The Select Committee and the arbitrators

I presented my submission on the TPPA’s National Interest Analysis to the Ministry of Foreign Affairs and Trade Select Committee and hung around afterwards to see who was next up. A few speakers later the Arbitrators and Mediators Institute of New Zealand made their presentation. Unlike the private individuals who had 10 minutes apiece or even Federated Farmers who were offered 15 this group of crisp professionals took up almost 40 minutes of the Select Committee’s time. They gave their evidence in the kind of shiny shoed, eager to please way I had to decades ago when I worked in computer industry sales. It seemed to me that with a moment of inattention from the rest of us they’d have been sidling up the table, shaking hands and exchanging business cards.

Arbitration is good they said. Much better than the courts.They described how each party chose their advocate and then selected a chair. Their submission said “the origins of arbitration are lost in the mists of time”. They were very knowledgeable about arbitration. They know Kiwi lawyers resident in London who are part of the International Circuit of high profile trade agreement arbitrators. They know about how to manage conflicts of interest. They implied that people who don’t understand the TPPA and its benefits are perhaps a tiny bit stupid.

Then came the questions. Who pays for the arbitration under the TPP – the advocates and the judge? How are the costs managed? It was Kennedy Graham I think. They didn’t know. Neither did any of the members of the Select Committee. Neither were any of the officials present prepared to hazard a guess. There was a bit of a polite Mexican stand off. “Can you clarify this for us?” from the MPS. “It’ll be clear in the text” from the other side. “We’d like to know” said the MPS. Bingo. The arbitrators got an invite to stay in touch to provide information that should have been fundamental to both sides. Funny! One thing was clarified. Investor State Dispute Tribunal(ISDS) are really open and public. Unless there are commercial sensitivities of course or security concerns. Or in the mandatory pre-ISDS phase that the arbitrators, if they knew about, did not seek to mention.