Two dozen rogue “delegates” disrupted the corporate-sponsored welcome gala for the high-stakes Trans-Pacific Partnership (TPP) trade negotiations yesterday with a fake award ceremony and “mic check.” Other activists, meanwhile, replaced hundreds of rolls of toilet paper (TP) throughout the conference venue with more informative versions, and projected a message on the venue’s facade.

2012 Corporate Power Tool Award

The first action began when a smartly-dressed man approached the podium immediately after the gala’s keynote speech by Ron Kirk, U.S. Trade Representative and former mayor of Dallas. The man (local puppeteer David Goodwin) introduced himself as “Git Haversall,” president of the “Texas Corporate Power Partnership,” and announced he was giving Kirk and other U.S. trade negotiators the “2012 Corporate Power Tool Award,” which “Haversall’s” partner held aloft.

The crowd of negotiators and corporate representatives applauded, and “Haversall” continued: “I’d like to personally thank the negotiators for their relentless efforts. The TPP agreement is shaping up to be a fantastic way for us to maximize profits, regardless of what the public of this nation—or any other nation—thinks is right.”

At that point, the host of the reception took the microphone back and announced that the evening’s formal programming had concluded. But Mr. Haversall confidently re-took the microphone and warmly invited Kirk to accept the award.

Kirk moved towards the stage, but federal agents blocked his path to protect him from further embarrassment. At that point, a dozen well-dressed “delegates” (local activists, some from Occupy Dallas) broke into ecstatic dance and chanted “TPP! TPP! TPP!” for several minutes until Dallas police arrived.

Conferencescustom toilet paper

The activists disrupted the gala to protest the hijacking of trade negotiations by an extreme pro-corporate agenda. “The public and the media are locked out of these meetings,” said Kristi Lara from Occupy Dallas, one of the infiltrators. “We can’t let U.S. trade officials get away with secretly limiting Internet freedoms, restricting financial regulation, extending medicine patents, and giving corporations other a whole host of other powers allowing them to quash the rights of people and democracies, for example by offshoring jobs in ever new ways. Trade officials know the public won’t stand for this, which is why they try to keep their work secret—and that’s why we had to crash their party.”

There is mounting criticism of the U.S. role in pushing the negotiations forward in secrecy, despite the public’s overwhelming disagreement with TPP goals. (“Buy American” procurement preferences are supported by over 85% of Americans, but U.S. trade negotiators are preparing to accept a ban on such preferences. Two weeks ago, 69 members of Congress sent a letter to President Obama asking him not to accept that ban.)

Many are calling the Obama administration duplicitous: while the administration publicly hypes a plan to revitalize American manufacturing and create jobs in the U.S., U.S. trade officials push for new “investor rights” that would make it easier for American companies to lay off domestic workers and open plants overseas.

“The TPP has been branded as a trade ‘negotiation’ by its corporate proponents, but in reality it’s a place for big business to get its way behind closed doors,” said Pete Rokicki of Occupy Dallas. “This anti-democratic maneuver can be stopped if the public gets active—just look at the movement that killed the ill-advised SOPA (Stop Online Piracy Act) law a few months ago. That’s why Obama’s trade officials lock the public, the press and even members of Congress from the trade negotiation process.”

“We’re really happy to know that even in their most private moments, US trade reps are reminded that a vast majority of the public stands opposed to corporate-friendly, closed-door trade deals like the TPP,” said Sean Dagohoy from the Yes Lab, who assisted in the actions.

Let’s start with the facts of just how many jobs are provided by transnational corporations. In 2011 17.4% of NZ’s workers were employed by foreign-owned companies (source: Statistics New Zealand – Business Demographic statistics). A perusal of the last decade of those statistics shows that the highest percentage attained by foreign-owned companies was in 2000, when they employed 20.7% of the NZ workforce. Those figures are not be sneezed at but they’re hardly the pot of gold at the end of the rather tawdry rainbow with which we’re being bedazzled. The vast majority (four out of five) of Kiwi workers work for New Zealand-owned companies, which the transnationals need to enable them to operate their businesses in this country. So they need us more than we need them. Not only are they not big employers, in many cases they have actively contributed to mass unemployment and/or a serious downgrading of NZ workers’ conditions (Telecom is the only example I need to give). By definition, transnationals are mobile and will ditch their Kiwi workers and move to another country when it suits them. There has been no shortage of examples of that.

