, and whose identities are secret).

- Local Government Act 2002, Section 82 re: consultation (Current negotiations for TPP are not respecting this, nor is the decision to include an ISDS clause in Korea-NZ FTA)

To begin with, the origins of the Investor State Dispute Mechanism deserve attention:

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ISDS processes were introduced into trade agreements decades ago to protect investors and their investments in countries lacking a strong system of law. For example, if investments were expropriated or nationalised by a rogue state or dictatorship, the ISDS authorised foreign state investors to bypass domestic legal systems and have their case heard by an external party. The external arbitrators could order the upholding of investor rights and state duties contained in an international trade agreement.

But over the past ten years the number of disputes taken to international arbitration has risen dramatically, and disputes have been lodged by corporations against countries with robust domestic legal systems (Townsend, 2015).

This excerpt is from a law, ethics & human rights lecturer at Australian National University. Her article includes the following quote expressing an unusual willingness on the part of governments who endorse this form of arbitration:

When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all … Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament (Tribunal Judge).

It is worth noting that the contemporary use of the ISDS mechanism serves a different purpose than it was originally designed for. Tienhaara (2014) states the following points:

- ‘ISDS is based upon commercial arbitration, fundamentally unsuitable for dealing with claims brought against states in a regulatory capacity’.

- There is growing awareness of the risks ISDS poses to public policy.- By the end of 2013, there were 568 treaty-based cases:

Argentina (53) Canada (22) and USA (15). 75% brought by US & European investors.

- Investment arbitration differs in many aspects from the formal domestic court system.

- Arbitrators lack independence of judges because they are chosen by parties to the dispute, and paid by the hour.

- They may act as arbitrators in one case, and legal representative in another (serious issue of conflict of interest).

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- There’s no system of precedence or process for appeals – making outcome of ISDS cases difficult to predict and uncertainty for regulators.

- ISDS is very expensive – governments can spend millions of taxpayer’s money defending themselves in arbitration, and may not recoup these costs even if they eventually win the case.

- ISDS is expensive for investors – so the system privileges large corporations with deep pockets over SME’s.

- ISDS privileges foreign corporations over domestic ones – who cannot avail themselves of the system (ie., increases power of big multi-nationals which are already incredibly powerful).

- To what end? There’s no substantial evidence there’s any benefit (to countries with robust legal systems).

- There’s an argument that all that’s required is ‘a bit of tinkering here and there’ to deal with ISDS procedural issues. However, to significantly deal with these, requires significant international effort along lines of development of international investment court (Even if there was such initiative, Australia’s involvement would require an outlay of government resources potentially spent on more important issues).

- Although banning ISDS would be a bold move, it would not be out of step with current global trend – states are increasingly distancing themselves from the system.

- The European Commission received approx. 150,000 submissions re: TTIP and suspended negotiations.

It is considered necessary to include a range of points about the ISDS read in preparing this submission. The numbers at the end of sentences denote the original authors cited by authors Fooks & Gilmore, whose paper is referenced below:

- Leaked text of a draft TPP chapter on ‘regulatory coherence’ suggests that negotiating parties are seeking to use the TPP to stipulate guidelines for regulatory rulemaking and review along the lines of the Better Regulation and regulatory review agenda in the European Union (EU) and USA.37 38 This represents a departure from existing investment agreements and is part of a global process of regulatory reform that draws heavily on US administrative law and its cost-benefit approach to regulatory review.23 39–41

- The formal purpose of the chapter is to establish rules for regulatory formation and review that will reduce the likelihood of TPP countries creating and maintaining regulations that are inconsistent with the agreement.42

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- Some of the guidelines proposed are consistent with well-informed, methodical decision-making.41 However, they also promise to increase tobacco companies’ capacity to influence health policy by increasing their access to the policymaking process, augmenting their ability to challenge regulation and reinforcing their existing information advantage.23

