Trade Agreements

  • Susy Frankel, Meredith Kolsky Lewis, Chris Nixon and John Yeabsley “The Web of Trade Agreements and Alliances, and Impacts on Regulatory Autonomy” in Susy Frankel (ed) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). This research proposes that New Zealand needs to ‘up its game’ as far as trade policy negotiations are concerned. With the increased complexities that a global world has placed on domestic policy settings, New Zealand needs to develop a range of strategies and tactics to ensure the best possible outcomes when partaking in trade deals. The paper navigates the challenge of regulatory autonomy and new trade issues within this dynamic trade environment, via patent law, the ASEAN + 6 and the Trans-Tasman Partnership negotiations. It explores what approaches might be appropriate to ensure that any costs New Zealanders may have to ‘swallow’ on these complex trade deals, are subsequently offset by potential benefits.

  • See also Susy Frankel and Meredith Kolsky Lewis “Trade Agreements and Regulatory Autonomy: The Effect on National Interests” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).

Foreign direct investment

  • Daniel Kalderimis “Regulating Foreign Direct Investment in New Zealand – Further Analysis” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). This paper highlights the difficulties that surround Foreign Direct Investment (FDI) in New Zealand as well as why New Zealand does not have a coherent and integrated FDI policy. The paper proposes that New Zealand should have a more global focus and capitalise on the connections made through FDI to grow high-value export and outward direct investment (ODI) businesses, particularly in Asia. This would allow New Zealand to take advantage of spill-over benefits that are associated with FDI such as the internationalisation of businesses and their ability to move up the value chain. An example of the problems that can arise affecting the FDI flow into New Zealand are highlighted by way of the Shanghai Pengxin purchase of Crafar Farms including the ‘political tensions’ that arise from New Zealanders strong attachment to the concept of land ownership and the ‘tug-of-war’ that this creates between politics and policies.

  • See also Daniel Kalderimis “Regulating Foreign Investment in New Zealand” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).

  • Richard P Boast and Susy Frankel “Defining the Ambit of Regulatory Takings” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). Internationally, one of the most contested aspects of regulatory takings is where a private investor can take direct legal action against governments for economic loss.[33] The extent of the ability to sue might depend on what property rights can be compensated at domestic law, but a foreign investor may have other rights. What those other rights are depends on whether the country has entered any investment agreements and what rights investors have under any agreements; in particular, whether those agreements include any rights in addition to remedies at domestic law, such as investor-state arbitration. Investor-state arbitration allows the investor to take a state to arbitration to recover for expropriation or other types of so-called taking of assets, as defined under the relevant investment agreement. Action before domestic courts would be limited to any property rights found in the relevant domestic law. Thus, investor-state arbitration potentially gives greater options and consequently more expansive property rights to foreign investors. While better rights for foreign investors are not necessarily unusual, it seems that in New Zealand at least, there has not been a thorough discussion about why that should be so. Rather, it seems this is a policy that has arisen by default.

Trans-Tasman trade

  • Susy Frankel, Chris Nixon, Megan Richardson and John Yeabsley “The Challenges of Trans-Tasman Intellectual Property Coordination” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). This paper considers three areas of intellectual property law; a single trade mark regime, shared patent examination and parallel importing regulations in relation to the regulatory approaches of harmonisation and coordination in a trans-Tasman context. The purpose of the paper is to analyse which approach, or combination of approaches, are most likely to benefit New Zealanders and the subsequent regulation they may be subject to. The paper clearly outlines the advantages and disadvantages of harmonisation and coordination for New Zealand in each area and uses a decision criteria and a set of questions to measure which approach is more appropriate. A counterfactual base case is then used to compare against the decision making criteria, which in all cases is the ‘current regulatory setting’. This process, once worked through in the paper, results in an enlightening discussion on regulation in these areas and recommends harmonisation for a single trade mark regime and parallel importing regulations and coordination for shared patent examination.

  • See also Susy Frankel and Megan Richardson “Trans-Tasman Intellectual Property Coordination” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).

  • See also Chris Nixon and John Yeabsley in “Australia New Zealand Therapeutic Products Authority: Lessons from the Deep End of Trans-Tasman Integration” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).