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Brief Counsel

Connected Asia Pacific - August issue

16 August 2009

Connected Asia Pacific is intended to assist exporters, importers and investors from or to New Zealand to make the most of the rules which increasingly regulate their cross-border activities.  We hope you find it helpful and would appreciate any feedback which would help us to target it toward your needs and interests. 

If you are interested in obtaining further advice – or in simply finding out if you might benefit from an informal discussion – please contact Principal Daniel Kalderimis.

FEATURE - Changes to Australia’s and New Zealand’s overseas investment regimes

In recent days, both Australia and New Zealand have announced changes to their screening criteria for the admission of foreign investment.  In Australia’s case, the backdrop is the awkward political situation which has developed following the late collapse of the Chinalco/Rio Tinto deal in June 2009.  In New Zealand’s case, the backdrop is the stated objective of the present Government to review and simplify New Zealand’s foreign investment regime.

Chapman Tripp partner Tim Williams is a member of the Technical Reference Group assisting the review of the Overseas Investment Act 2005 (the Act), and we have recently written a Brief Counsel proposing technical changes to the Act

This article takes a somewhat broader approach.  It looks at the recent developments, on both sides of the Tasman, in view of evolving international investment obligations and offers some thoughts as to some key legal and political issues to be taken into account.

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RECENT DEVELOPMENTS IN BRIEF

China loses third WTO case

China’s WTO honeymoon, which began with its accession in 2001, is now over.  For the first six years, China was not the object of any adverse WTO decisions.  However, with the release of a new Panel report on 12 August 2009, China has now been found in breach of WTO rules for the third time since 2008.  All three cases have been brought by the United States, either alone or with other member states.   

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Thailand loses investment treaty case invoking concept of legitimate expectations

Sir Ian Barker QC, the former New Zealand judge, chaired an international arbitral tribunal which on 1 July 2009 issued an award in an investment treaty dispute between a German investor and Thailand.  The investor was a minority shareholder in a consortium hired to build and operate a toll highway. 

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Singapore and Hong Kong update arbitration laws to reflect Model Law

Hong Kong and Singapore are racing each other to amend their respective arbitration laws to ensure that they remain current and user-friendly. 

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New Zealand Capital Markets Taskforce Interim Report released

On 31 July 2009, the Capital Market Development Taskforce issued an Interim Report, which was welcomed by the Government.  The Report is relatively detailed for an interim assessment and explores some of the reasons for New Zealand’s persistently thin capital markets.

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Submissions closed in NZ-Australia Apples dispute

As of the end of July 2009, the final hearing and closing submissions were completed in the NZ-Australia Apples dispute before a WTO Panel.  A decision is expected early next year. 

New Zealand/Australia CER meeting on 20 August 2009

New Zealand Prime Minister John Key is meeting with Australian Prime Minister Kevin Rudd on 20 August 2009, following the 2009 CER Ministerial Forum held in Wellington on 9 August.  Several CER policy announcements are expected to be made.  These will relate to a range of closer integration matters.  One issue that is likely to be addressed is cross-border insolvency issues.  NZ and Australia are already parties to the UNCITRAL Model Law on Cross-Border Insolvency, but both governments have identified scope for closer integration.