- Finally, the draft chapter also proposes that governments ensure their regulatory bodies provide access to ‘supporting documentation’ relating to regulatory measures, analyses and data. Such detailed disclosure exacerbates existing information asymmetries between business and government, thereby increasing the industry’s leverage to challenge decision-making.23

- ISDS is likely to produce a greater chilling effect for several reasons. The first concerns the existence of a pro-business decision-making culture cultivated by arbitral rules and working practices. Arbitral adjudicators are typically international investment lawyers drawn from commercial practice with no expertise in public health which raises questions about their competence to judge the efficacy of public health regulation and take account of the public policy consequences of their decisions.54 60–63 Arbitral rules also allow lawyers to rotate between roles as arbitrators and advocates for investors in a way that provides limited protection for conflicts of interest.25

- Another reason ISDS is likely to produce a more powerful chilling effect than the WTO’s dispute settlement process concerns the fact that companies can initiate complaints directly, rather than having to lobby a state to act on their behalf. One consequence of this is that the remedies arbitral tribunals can impose on legislating states (compensation or injunctive relief) are linked to the losses incurred by companies from breaches of agreements.

- ISDS is also likely to create a larger deterrent effect because of the greater uncertainty inherent in ISDS decisions. While ISDS tribunals cite previous cases in support of decisions, they do not have to base their decisions on those of previous cases.

- The lack of transparency in investor-state disputes presents an additional source of uncertainty. Proceedings are held in-camera and once a ruling is made by a tribunal there is no general requirement to publish the award or the basis upon which it is made.58 91 This lack of transparency creates an information imbalance, which puts low income and middle income countries at a disadvantage as investors with the financial resources to hire major international law firms specialising in this area enjoy greater access

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to this disparate body of arbitral decisions through professional networks.58 94

Fooks G, Gilmore AB (June 20, 2013).

One of the central points made in opposition to the TPP, and to ISDS, is the threat posed to a sovereign government’s ability to determine their own policies (free of external influence). Although written well before the TPP was conceived, the following description is a reasonable summary of why it is a threat, and why opposition is justified:

Globalisation is about making every country in the world conform to neo-conservative American prescriptions in macro-economic management, taxation principles, social policy, and the laws and practices governing employment while opening their markets to American investors. John M. Legge (cited in Beder, 2006).

Dr Patricia Ranald, AFTINET. Presentation to Australian Foreign Affairs, Defence and Trade Senate Committee, (August 2014):

- ISDS basically gives additional special rights to foreign investors to sue governments for damages in an international tribunal on the basis of a claim that domestic legislation or policy has harmed their investment.

- ISDS is developed from a system which originally was about companies for the actual appropriation of property – real property [But]:

- Over the last twenty years especially, it’s developed into a system based on principles of indirect expropriation which simply do not exist in most legal systems, and which are not available to domestic investors. In this sense, it is not about free trade – it is about giving special preferential treatment to foreign investors compared with domestic investors.

- The Howard government did not agree to it in the US-Australia FTA (precisely why the Philip Morris company had to go and find another agreement (Hong Kong) to sue under).

- The Productivity Commission rejected it in 2010, leading to previous government policy against ISDS.

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- The tribunal system used has two fundamental flaws (hence, lacks basic legal standards of most domestic legal systems which ensure independence and consistency of decisions):

o 1. No independent judiciary. Arbitrators are selected from investment law experts, who in the main have represented investor complainants, because the system is set up in such a way that only investors can complain.

o They can be an advocate one month, and an arbitrator the next (Unacceptable as a legal principle). In most legal systems, practicing judges cannot continue to be judges once they become lawyers, because of the obvious potential conflict of interest.

o They are paid by the hour, because they’re not employed as permanent judges (incentive for cases to take a very long time, an average of 3-5 years).

o 2. No system of precedence or appeal. This means that decisions about cases with similar facts can be inconsistent…Most legal systems require independent judges who must take note of previous decisions in an agreed and systematic way, and there are appeal systems which help ensure consistency.

o Many hearings are held in secret, hence there is only incomplete data. The data there is show there’s been a steep rise in cases in which foreign investors have sued over health and environmental legislation (not only old cases)…’systematic attempt to circumvent regulations’.