Let’s start with the facts; transnational corporations only provided one in five jobs in New Zealand.

In fact, New Zealand is a poorer country with foreign “investment” (which, in the vast majority of cases, comprises takeovers, not investment at all). Transnational corporations make massive profits out of NZ ($10.3 billion net left NZ in the year to September 2011), so they need our money more than we need theirs.

The editorial says foreign firms “increase revenue to the Government through PAYE and other taxes”. Don’t assume that at all. In 2009 the four big Australian-owned banks settled out of court with IRD for $2.2 billion of taxes they had avoided (that settlement was for less than the sum sought, and avoided penalties which would have been imposed by the court). It was the biggest tax avoidance case in NZ’s history. Right now IRD is pursuing a number of big Australian-owned companies through the courts for tax avoidance. Transnationals can use tax dodging mechanisms such as transfer pricing which are not available to purely domestic companies.

"Transnationals can use tax dodging mechanisms such as transfer pricing which are not available to purely domestic companies"

CAFCA runs the annual Roger Award for the Worst Transnational Corporation Operating in Aotearoa/NZ. A financial analysis of one winning company’s accounts revealed that it had paid no NZ tax in the previous five years and injected basically no money into the economy here, operating almost entirely on borrowed money. It was a liability not an asset to the NZ economy. And that is just one example that CAFCA studied in detail.

The editorial concludes by invoking the hoary old spectre of North Korea. I’m glad you raised that, because the level of pro-foreign investment propaganda and John Key personality cult in the transnational-owned corporate media could show the Pyongyang apparatchiks how to do it properly. By comparison they are rank amateurs.

Global Crises, Regional Solutions

To date, only the Australian government has taken that position, consistent with the approach it took in its free trade agreement with the United States in 2005. However, that would only exclude Australia from such powers.

The open letter is signed by senior retired judges, former officers of Parliament and international advisers and current legislators, along with legal academics, practitioners, from the countries that are currently or potentially involved in the TPP negotiations (2).

Former Speaker of the Parliament Professor Margaret Wilson: "it is an essential element of any democracy that litigants have access to a competent non-corrupt court system to resolve disputes. It is fundamental to any understanding of the rule of law."

The principal signatories are eminent jurists who have held high public office. including retired judges, Sir Edmund Thomas from New Zealand and Justice Elizabeth Evatt from Australia, former Speaker of the Parliament Professor Margaret Wilson, Bruce Fein, the Associate Deputy Attorney General under the Reagan Administration, and leading investment law scholar Professor Sornarajah from Singapore.

The leader of the New Zealand First Winston Peters and Green Party co-leader Metiria Turei, as well as former Labour Party President and MP Andrew Little, have also signed.

‘This is a New Zealand-led initiative, as New Zealand is one of the few parties to the TPPA negotiations that is not already committed through a free trade agreement to an investor-state disputes process with the United States’, said Professor Jane Kelsey, from the University of Auckland, who helped organise the letter.

‘The implications of investor-state disputes are therefore far more significant for us than most of the other TPPA countries.’

“Within ten days over 100 jurists had endorsed these concerns. There has been especially rapid support from Canadian lawyers, based on their experience with the North American Free Trade Agreement (NAFTA)’, said Professor Kelsey.

The letter expresses concern that foreign investors are being granted greater rights than are provided to domestic firms and investors under the Constitutions, laws and court systems of host countries and increasingly use this mechanism to skirt domestic court systems.

Professor Wilson observes “that it is an essential element of any democracy that litigants have access to a competent non-corrupt court system to resolve disputes. It is fundamental to any understanding of the rule of law.”

“New Zealand has such a court system so why give away the right to access it? There is no need to submit to the Investor-State dispute settlement procedure, so why should we carelessly give away our autonomy in this instance. This is an instance in which we should follow Australia and take a stand for the right to make the decisions that affect us.”

Former Court of Appeal judge Sir Edmund Thomas reflects that “The investor-state dispute arbitration provisions may have initially been well-intentioned as a means of encouraging foreign investment, but in practice they have had an impact that could not have been foreseen.”

