Centre for Environmental, Resources and Energy Law (CEREL)

Dr Alberto Alvarez-Jimenez

Investment Protection & the Environment in Chapter 9 of the TPPA

National Treatment. Article 9.4 Each Party shall accord to investors of another Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.

National Treatment. Article 9.4 Footnote 14. For greater certainty, whether treatment is accorded in “like circumstances” under Article 9.4 (National Treatment) … depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.

Minimum Standard of Treatment. Article 9.6 Each Party shall accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security.

Minimum Standard of Treatment. Article 9.6 4. For greater certainty, the mere fact that a Party takes or fails to take an action that may be inconsistent with an investor’s expectations does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result.

Minimum Standard of Treatment. Article 9.6 5. For greater certainty, the mere fact that a subsidy or grant has not been issued, renewed or maintained, or has been modified or reduced, by a Party, does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result.

Expropriation and Compensation. Article 9.8 No Party shall expropriate or nationalise a covered investment either directly or indirectly through measures equivalent to expropriation or nationalisation (expropriation), except: (b) in a non-discriminatory manner; (c) on payment of prompt, adequate and effective compensation.

Annex 9 – B. Expropriation 3(a)(i) the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;

Annex 9 –B. Expropriation (b) Non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations, except in rare circumstances.

Investment and Environmental, Health and other Regulatory Objectives Investment and Environmental, Health and other Regulatory Objectives. Article 9.16 Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives.

Resource Management Act 1991