Quote relevant to the topic of what is the public interest:

The essence of democracy is the pursuit of policies in the interests of the people…An economy exposed to the free flow of capital, however, is obsessed with the need to appease international financiers to retain their ‘confidence’; the thrust of policies in such an economy, therefore, even in principle, is not towards serving the interests of the people but towards serving the interests of the speculators, which represents an inversion of democracy.

Prabhat Patnaik, Indian Professor of Economics (Beder, 2006)

Dr Matthew Rimmer, Australian National University Law:

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- Sets context by explaining how the Australia-US FTA signed by Howard government did not contain an ISDS clause.

(Quotes retired judge Elizabeth Evatt on topic of ISDS):

“Investment arbitration as currently constituted is not a fair, independent and balanced method for the resolution of disputes between sovereign nations and private investors” (Critical issue).

- Relates this to Australian regulation for plain packaging of cigarettes, where the High Court (2012) ruled 6-1 decisively in favour of the Commonwealth government v Philip Morris, resulting in the latter trying to attack the measure via an investment clause.

- Also cites Canadian Supreme Court refusal to grant Eli Lilly special leave to appeal rejection of patent application, with subsequent ISDS action taken under US-Canada FTA (Important themes for committee to note).

- Also, the influence of ISDS on role of government (to act in the public interest v the particularly concerning ‘chilling impact’ upon public regulation and government activity). Noted as being particularly prominent with the rise and rise of disputes in relation to ISDS.

- Regulatory chilling refers to threats of investment actions used against governments across a range of issues (Cites NAFTA example, with Canadian Parliament deluged by various threats due to their policy proposals).

- UNCTAD report, which highlighted the rise of ISDS cases and significant issues in relation to public regulation and public liability (Pertinent issue: attention to some of the costs awarded when entering into agreements with ISDS clauses).

o By end of 2013, 98 states were respondents in total of 568 cases.

o Overall number concluded: 274o 43% in favour of state, 31% in favour of investoro Approx. 26% were settled.

- ‘Magical’ thinking to assume tobacco industry action v the Australian government is ‘one-off’.

- The global law firms involved in actions have shown a great deal of creativity in terms of the sorts of actions that they have brought.

- UNCTAD emphasises that claimants have challenged a broad range of government measures including: changes relating to investment incentive schemes, alleged breaches of contracts, allege direct or defacto expropriation, revocation of licenses or permits, regulated energy tariffs, land zoning decisions, invalidation of patents..

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- It’s important to engage with empirical evidence in terms in which the investment regime has operated.

Regarding comparison of theTPP to ‘Trojan horse’. This is apt because there are many similarities. We should not just look this gift horse ‘in the mouth’ (note what is said/unsaid), but in the belly also (account for the hidden intent).

Because of the threat posed to the ability of sovereign nations to determine their own policies on a range of issues, this is a constitutional matter. Passage of the TPP is akin to the citizens of Troy allowing the wooden horse to pass within the gates, because they failed to recognise it was too good to be true. Choice is involved, but it is not informed, since the people affected do not have all the details. The apt comparison of this concept is observed in different examples: At the front of anti-TPP marches in NZ; the descriptions of ISDS by presenters to the Australian Senate Committee and in Parliamentary speeches, the European Friends of the Earth presentation about TTIP, and in the descriptions of TradeWatch spokesperson re: the TPP.

Viewing coverage of the 2012 Presidential election campaigning, the following statement was noted for its relevance to the TPP. It is included here because one of the main criticisms levelled at the TPP is the secrecy surrounding its negotiation:

"When a politician tells you a deal is so good they can't tell you what's in it, be wary. There's usually something else going on".

