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Brief Counsel

Connected Asia Pacific - December issue

18 December 2009

Welcome to the final issue of Connected Asia Pacific for 2009. This Brief Counsel focuses on developments in international trade, investment and arbitration in the Asia Pacific region. It is intended to assist exporters, importers and investors from or to New Zealand make the most of the rules which increasingly regulate their cross-border activities.

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

Trans-Tasman integration: court proceedings and enforcement

The New Zealand and Australian legal systems came a significant step closer last month, with both Parliaments tabling legislation to implement the 2008 Agreement on Trans-Tasman Court Proceedings and Regulatory Enforcement (the Agreement).  The majority of these reforms make good sense and the harmonisation of civil proceedings and remedies should increase confidence in litigation within the region.  However, the proposed regime will also allow cross-border enforcement of certain regulatory sanctions, which – as is widely recognised – raises more difficult questions.

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In brief

New Zealand's free trade agreement progress

New Zealand has ended the year with a swathe of good news on the free trade agreement (FTA) front. 

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WTO Ministerial Meeting in Geneva

In contrast, the Seventh WTO Ministerial Conference, held in Geneva from 30 November to 2 December 2009, did not achieve much.  Expectations were not high and the results did not defy those expectations.  The Conference was not a formal part of the stalled Doha Development Agenda, but it was an opportunity for political will to be shown.  Instead, the outcome was a resolution for political will to be shown sometime in 2010, which is the new goal for the conclusion of the Doha Round, which began in November 2001.

New Zealanders will remember the Conference mostly for the use made by the US delegation, in the context of agriculture discussions, of Turners & Growers' July 2009 New Zealand High Court challenge, which alleges that Zespri is acting contrary to the Commerce Act 1986 and the Kiwifruit Export Regulations 1999 (which are themselves alleged to be in breach of the Commerce Act). 

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Carbon border taxes and Groser's "peace clause"

Turning to the Copenhagen negotiations, New Zealand Trade and Climate Change Negotiations Minister Tim Groser has made waves by expanding, in a speech to Chatham House in London on 8 December 2009, upon his previous suggestion in May 2009 that a new climate change deal (if there is one) or the Doha Round (if it is completed) should insert a "peace clause", similar to that which existed in Article 13 of the WTO Agriculture Agreement.  New Zealand has now informally proposed a "5-7 year moratorium" on challenging climate change policy tools under WTO rules.  This moratorium would not apply to "unilateral border tax adjustments", which Groser suggests would be like anti-dumping or countervailing duties "on steroids".

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Australian International Arbitration Amendment Bill

The Rudd Government tabled on 25 November 2009 the International Arbitration Amendment Bill 2009 in an attempt to update and transform Australia's arbitration law into a more modern form. 

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EU removes dairy export subsidies

Although the New Zealand media highlighted the institution of EU's dairy export subsidies in January 2009 (particularly after the US followed suit in June 2009), it seemed less interested in their withdrawal on 19 November 2009.  The US's dairy export subsidy scheme remains in force.