Investor-state dispute settlement

[shawn703]

One of the scariest parts about TPP that I saw were the ISDS provisions - the things that say if a country passes a law to help their citizens, environment, etc., that hurts a foreign company's profits, the country could get sued and have their case decided by a tribunal made up of career lawyers who take turns deciding cases and bringing forth cases. I have a friend who works in this area who says all the hype about ISDS is overblown and that we have these provisions in pretty much all our agreements, and the sky has never fallen because of them. I asked for some material that could support her position since everything I have found says ISDS is bad. She provided a PDF located at http://digitalcommons.wcl.american.edu/ab/vol4/iss1/5/

Are there any people familiar with this area of trade law who could critique the document and tell me where the author is wrong or what has been conveniently omitted? My read through it makes it look like ISDS wouldn't be necessarily bad for the U.S. but it would be pretty exploitative of developing countries.

Again not talking about the other parts of TPP, just focusing on ISDS.

[djean111]

1. ISDS is bad for every country.

The sky does not fall, but the taxpayers are, IMO, on the hook for bigger and bigger settlements, or else laws to protect citizens will be overturned, if a corporation's profits are deemed to be diminished.
In fact, I would not be surprised if the United States does not get sued by the Keystone folks, if the pipeline is actually not given the go-ahead. In a way, since it likely is not economcally feasible (perhaps) to build the pipeline, it would have been interesting to see if it would have been built.

The trade law provisions are just a small part of the "trade" agreement, and saying that this one part is not so bad does not make the rest of it acceptable in any way.

[djean111]

2. Some more information on the investor state setup - it is bad.

http://www.citizen.org/investorcases

Corporations to Bypass our Courts, Challenge Basic Protections

Among the most dangerous but least known parts of today's "trade" agreements are extraordinary new rights and privileges granted to foreign corporations and investors that formally prioritize corporate rights over the right of governments to regulate and the sovereign right of nations to govern their own affairs. These terms empower individual foreign corporations to skirt domestic courts and directly challenge any policy or action of a sovereign government before World Bank and UN tribunals.

Comprised of three private attorneys, the extrajudicial tribunals are authorized to order unlimited sums of taxpayer compensation for health, environmental, financial and other public interest policies seen as undermining the corporations' "expected future profits." There is no outside appeal. Many of these attorneys rotate between acting as tribunal "judges" and as the lawyers launching cases against the government on behalf of the corporations. Under this system, foreign corporations are provided greater rights than domestic firms.

This extreme "investor-state" system already has been included in a series of U.S. "trade" deals, forcing taxpayers to hand more than $400 million to corporations for toxics bans, land-use rules, regulatory permits, water and timber policies and more. Under a similar pact, a tribunal recently ordered payment of more than $2 billion to a multinational oil firm. Just under U.S. "trade" deals, more than $14 billion remains pending in corporate claims against medicine patent policies, pollution cleanup requirements, climate and energy laws, and other public interest policies

much more at the link. Any attempt to argue that this is okay because we are already doing it is disingenuous; things will get much much worse.

[djean111]

3. Another important point - there is no use in just attacking one provision of the TTP - with

the Fast Track that Obama wants, the vote is either yes or no, no revisions, additions, or deletions are allowed.
That absolutely REEKS.