President Obama, 2012 Campaign speech. Manchester, NH.

In the Australian ABC Lateline programme, the topic of safeguards was discussed:

Dr Kyla Tienhaara (Australian National University): Particularly in the United States, there are ways for corporations, large corporations, that have a vested interest in for example, Investor State Dispute Settlements, of gaining access to the negotiating text and knowing what is going on, and therefore being able to influence what’s going on.

Reporter (Tom Iggulden): The Trade Minister is accusing opponents of distorting and misrepresenting concerns over Investor Clauses to undermine public confidence in the TPP. His office told Lateline there’s very little to fear, adding would be safeguards to protect Australian law in anything the government sign up to.

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Tienhaara: The problem is that the safeguards as they currently stand, are not sufficient. They have been used by the US for the past decade, and it has not stopped cases from developing.

Author’s note: it’s not the opponent’s stance undermining public confidence in the TPP – it’s the global conduct of the parties who stand to gain from passage of the TPP, including those carrying out legal actions right now against sovereign governments for reasonable legislation.

Daily newspapers frequently feature quotes under the heading ‘thought for today’. One of these observed was Socratic philosophy that contains globalisation as its theme:

If all our misfortunes were lumped together, with everyone forced to take an equal share, people would be glad to take back their own.

It refers to distribution, not just of wealth, but of opportunity. One concept noticed is that of ‘policy space’ necessary for governments to deal effectively with social matters, but which is threatened by corporate interests whose intent is to intimidate or ‘chill’ to discourage from a policy.

This is included to discuss what pro-TPP voices regard as benefits if globalisation demands interaction with the world beyond New Zealand’s borders, and accounting for the activities of those interests whose lobbyists are heavily involved in negotiations for the TPP.

When we say ‘benefits’, does that account for the harm they are doing in developing nations? Speaking about a $4 million fund set up by Michael Bloomberg and Bill Gates to support these nations facing legal action from the tobacco industry, Paul Grogan, a representative from the Cancer Council Australia, states: ‘The tragedy is that the brunt of tobacco related disease burden and premature death is disproportionately imposed on developing countries’ (Kerin, 2015).

This is another point about safeguards – that regardless of promises to include them in agreements with ISDS clauses, the ‘state’ party to that agreement has to account for the fact globalisation means the ‘investor’ party operates (often with a detrimental influence) in nations whose populations are disproportionately affected. The consideration for New Zealand has to be ‘does NZ endorse this activity by being pro-TPP?’ On balance, what are the real benefits if NZ’s support for the TPP also legitimises these activities? In the Pacific rim, New Zealand sets an example that other countries follow. Endorsing activities that harm populations in this region sets a bad example.

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For example: during one negotiating round in Bali for the TPP (2013), when the event was sponsored by the tobacco industry, despite the harm done to the Indonesian population by these products.

This ABC programme also features the viewpoint of Australian Chief Justice Robert French on the subject of ISDS, saying: ‘My concern is with the judicial system and its authority and finality of its decisions’, and that these clauses ‘raise potentially serious question about the interaction of such an award with the domestic judicial system which may be called on to enforce it’.

Author’s note: his words can be compared with the campaign promise of ‘stable government’. It’s one perspective to say that supporters for inclusion of ISDS clauses do not rate the ability of the NZ legal system to deal with cases that might arise, since these would be conducted in these secret offshore tribunals instead of the investor having to rely on the New Zealand legal system.

Korten alludes to the threat posed to stability when referring to money flows between countries:

..the TPP guarantees the right of speculators to destabilize national economies through the manipulation of exchange rates and financial markets, without interference from national governments (April 2015).

How is the Investor-State Dispute aspect of the TPP consistent with the Local Government Act 2002, which states the purpose as:

a) to enable democratic local decision-making and action by, and on behalf of, communities; and

b) to promote the social, economic, environmental, and cultural well-being of communities, in the present and the future (Cheyne, O’Brien and Belgrave, 2008).