“In short, the provisions have been used to override the jurisdiction of domestic legal systems; have failed to meet accepted perceptions of the rule of law and the separation of powers; have undermined the basic principle of judicial independence; and have created a significant inequality or imbalance between foreign investors and domestic investors and producers. No sovereign, self-respecting state should accept the dispute arbitration provision in its present form.”

Another signatory, Professor Bryan Gould, predicted “the TPPA seems likely to give foreign investors greater legal rights against our government than any New Zealand investor will enjoy.”

NZN4S Campaign Patron Professor Bryan Gould: “the TPPA seems likely to give foreign investors greater legal rights against our government than any New Zealand investor will enjoy”

“Those rights could even allow a foreign investor to argue before a specially constituted international tribunal that a future New Zealand government, elected with a mandate to change the law, should pay massive compensation for doing so. The government might even be ordered to stop our courts from enforcing their own decisions.”

“In other words, it would mean a significant loss of the power of democratic self-government.”

The letter will be delivered to the lead negotiators of each country at the start of the round of TPP negotiations on Dallas today. It will remain open for other lawyers concerned about the incursions of these private foreign investment tribunals on domestic legal processes.

Non-lawyers will also be invited to sign the letter. Already, prominent trade economist Professor Jagdish Bhaghati from Columbia University and former Vice-Minister of Environment Jose de Echave from Peru have done so.

1 – A background paper is available at here

2 – Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, United States, Vietnam, plus Canada, Japan and Mexico

ALSO SEE

Right to sue needs to be exempt from TPPA (TV3)

US firms to control NZ legislation? (Stuff)

Lawyers fight TPP right to sue Govt (NZH)

A study released by the NZ-US Council today to coincide with its 10-year anniversary suggests a multi-billion dollar bonanza to New Zealand from the Trans-Pacific Partnership agreement.

Professor Jane Kelsey, a critic of the agreement, called the move a “tired and discredited tactic that aims to garner support for an increasingly unpopular negotiation and avoid a real inquiry into what it means for New Zealand ”.

“The study doesn’t even talk about New Zealand except in passing or among the 23 countries listed in the tables”.

".. optimistic estimates in Australian studies had inflated the expected economic gains, ‘the economic value of Australia’s preferential BRTAs has been oversold"

“The economic modeling it uses bears no relation to the real world of the negotiations. The US government still insists it won’t give New Zealand any market access for dairy products. With an election in November, that’s not about to change”.

“Even staunch supporters of free trade have strongly criticised the econometric modeling used in such studies, because they ignore the costs and assume the best possible of outcomes,” she said.

Australian Productivity Commission Bilateral and Regional Trade Agreements in 2010 said optimistic estimates in Australian studies had inflated the expected economic gains, ‘the economic value of Australia’s preferential BRTAs has been oversold’ (p.xxviii).

Today’s report claims to have adopted the Productivity Commission’s guidelines, yet it still concedes that ‘the scenarios used in this study to analyze ambitious paths of future agreements… might strike some as unrealistic’ (p.4).

The Australian Productivity Commission also said governments should avoid provisions that allow investors to sue the government directly lack a clear economic rationale and carry policy and financial risks. Intellectual property provisions should only be included after studying their economic impacts. The NZ-US Council report ignores any issues.

If the NZ-US Council really believes this is so good for New Zealand they would insist on lifting the shroud of secrecy and release the draft texts

“If the NZ-US Council really believes this is so good for New Zealand it should urge the government to drop the shroud of secrecy, release the current draft texts and its negotiating mandate, and support the parliamentary hearing that it has so far vetoed. Only then can we make an informed and balanced assessment of its implications for our country and our future”, said Professor Kelsey.

What is being done about four Crafar farms bought by Natural Dairy without OIO consent?

The entirely predictable reaffirmation by the Government of its approval for Shanghai Pengxin to buy the Crafar Farms only involves 16 of them.

But the fact that has disappeared from the political and media spotlight is that there were 20 Crafar Farms for sale.

So what has happened to the other four? You never hear the Government mentioning them. It’s is too politically embarrassing.

