CPTPP’s Investment Chapter: Progressive or a mere reiteration?

Abstract

In March 2018, New Zealand signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). This moment came after a series of significant events in New Zealand and international politics. The CPTPP rose from the collapse of the TPP and the similarity of the agreements mean the protests and arguments that encompassed TPP negotiations can be applied to the CPTPP. The investment chapter and Investor-State Dispute Settlement (ISDS) clauses were at the heart of the protests with arguments that the agreement would undermine the right of the sovereign to regulate in favour of foreign investors. Coupled with a new Government that had previously criticised the use of ISDS, it appeared New Zealand would shift away from the use of ISDS to ensure sufficient policy space. However, the agreement was signed without significant changes to the investment chapter, or the removal of ISDS. Members negotiated the investment chapter during the period of heightened public scrutiny and thus, the chapter contains provisions to respond to the criticisms. The agreement is not perfect, however, and New Zealand should not blindly follow the CPTPP’s investment chapter when negotiating future treaties.