1. Neither Party may expropriate or nationalise a covered investment either directly or indirectly through measures equivalent to expropriation or nationalisation (expropriation) (7), except:
(a) for a public purpose;
(b) in a non-discriminatory manner;
(c) on payment of prompt, adequate, and effective compensation in accordance with Paragraphs 2 to 4; and
(d) in accordance with due process of law.
2. Compensation shall:
(a) be paid without delay;
(b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place;
(c) not reflect any change in value occurring because the intended expropriation had become known earlier; and
(d) be fully realisable and freely transferable.
3. The compensation shall be payable either in the currency in which the investment was originally made or, if requested by the investor, in any other freely useable currency. The compensation shall include interest, at a commercially reasonable rate for that currency, from the date the measures in question were taken to the date of payment and shall be freely transferable between the territories of the Parties. If an investor requests payment in a freely usable currency, the compensation referred to in Paragraph 1(c), including any accrued interest, shall be converted into the currency of payment at the market rate of exchange prevailing on the date of payment.
4. This Article does not apply to the issuance of compulsory licences granted in relation to intellectual property rights in accordance with the TRIPS Agreement.
Article 15. Transparency
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application with respect to any matter covered by this Protocol are published promptly or otherwise made available in such a manner as to enable interested persons of the other Party to become acquainted with them. Each Party shall also publish international agreements pertaining to investment to which it is a party.
2. To the maximum extent possible, each Party shall:
(a) publish in advance any measure referred to in Paragraph 1 that it proposes to adopt; and
(b) provide interested persons of the other Party with an opportunity to comment on such proposed measures.
3. With a view to administering its laws, regulations, procedures, and administrative rulings of general application with respect to any matter covered by this Protocol in a consistent, impartial, and reasonable manner, each Party shall ensure that its administrative agencies, in applying such measures to particular investors of the other Party or covered investments in specific cases through adjudication, rulemaking, licensing, determination, and approval processes:
(a) provide, wherever possible, persons of the other Party that are directly affected by an agencys processes reasonable notice, in accordance with domestic procedures, when a process is initiated, including a description of the nature of the relevant process, a statement of the legal authority under which the process is initiated, and a general description of any issues in controversy;
(b) afford such persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the process, and the public interest permit; and
(c) follow procedures that are in accordance with its law.
4. Each Party shall maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Protocol. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
5. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceedings are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
6. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decision shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.
7. Each Party shall designate a contact point or points to facilitate communications between the Parties on any matter covered by this Protocol.
Article 16. Special Formalities and Disclosure of Information
1. Nothing in Article 5 (National Treatment) shall be construed to prevent either Party from adopting or maintaining a measure that prescribes special formalities in connection with covered investments, such as residency requirements for registration or similar purposes or a requirement that covered investments be legally constituted under the laws or regulations of the Party, provided that such formalities do not materially impair the protections afforded by a Party to investors of the other Party and covered investments pursuant to this Protocol.
2. Notwithstanding Articles 5 (National Treatment) and 6 (Most Favoured Nation Treatment), a Party may require an investor of the other Party, or a covered investment, to provide information concerning that investment solely for informational or statistical purposes. The Party shall protect such information that is confidential from any disclosure that would prejudice the competitive position of the investor or the covered investment. Nothing in this Paragraph shall be construed to prevent either Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its domestic law.
Article 17. Subrogation
1. If a Party or an agency of a Party makes a payment to an investor of that Party under a guarantee, a contract of insurance, or other form of indemnity against non-commercial risks it has granted in respect of an investment of an investor of that Party, the other Party shall recognise the subrogation or transfer of any right or title in respect of such investment. The subrogated or transferred right or claim shall not be greater than the original right or claim of the investor.
2. Where a Party or an agency of a Party has made a payment to an investor of that Party and has taken over rights and claims of the investor, that investor shall not, unless authorised to act on behalf of the Party or the agency of the Party making the payment, pursue those rights and claims against the other Party.
Article 18. Denial of Benefits
A Party may deny the benefits of this Protocol to an investor of the other Party that is an enterprise of such other Party and to investments of that investor if the enterprise has no substantive business operations in the territory of the other Party and persons of a non-Party or of the denying Party own or control the enterprise.