Why? Because, in 2010, they were bought by Natural Dairy, the first Chinese would-be buyer of the Crafar Farms.

Remember Natural Dairy? At the time it was feted by the Government in exactly the same sort of terms as Shanghai Pengxin is now.

But it didn’t take much digging to establish that this company, fronted by May Wang, was a very dodgy outfit. So dodgy that the Overseas Investment Office (OIO) and the Ministers nominally in charge of foreign investment actually rejected the bid as not being in the national interest and because the people owning or controlling the company were deemed to be not of good character (as specified in the 2005 Overseas Investment Act). That was such a rare decision in New Zealand’s “come on in and help yourselves” foreign investment regime as to be almost unique. So you can rest assured that it must have been very shonky indeed to fail that test.

Mind you, nothing was done about any of these people not of good character. May Wang is among those facing serious charges in connection with the failed bid – but in Hong Kong, not New Zealand. That says a lot about our enforcement agencies.

But wait, there’s more. In 2010, before its bid had been decided upon, Natural Dairy went ahead and bought four of the Crafar Farms. When asked about this after its bid was rejected, the company said that it had done so in the expectation of retrospective consent from the OIO (which is standard operating procedure for that body, as it was for its predecessor, the Overseas Investment Commission).

Furthermore, Natural Dairy said that it had bought those four farms fair and square and has no intention of handing them back, possession being nine tenths of the law. Never mind minor legal details such as them having been explicitly denied official permission to do so.

The OIO can’t even muster the energy to throw its rubber stamp at Natural Dairy, let alone throw the book at it.

So what has happened to get them back? You guessed it – nothing. The Campaign Against Foreign Control of Aotearoa (CAFCA) wrote to the OIO, under the Official Information Act, and asked if those four farms had been surrendered. We received a reply (23/4/12) saying:

“No. There are no provisions under the Overseas Investment Act 2005 that authorise the ‘surrender’ of assets, if the assets are acquired without consent. Under section 47 of the Overseas Investment Act, the High Court has a discretion to order disposal of property. However, the Court must first be satisfied that a person has contravened the Act or committed an offence under the Act. The Overseas Investment Office is considering a number of complex matters as part of our ongoing investigation into the four farms purchased by companies associated with May Wang. All information relating to the investigation is withheld under section 6(c) of the Official Information Act as its release would prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial”.

What a bloody joke! Here we have the most controversial foreign land purchase in recent history, involving a company whose bid was declined on grounds of lack of good character. This outfit blithely went ahead and bought four of the farms without waiting for official permission (which was declined) and then says “catch us if you can”.

Let’s hear from the Prime Minister: Natural Dairy bought four farms that they didn’t have permission to buy. Cancel those sales and strip Natural Dairy of their ownership. End of story

The Overseas Investment Act is an ass and so is the so called “oversight and enforcement” regime. The OIO can’t even muster the energy to throw its rubber stamp at Natural Dairy, let alone throw the book at it.

So this is what has happened with the first lot of Crafar Farms sold to a Chinese buyer. Why should we put any faith in the “strict conditions”, etc, that the Government trumpets in connection with this latest sale of Crafar Farms to another Chinese corporate buyer? Because, if anything goes wrong, neither the Government nor the OIO will do anything about it. Let’s hear from the Prime Minister, and the other Ministers responsible for foreign investment policy, what the Government intends to do about this and how soon.

The OIO’s letter to CAFCA refers to “complex matters”. There’s nothing terribly complex about this. Natural Dairy bought four farms that they didn’t have permission to buy. Cancel those sales and strip Natural Dairy of their ownership. End of story.

... there is a strong objection to the TPPA.

The NZ Not For Sale Campaign recently heard from Occupy TEXAS, which has released an official Call to Action against the TPPA,  in solidarity with other Texan organisations which are also opposing it.

The Call to Action includes links to facts sheets and other useful documents on the TPPA and its likely negative impacts on the health sector, the environment, workers rights, etc., plus it has a page of excellent ideas for action that individuals and small groups can take, which are as relevant in NZ as they are in Texas.

click to view and/download

 Checkout 

Occupy Texas Home

Occupy Texas Facebook

Occupy Texas Tumblr

Bills presentation can be viewed and/or downloaded here

Professor Kelsey has spoken at these events in Auckland, Santiago, Ho Chi Minh City, Melbourne and Chicago on issues of investment, financial services, development issues, state-owned enterprises, and human rights impact assessments.