The answer will have to account for section 82, setting out principles of consultation. The expectations TPP backers have of local grass-roots communities are inconsistent with these principles, irrespective of alterations to this Act in the years since. The point is that this purpose is a worthy focus that does not require changing, nor should it be threatened by external influence.

In a seminar about the northern hemisphere equivalent of the TPP (TTIP), the Director-General of The European Consumer Organisation (BEUC)

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referred to the inherent complexity posed by the horizontal and vertical strands to TTIP: regulatory cooperation (Something ‘with no clear definition’, ie., it is arbitrary), and ISDS as one aspect. Speaking about the number of cases brought since 2003, she stated:

When you look at statistics, even in the minimum of cases, forty-three percent of cases the government wins. In one hundred percent of cases, the taxpayer loses because even if the government wins, such a huge amount of money that has to be paid for the arbitration system to work.

So, with combination of regulatory cooperation and ISDS, there are avenues for double corporate pressure to prevent legislators doing their job properly, and that is certainly against the public interest – therefore illogical and unacceptable….ISDS is too flawed and you should get rid of it (Monique Goyens, December 2014).

Cecelia Olivet – gravy train, earnings for business:

Uruguayan international investment regime specialist Cecilia Olivet presented to Pakatan Rakyat (People’s Alliance) in Malaysia in late 2013, on the topic of ISDS tribunal neutrality. Her words are relevant to this country, as summarised here:

- The underlying theme of justification for independent tribunals for ISDS implies that national courts are not capable or robust enough to resolve these disputes.

- Research conducted into the alleged neutrality of the arbitration system reveals that only 15 people have resolved more than 50% of all the investment treaty disputes (a tremendous concentration of power and decision-making in private individuals).

- Also looked into who these people are, and where they come from: very strong commercial background as opposed to a public interest background, therefore they usually defer to the interests of the investors and the corporations who are suing.

- Also, they have sat on board of directors of Multi-National corporations. Conflicts of interest are emerging out of these facts.

- ‘These are not your typical judge or arbitrator. These people have multiple roles and one of those is also to act as representative of the investor in the same tribunal’.

- Whilst in some cases they are an arbitrator, in another case they are defending, or arguing for the investor or the State, but in general it is the investor that is suing in this arbitration panel.

- ‘So, it’s a very in-crowd system that actually allows for all these conflicts of interest to emerge’.

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- The bottom line: it has become a very lucrative industry in our view. These arbitrators would earn around $3000 per day. We have to remember these trials last years. They probably amount to billions sometimes in the fees they earn. There’s a very strong incentive for them to arbitrate, and keep these cases coming.

- Imperative: to question the neutrality of this arbitration system.

The boom in arbitration has created bonanza profits for investment lawyers paid for by taxpayers. Legal and arbitration costs average over US$8 million per investor-state dispute, exceeding US$30 million in some cases. Elite law firms charge as much as US$1,000 per hour, per lawyer – with whole teams handling cases. Arbitrators also earn hefty salaries, amounting up to almost US$1 million in one reported case (Olivet and Eberhardt, 2012).

Further to the theme of self-determination and the ability of sovereign governments to set their own policies free of potential coercion is this viewpoint:

Now people are worried about widening inequality are also worried about something else: it’s not upward mobility, it’s not even trust. They are worried about the undermining of democracy. When so many resources, so much money, so much wealth, so much income accumulates at the very top that with money comes the capacity to control politics.Robert Reich – Inequality for all

Matthew Rimmer (ANU) – appearance before Committee for Foreign Affairs, Defence and Trade:

Notes trade law & intellectual property experts Andrew Mitchell and Tania Voon, whose book The Global Tobacco Epidemic and the Law contains a chapter on ISDS:

Key point: ISDS is entirely unsuited to dealing with questions about public policy in relation to public health, both in terms of some of the procedural aspects of ISDS and also in terms of the standard issues in relation.

