Clive Palmer versus (Western) Australia. He could survive a High Court loss if his company is found to be "foreign"
- Written by Luke Nottage, Professor, Sydney Law School, University of Sydney
We may not like Clive Palmer as a person, or his business activities, or his politics, but from a legal perspective that should not matter.
All of us, rich or poor, should have equal rights under the rule of law, including access to independent review mechanisms.
So we should be concerned in principle about the oddly-named Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Amendment Act.
It was hastily passed by the Western Australian parliament on August 13 in order to legislate away Palmer’s rights under a contract with Western Australia regarding the Balmoral South mining project.
Former High Court judge Michael McHugh upheld those rights in 2014 and 2019 arbitration awards.
The Act declares the contract to have no effect (s9) and declares both arbitration awards to have no effect (s7).
It makes the contract’s arbitration clause “not valid” (s10).
It says Western Australia cannot be sued and has no liability in any project-related dispute (s11).
- ^ Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Amendment Act (www.parliament.wa.gov.au)
- ^ Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Amendment Act 2020 (www.parliament.wa.gov.au)
- ^ The WA government legislated itself a win in its dispute with Clive Palmer — and put itself above the law (theconversation.com)
- ^ under Australian law (www.abc.net.au)
- ^ international law (www.afr.com)
- ^ for this purpose (thewest.com.au)
- ^ Free Trade Agreement with Singapore (www.dfat.gov.au)
- ^ investor-state dispute settlement (theconversation.com)
- ^ Comprehensive and Progressive Agreement for Trans-Pacific Partnership (www.dfat.gov.au)
- ^ ASEAN+ treaty (www.dfat.gov.au)
- ^ acts of expropriation (papers.ssrn.com)
- ^ similar provisions (papers.ssrn.com)
- ^ US$4.16 billion (www.italaw.com)
- ^ abuse of process (www.italaw.com)
- ^ Singapore-Australia Free Trade Agreement (www.dfat.gov.au)
- ^ foreign direct investment (papers.ssrn.com)
- ^ found to have engaged in (papers.ssrn.com)
- ^ costs and delays (papers.ssrn.com)
- ^ Hong Kong Australia treaty (papers.ssrn.com)
- ^ just committed (www.dfat.gov.au)
- ^ Australia-Indonesia Free Trade Agreement (papers.ssrn.com)
Authors: Luke Nottage, Professor, Sydney Law School, University of Sydney
Read more https://theconversation.com/clive-palmer-versus-western-australia-he-could-survive-a-high-court-loss-if-his-company-is-found-to-be-foreign-145334