Corporate lobby has the money to buy time with delegations

The US has announced that stakeholders can register and be allocated a ‘table’, but not make any presentations, at the next round of negotiations in Dallas from 8 to 18 May.

The stakeholder presentations have offered detailed expert analyses of the legal issues and implications of TPPA proposals that many countries’ negotiators do not have time, resources or knowledge to develop themselves.

They also provide important support for the positions that countries are taking in the negotiations, especially against the very aggressive demands from the US.

Even though it is voluntary for the negotiators to attend, they often ask for follow-up discussions on the issues and how they might protect their interests – without, of course, the advisers having access to the draft text.

“Clearly, even this limited engagement is being too effective for the US’ liking”, said

Clearly, even this limited engagement is being too effective for the US’ liking

Professor Kelsey. “We know the US has been annoyed that other countries’ negotiators want to attend these events and has actively dissuaded some from doing so. Now the future rounds of negotiations are being held in the US, it has been able to cancel the programme altogether.”

The corporate lobby has the money to buy time with delegations, if they are not given formal access during the negotiations. Critics of the US position on intellectual property and investment have previously hosted breakfasts and lunches, but this is expensive and the last time it was tried in the US the hotel cancelled the booking, presumably at the US government’s behest.

Without this fig-leaf of transparency ... the US will have even greater ability to bully

Professor Kelsey has asked the lead New Zealand negotiator, David Walker, whether New Zealand has agreed or objected to this latest step to intensify the already obsessive secrecy surrounding the negotiations, or will be prepared to raise the issue, but has yet to hear.

“Without this fig-leaf of transparency and our ability to access and assist the negotiators, the US will have even greater ability to bully them into a deal that can’t be unwound once it sees the light of day.”

“It is time to insist that New Zealand’s government pulls the plug on this travesty that has no place in a 21st century democracy”, urged Professor Kelsey.

A deal made behind closed doors, which would lock governments into the failed neoliberal model for the next century, is untenable in a democracy, but those concerns seemed to fall on deaf ears

The nine parties to the Trans-Pacific Partnership agreement (TPPA) negotiations have made a dramatic and unexpected u-turn, agreeing to lift the veil of secrecy on their draft texts and background documents.

Critics of the obsessive secrecy that surrounds the negotiations hailed the decision as a triumph for democracy.

Trade Minister Tim Groser was on record as saying: “New Zealand will never release texts without the agreement of our negotiating partners – end of story”.

“We had almost given up on the trade ministers and negotiators remembering they are accountable to their citizens, not to the corporate lobbyists who are driving the TPPA,” said Dr Jane Kelsey, a staunch critic of the agreement.

“A deal made behind closed doors, which would lock governments into the failed neoliberal model for the next century, is untenable in a democracy, but those concerns seemed to fall on deaf ears”.

“They ignored petitions from organisations representing millions of people across most of the nine countries and blocked hearings within parliamentary select committees.”

“Two weeks ago the Democratic Party Chair of the US Senate Trade Subcommittee Ron Wyden tabled an amendment in US Congress seeking more transparency in the TPPA negotiations, requiring public disclosure of the US negotiating positions and proposals”.

Negotiators: “embracing a new free trade doctrine known as the ‘Dracula principle’"

“Instead, the negotiations seemed to be retreating further into the trenches. We heard that all future rounds would be held in the US. That means the US, as host, controls the agenda. A raft of ‘inter-sessional’ talks will exclude any troublesome ‘stakeholders’,” said Dr Kelsey.

Despite massive internal disagreement, the US says it wants the deal tied up in July.

Hence, the surprise at today’s announcement that the negotiators have embraced a new free trade doctrine known as the ‘Dracula principle’ – pull back the curtains and flood the draft text with the disinfectant of daylight, allowing the proposed Trans-Pacific Partnership Agreement, like Dracula, to wither and die.

Yeah, right!

(yep it is April 1)