He also quotes WHO head Dr Margaret Chan, speaking at the World Health Assembly, 2014:

One particularly disturbing trend is the use of foreign investment agreements to handcuff governments to restrict their policy space. For example, tobacco companies are suing governments for compensation for lost profits following the introduction for valid

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health reasons of innovative cigarette pack imagery. In my view, something is fundamentally wrong in this world when a corporation can challenge government policies introduced to protect the public from a product that kills.

Speaking at the World Conference on Tobacco or Health in Abu Dhabi, 2015, she stated:

As the battle for tobacco or health moves into the courts, the very authority of sovereign governments to regulate in the public interest is being undermined. This is an extremely dangerous trend.

Author’s reflection: Tobacco manufacturers who took on the Australian government over their plain packaging measure in 2011-2012 through the Australian Supreme Court were handed a loss, with six judges out of seven ruling against them. Not willing to accept this loss, the manufacturers have sought legal proceedings via the WTO, and it is the outcome of these proceedings which New Zealand have chosen to await before proceeding with the measure here.

This generates the question:

Why do the NZ government place greater store on the authority of the WTO panel than the Australian Supreme Court, who accounted for all the arguments, and still ruled in the Commonwealth’s favour?

Trade is an activity which depends on systems which tobacco consumption negates. The legal status of cigarettes is premised upon the end-consumer understanding and accepting that (independent of any government policy approach). The very trade rules cited by manufacturers as being breached by government policy are in fact inconsistent with the effects of tobacco on the human body, and therefore manufacturers do not represent an authentic stance on trade policy.

Therefore, when speaking of trade, it has to be acknowledged that manufacturers have little or no authority to place tobacco above policy which is conducive to health, since the effects of consumption undermine factors of production vital to carry out trade activity, especially in the long-term.

This submission opposes inclusion of investor-state dispute clauses in trade agreements, and this stance observes that a prominent

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contemporary example of why these clauses pose a threat is the legal action against the Australian government over their plain packaging law. To this author, that suggests the TPP is already contaminated, despite the fact that other corporate lobbyists are involved.

In summary, this submission wants members of the committee to:

- Tell the government that ISDS clauses in current and future trade agreements are unwelcome, since they increase the likelihood of foreign investors suing the New Zealand government.

- Account for the global detrimental influence of many parties to the TPP who stand to gain from its passage, and ensure the New Zealand government does not endorse this influence.

- Investigate the possibility that due to the effects of consumption on the end-consumer, tobacco manufacturers are in breach of the trade rules they cite in opposition to plain cigarette packaging. This understanding should encourage the New Zealand government to proceed with their own law.

- Encourage suspension of negotiations for the TPP in favour of a public consultation over the effects (as occurred in the Northern hemisphere with the TTIP).

- Investigate further the likely effects on the NZ way of life with passage of the TPP.

References

Beder, S (2006) Suiting themselves: How Corporations Drive the Global AgendaLondon, UK: Earthscan.

BEUC (15 December 2014) ’Investor-State Dispute Settlement: The TTIP’s Achilles heel?’ 1 of 4https://www.youtube.com/watch?v=TvDtn1_UnxU (Accessed 6/4/15)

Dr. Margaret Chan: Remarks at the World Conference on Tobacco or Health (18 March 2015)http://www.bloomberg.org/blog/dr-margaret-chans-remarks-world-conference-tobacco-health/(Accessed 7/4/15)

Cheyne, C., O’Brien, M., and Belgrave, M. (2008, 4th Ed) Social Policy in Aotearoa New Zealand.

