One of the very few alleged “checks and balances”
in the Overseas Investment Act is the requirement that the persons owning
and/or controlling the applicant transnational corporation be “of good
character”. Note that this only applies to individuals, not to the corporations
themselves.
The Campaign Against Foreign Control of Aotearoa
(CAFCA) has been making “not of good character” complaints to the Overseas
Investment Office (OIO) and its predecessor, the Overseas Investment Commission
(OIC), since the late 1990s. It’s a long story. Here’s the link to articles
about the subject on the Websites of CAFCA and Foreign Control Watchdog
Not
one of our complaints has ever been even partly upheld – until now.
On December 8th, 2016, I wrote to the OIO: “In light of the New York Stock Exchange
delisting Agria, we request that you investigate whether the people owning
and/or controlling Agria are of good character, and whether they should be
allowed to continue own and/or control PGG Wrightson. ‘Agria says it will fight New York Stock Exchange delisting’ This is a quote from a New Zealand Herald article reporting the same
thing: ‘The Exchange said it had uncovered evidence demonstrating that the
company and its management engaged in operations ‘contrary to the public
interest’ and not in keeping with sound public policy pursuant to requirement
of Exchange's Listed Company Manual’”.
Unlike when making an Official Information Act
request to the OIO (or any other Government agency) there is no time limit that
the OIO has to meet to answer a “not of good character” complaint. To this day, the OIO has not given CAFCA
its decision about our Agria complaint.
But, right before Christmas (when news of this
nature is traditionally, and quietly, released) the OIO included this in its
cutely titled newsletter The PeriOIOdical
(December 2018)
“The
OIO has investigated the good character of Agria Singapore and former PGG
Wrightson Chair Alan Lai in relation to Agria’s shareholding in PGG Wrightson”.
“Both
Agria and Mr Lai have co-operated with the OIO investigation, following the
United States Securities and Exchange Commission’s investigation”.
“The OIO, Agria and Mr Lai have reached a
settlement agreement which required Agria to sell down below its 50.2 percent
interest in PGG Wrightson (which it has now done in compliance with the
agreement) and provided for penalty proceedings to be filed in the High Court”.
No
acknowledgement of CAFCA’s role and the OIO hasn’t bothered to tell us but
we’ll take the credit and chalk it up as a first. More please. The
whole subject of “good character” is one that needs to be front and centre in
the Government’s stage 2 review of the Overseas Investment Act, which is being
undertaken this year.
Murray Horton
Secretary/Organiser
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