The most shocking thing about the leaked draft of the Trade in Services Agreement is the innocuously named ''dispute settlement'' provision.

The authors, the European Union and the US, want Australia to let an outside arbitrator re-adjudicate decisions made by government ministers and the High Court.

So-called investor-state dispute settlement procedures are common in international agreements. Australia has one in a treaty with Hong Kong. Tobacco giant Philip Morris fought Australia's health minister all the way to the High Court over plain packaging and lost in 2012. It is trying again under the provisions of the Australia-Hong Kong treaty. The specially-constituted tribunal sitting in Singapore has become a sort-of super High Court, on this one issue higher than Australia's highest.

Concern about such a prospect made former Labor trade minister Craig Emerson vow never again to include an investor-state dispute settlement clauses in a Australian agreements. The Coalition's record is mixed. John Howard successfully resisted pressure from the US to include one in the Australia-US free trade agreement. The Coalition's Andrew Robb has allowed one in the Australia-Korea free trade agreement and kept one out of the Australia-Japan agreement.