Lawyer talks up TPP benefits

In an issues paper compiled by partner Graham Taylor, senior associate Samy Mansour and lawyer Mary Konstantopoulos, the trio said the TPP presents an opportunity to diversify the Australian economy, particularly in the energy and resources sectors.The TPP was recently agreed to by trade ministers from Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam, which together represent around 40% of the global GDP.China, while notable by its absence, has a separate free trade agreement with Australia.The treaty now needs to be ratified by the nations’ governments, after which time the text of the agreement will be made public.Australia’s exports of resources and energy products to TPP countries were worth almost $47 billion in 2014, representing 30% of Australia’s total global exports.Clayton Utz said in that in 2014 Australia’s top three exports to TPP countries were LNG, coal and iron ores and concentrates, valued at $37.9 billion, while imports came in at $21.4 billion for refined and crude petroleum.The TPP aims to remove barriers to Australian exports of goods, services and investment and eliminate 98% of all tariffs including for manufactured goods, resources and energy, the firm said.Coupled with the lock-in of duty and quota free access that Australia already has in several TPP markets for coal, iron ore and liquefied natural gas, key opportunities for Australian exports will include butanes, propane and liquefied natural gas to Vietnam, a market worth $9 billion in 2014, eliminating tariffs within seven years of the TPP coming into force.A 20% tariff on imports of refined petroleum to Vietnam will also be removed. The Asia Pacific gets around 40% of the exploration spend, and there are new opportunities in Mexico, which has opened up its energy sector for the first time in decades, and is seeking up to $20 billion of additional foreign investment per year. “For the first time, Australian companies will be able to bid to participate in the exploration, production, processing and distribution of oil, gas and geothermal resources in Mexico,” the trio wrote.While Mexico’s first acreage auctions have not been well attended due to depressed oil prices leading to muted exploration budgets, opportunities in Mexican territory, both onshore and in the prolific Gulf of Mexico, are eventually expected to be chased by explorers. A number of mineral explorers, including Azure Minerals and Consolidated Zinc are already established in Mexico and have enjoyed recent drilling success with their respective silver exploration projects.The TPP will also impose new rules on state-owned enterprises such as Petronas and Petrovietnam that should help Australian providers compete fairly for contracts, Clayton Utz said.“Brunei Darussalam, Mexico and Vietnam have committed to guarantee access for Australian METS [Mining Equipment, Technologies and Services] and oil field goods and services providers,” they wrote. “In Vietnam, expanding offshore exploration and production has created a steadily growing market for oil and gas equipment which provides opportunities for Australian mining equipment and services organisations; and Australian suppliers will now have the chance to bid for government procurement opportunities with entities in Peru’s government-owned electricity and hydro power sectors.”Over half of Australia’s $90 billion METS sector export their goods and services. Exports now exceed $27 billion, about one third of the sector’s revenue. A number of countries have also extended higher preferential investment screening thresholds to Australian investors. For example, Australian investments into Canada of below $C1.5 billion will now be exempt from investment screening processes, while in the other direction the TPP will increase the screening threshold at which private foreign investments in the mining and energy sectors are considered by the Foreign Investment Review Board from $252 million to $1.094 million for all TPP counties in most industries.However, the TPP is not guaranteed to pass, with both Republicans and Democrats raising concerns about the treaty.Australian prime minister Malcolm Turnbull gushed that the TPP is “… a gigantic foundation stone for our future prosperity”, while the opposition has also made supportive noises.The most contentious part of the TPP is the investor-state dispute settlement (ISDS) process that has been has been included in investment treaties and trade agreements over several decades.They over-rule the authority of sovereign courts in favour of an international dispute tribunal.The ISDS has been used by water and waste management giant Veolia to sue the Egyptian government for daring to lift the minimum wage, Quebec in Canada is being sued for a ban on fraccing, Germany is being sued for its decision to phase out nuclear power, and Costa Rica its environmental preservation laws.US corporations are the biggest litigants, having brought some 127 cases thus far against sovereign government decisions which they claim have damaged their financial interests. Taxpayers have the pleasure of footing the legal defence bills. US companies usually win the disputes in the one-way system that allows corporations to sue governments, but not vice versa.The system is also ad hoc, relying on panels of three appointed arbitrators.

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