Article 9.6bis: Treatment in Case of Armed Conflict or Civil Strife
1. Notwithstanding Article 9.11.6(b) (Non-Conforming Measures), each Party shall accord to investors of another Party and to covered investments non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife.
I was a bit surprised to find this one. Presumably this refers to cases where the state is not bound to provide compensation, but does so discretionarily? Why would countries sign up to a policy in which they have to treat the losses of citizens/residents the same as the losses of foreigners? And why only for cases of “armed conflict or civil strife” – but not, say, earthquakes, bank failures, or other vicissitudes of life? London was badly bombed in the blitz in 1940. Is this seriously suggesting that the British government, if it offered any compensation to any of the victims, had to treat, say, the owners of Swiss banks or factories the same as the owners of British banks or factories. Why would they want to pre-commit to that, in respect of ex gratia measures?
There might be plenty of occasions when a country might want to treat these two groups of people equally, but why should it sign up to committing in advance to such equality of treatment?
Public policy should be made primarily in the interests of the citizens (and perhaps residents) of the country concerned. In all manner of areas, we treat residents different from non-residents (eg access to public schools and the public health system, let alone voting). In some cases, we even treat citizens differently from non-citizens: both might go prison for a crime, but the non-citizen can be deported too. It isn’t always obvious where the lines should be drawn, but draw them we do. And sometimes we revise them in light of specific circumstances. But why pre-commit to treat any compensation for this particular class of losses equally between New Zealanders and others?
PS. On the off chance that “non-discriminatory treatment” only refers to how different countries’ overseas investors are treated, it still seems an odd and inappropriate thing to pre-commit too. In any “armed conflict”, some other countries will have been allies, other perhaps very friendly, and others neutral or perhaps mildly hostile. Why would we pre-commit to treating investors from each of those countries equally, in offering discretionary compensation for any losses resulting from armed conflict (or civil strife)?