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The Trans-Pacific Partnership Agreement:

The New Age of Foreign Corporations - An Analysis of the TPPA's Investment Chapter

Online Publication Date: 21 January 2016

TPPA: The New Age of Foreign Corporations

by Gurdial Singh Nijar

Professor, Faculty of Law, University of Malaya

The TPPA’s finalised chapter on investment and ISDS is out.[1] Sadly, it is not looking good for the country. It introduces a whole new system that gives extraordinary protection to the investments and profits of foreign corporations. It then empowers these corporations to sue governments if these rights are interfered with in any way – through an entire legal framework that is “fundamentally flawed” - known as investor-state-dispute settlement or ISDS, for short. The bounty of extensive rights are not (and, largely, have never been) accorded to citizens of the parties to the TPPA.

Malaysia’s Ministry of International Trade and Industry (MITI), which led the negotiations, has put on a brave face. In its web page it writes that the ISDS provision is not new. It appears, it says, in Malaysia’s Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs) with several other countries.

Two crucial aspects MITI does not disclose. First, the scope of the protected investments in respect of which an ISDS case can be brought is far wider than in any other of Malaysia’s previous trade treaties. Secondly, for the first time the US is a party. Its big corporations are notorious for pursuing all sorts of claims against other countries for millions if not billions. Let me elaborate.

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