Article 19. Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between covered investments or investors of the other Party and other investments or investors, where like conditions prevail, or a disguised restriction on investment, nothing in Articles 5 (National Treatment), 6 (Most Favoured Nation Treatment), 7 (Performance Requirements), or 8 (Senior Management and Boards of Directors) shall preclude the adoption or enforcement by either Party of measures:
(a) necessary to protect public morals or to maintain public order;
(b) necessary to protect human, animal or plant life or health (8);
(c) necessary to protect national works or specific sites of artistic, historic or archaeological value; or
(d) relating to the conservation of living or non-living exhaustible natural resources.
Article 20. Security Exceptions
Nothing in this Protocol shall be construed:
(a) to require either Party to furnish or allow access to any information the disclosure of which it considers to be contrary to its essential security interests; or
(b) to prevent either Party from taking any actions which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable and fusionable materials or the materials from which they are derived;
(ii) taken in time of war or other emergency in international relations;
(iii) relating to the production or supply of arms and ammunition; or
(c) to prevent either Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 21. Taxation Measures
1. Except as provided in this Article, nothing in this Protocol shall apply to taxation measures.
2. This Protocol shall only grant rights or impose obligations with respect to taxation measures:
(a) where corresponding rights or obligations are also granted or imposed under the WTO Agreement;
(b) under Article 7 (Performance Requirements); or
(c) under Article 14 (Expropriation).
3. Nothing in this Protocol shall affect the rights and obligations of the Parties under any tax convention relating to the avoidance of double taxation in force between the Parties.
4. In the event of any inconsistency relating to a taxation measure between this Protocol and a tax convention relating to the avoidance of double taxation in force between the Parties, the latter shall prevail to the extent of the inconsistency. Any consultations between the Parties pursuant to Article 25 (Consultations) about whether an inconsistency relates to a taxation measure, or whether any other matter arising under this Protocol relates to a taxation measure, shall include representatives of the tax administration of each Party.
5. Nothing in this Protocol shall be regarded as obliging either Party to extend to the other Party the benefit of any treatment, preference or privilege arising from any existing or future agreement on the avoidance of double taxation or from the provisions on the avoidance of double taxation in any other international agreement or arrangement by which the Party is bound.
Article 22. Prudential Measures (9)
Notwithstanding any other provisions of this Protocol, a Party shall not be prevented from taking measures affecting the supply of financial services for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Protocol, they shall not be used as a means of avoiding the Party's commitments or obligations under this Protocol.
Article 23. Treaty of Waitangi
1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Party or as a disguised restriction on investment, nothing in this Protocol shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Protocol including in fulfilment of its obligations under the Treaty of Waitangi.
2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be the subject of consultations pursuant to Article 25 (Consultations).
Article 24. Investment and Environment
Nothing in this Protocol shall be construed to prevent either Party from adopting, maintaining, or enforcing any measure otherwise consistent with this Protocol that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns.
Article 25. Consultations
If a Party considers that:
(a) an obligation under this Protocol has not been, is not being, or may not be fulfilled; or
(b) the achievement of any objective of this Protocol is being or may be frustrated,
It may request consultations with the other Party. Following such a request the Parties shall promptly enter into consultations with a view to seeking an early, equitable, and mutually satisfactory solution.
Article 26. Review
The Parties agree to meet in or shortly after the first year of entry into force of this Protocol, and regularly thereafter, to review the operation of this Protocol.
Article 27. Status of Annexes and Letters
The Annexes to this Protocol, the Exchange of Letters Concerning Clarification of Australian Non-Conforming Measures at Regional Level of Government, the Exchange of Letters Concerning the New Zealand MFN Reservation, and the Exchange of Letters Concerning New Zealands Reservation with respect to Water are an integral part of this Protocol.
1. The Parties may agree to the association of any other State with this Protocol.
2. The terms of any such association shall be negotiated jointly between the Parties and the other State.
This Protocol shall enter into force 30 days, or such other period as the Parties may agree, after the Parties exchange written notification that necessary domestic procedures have been completed.
Article 29. Entry Into Force
Signed at Wellington, in duplicate, this two thousand and eleven day of February
Conclusion
For New Zealand:
Rt Hon John Key Prime Minister
For Australia:
The Hon Julia Gillard Prime Minister