Melbourne, Oxford University Press

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Crealy, L. (9 February 2015) Fears over murky trade deal detailshttp://www.abc.net.au/pm/content/2015/s4176644.htm (Accessed 4/4/15)

Fooks G, Gilmore AB. International trade law, plain packaging and tobacco industry political activity: the Trans-Pacific Partnership. Tob Control Published Online First: doi:10.1136/tobaccocontrol-2012-050869 http://tobaccocontrol.bmj.com/content/early/2013/06/19/tobaccocontrol-2012-050869.full.pdf+html (Accessed 2 April, 2015)

Iggulden, T. (31 March 2015) What will the TPP mean for Australia?http://www.abc.net.au/lateline/content/2015/s4208670.htm (Accessed 4/4/15)

IP Observatory. (10 August 2014) A Risky Business: Dr Kyla Tienhaara on Investor-State Dispute Settlement https://www.youtube.com/watch?v=8LC3z4L7Tgc (Accessed 4/4/15)

IP Observatory. (10 August 2014) Special Privileges: Dr Pat Ranald from AFTINET on Investor-State Dispute Settlement https://www.youtube.com/watch?v=i4-AkFPsBVo (Accessed 4/4/15)

IP Observatory. (10 August 2014) Trojan Horse Trade Clauses, Democracy, and the Rule of Law: Dr Matthew Rimmer https://www.youtube.com/watch?v=J-OpnHRbNME (Accessed 4/4/15)

IP Observatory. (10 August 2014) Dr Matthew Rimmer on Big Tobacco, Trojan Horse Trade Clauses, and Plain Packaging #ISDS https://www.youtube.com/watch?v=kmtAmE62_jo (Accessed 4/4/15)

IP Observatory. (30 October 2014) Senator Peter Whish-Wilson on Investor-State Dispute Settlement #ISDS #NoISDS Bill https://www.youtube.com/watch?v=bJUlLxiJbAM (Accessed 4/4/15)

KeiWashDC. (December 8 2013) Patricia Ranald on ISDS in the TPPhttps://www.youtube.com/watch?v=HEk6jJIjPsI (Accessed 4/4/15)

Kerin, L. (19 March 2015) Australia's plain packaging of cigarettes commended at world conferencehttp://www.abc.net.au/worldtoday/content/2015/s4200722.htm (Accessed 8/4/15).

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Kini TV (6 December 2013) Foreign expert: How neutral are the arbitrators in TPPA disputes?https://www.youtube.com/watch?v=snQQrjofO78 (accessed 7/4/15)

Kornbluth, J., Reich, R. (2013) Inequality for All (documentary)United States, RadiUS-TWC

Korten, D (9 March 2015) Do Corporations Really Need More Rights? Why Fast Track for the TPP Is a Bad Idea http://www.yesmagazine.org/new-economy/do-corporations-need-more-rights-fast-track-tpp (Accessed 4/4/15)

Korten, D (15 April 2015) http://www.yesmagazine.org/new-economy/trade-rule-illegal-favor-local-business-tpp-leakwikileaks?utm_source=YTW&utm_medium=Email&utm_campaign=20150417(Accessed 19/4/15)

Olivet, C., Eberhardt, P. (27 November 2012) Profiting from injustice: how law firms, arbitrators and financiers are fuelling an investment arbitration boom. http://www.tni.org/briefing/profiting-injustice (Accessed 7/4/15)

Tienhaara, K (26 March 2015) These TPP safeguards won't protect us from ISDShttp://www.abc.net.au/news/2015-03-26/tianhaara-these-tpp-safeguards-wont-protect-us-from-isds/6350358 (Accessed 6/4/15)

Townsend, R. (15 November 2013). When trade agreements threaten sovereignty: Australia bewarehttps://theconversation.com/when-trade-agreements-threaten-sovereignty-australia-beware-18419 (Accessed 2 April 2015)

Vincent, M. (27 March 2015) Leaked TPP plan raises health, environment concernshttp://www.abc.net.au/worldtoday/content/2015/s4206013.htm (Accessed 4/4/15)

http://en.wikiquote.org/wiki/Louis_Brandeis (Accessed 24/2/14)

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