Bryan Gould: If TPP signed, don't say I didn't warn you

US Secretary of State John Kerry (left) and US Trade Representative Michael Froman at the Trans Pacific Partnership meeting in Bali. Photo / AP

Giving rights to overseas companies that can never be changed regardless of NZ's own needs is a big mistake.

We are constantly assured that the great advantages of extending free trade, particularly with the Americans, will more than offset any minor changes we might have to make as the price of such an agreement. The record of the Trans Pacific Partnership Agreement negotiations shows, however, that - exactly as was to be expected - the Americans see the supposed advantages of free trade entirely in terms of advancing the interests of major American corporations.

The inevitable result? Since co-operative arrangements for handling both exports and imports are regarded by "free trade" zealots as an infringement of the "free" market, what is peddled as a simple free trade deal could require major concessions in the way we organise our exports - through Fonterra or Zespri - and in the freedom we have to negotiate, by using our collective purchasing power through agencies like Pharmac, the best possible prices for imports such as pharmaceuticals.

The leaked record, focusing as it does on intellectual property issues like patents and copyright, pays little attention, however, to one of the main threats from the TPP - the requirement that overseas corporations should be able to sue a future New Zealand government in a specially constituted tribunal if their trading opportunities were to be reduced by future legislation.

Foreign businesses would, as a consequence, have much greater legal rights than any New Zealand enterprise would enjoy, and those legal rights could not be altered, even by a future government elected with a mandate to do so.

These fears are in no sense fanciful. Other countries which have agreed to such obligations in the past are now regretting having done so. South Africa, for example, is now insisting that the deal they made with the US should be re-negotiated in the light of their damaging experience of what they mean in practice.

Ecuador and Venezuela have already refused to extend trade agreements with the US containing such provisions and India has rejected an investment agreement with the US unlesS the dispute-resolution mechanism is changed.

Countries like these understand that granting permanent rights of this kind to American corporations would mean, for example, giving up the ability to protect the environment from the activities of mining and petroleum companies, or (as the Australian Government has discovered) being sued as a result of trying to restrain tobacco companies from selling a product that is known to cause death and disease.

Our Government would have to accept many other restrictions, as the Argentine Government discovered when it imposed a freeze on energy and water prices, in an attempt to help hard-pressed consumers, and had to pay more than a billion dollars in compensation to international utility companies. Even the judges who sit on these specially constituted tribunals are amazed at the power they exercise; as one has commented, these provisions mean that "three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from Parliament".

Concerns like these have now extended to Europe and to the UK in particular. The Americans are negotiating a Transatlantic Trade and Investment Partnership with European countries which will contain the same investor-state dispute settlement provisions as are intended for the TPP. It seems likely that those countries will provide stiffer resistance to these provisions than our own Government.

What justifies such pessimism, you may ask? The first warning sign is that the negotiations are being conducted in secret and that, by the time the deal is done and announced, it will be too late. The Government's willingness to defy public opinion over asset sales is convincing evidence of the scant regard it pays to what our citizens want when it is a question of pleasing business interests.

The risk is clear - the TPP, while presented as a free-trade arrangement, is really a very different beast. You have been warned!