For years now, we’ve been warning about the problematic “ISDS” — “investor state dispute settlement” mechanisms that are a large part of the big trade agreements that countries have been negotiating. As we’ve noted, the ISDS name is designed to be boring, in an effort to hide the true impact — but the reality is that these provisions provide corporate sovereignty, elevating the power of corporations to put them above the power of local governments. If you thought “corporate personhood” was a problem, corporate sovereignty takes things to a whole new level — letting companies take foreign governments to special private “tribunals” if they think that regulations passed in those countries are somehow unfair. Existing corporate sovereignty provisions have led to things like Big Tobacco threatening to sue small countries for considering anti-smoking legislation and pharma giant Eli Lilly demanding $500 million from Canada, because Canada dared to reject some of its patents noting (correctly) that the drugs didn’t appear to be any improvement over existing drugs.
The US has been vigorously defending these provisions lately, but with hilariously misleading arguments. The White House recently posted a blog post defending corporate sovereignty, with National Economic Council director Jeff Zients claiming the following:
ISDS has come under criticism because of some legitimate complaints about poorly written agreements. The U.S. shares some of those concerns, and agrees with the need for new, higher standards, stronger safeguards and better transparency provisions. Through TPP and other agreements, that is exactly what we are putting in place.
There’s something rather hilarious about saying that there needs to be “greater transparency” and promising that the secret agreement you’re negotiating behind closed doors and won’t share with the public has those provisions in them somewhere.
Either way, thanks to Wikileaks, we now have the “Investment” Chapter (or at least what it was as of January 20th), and it shows that, as per usual, the US is being entirely misleading in its claims. As Public Citizen highlights:
The leaked text would empower foreign firms to directly “sue” signatory governments in extrajudicial investor-state dispute settlement (ISDS) tribunals over domestic policies that apply equally to domestic and foreign firms that foreign firms claim violate their new substantive investor rights. There they could demand taxpayer compensation for domestic financial, health, environmental, land use and other policies and government actions they claim undermine TPP foreign investor privileges, such as the “right” to a regulatory framework that conforms to their “expectations.”
The leaked text reveals the TPP would expand the parallel ISDS legal system by elevating tens of thousands of foreign-owned firms to the same status as sovereign governments, empowering them to privately enforce a public treaty by skirting domestic courts and laws to directly challenge TPP governments in foreign tribunals.
Existing ISDS-enforced agreements of the United States, and of other developed TPP countries, have been almost exclusively with developing countries whose firms have few investments in the developed nations. However, the enactment of the leaked chapter would dramatically expand each TPP government’s ISDS liability. The TPP would newly empower about 9,000 foreign-owned firms in the United States to launch ISDS cases against the U.S. government, while empowering more than 18,000 additional U.S.-owned firms to launch ISDS cases against other signatory governments. (These are firms not already covered by an ISDS-enforced pact between the United States and other TPP negotiating governments.)
As for all that “transparency” that the White House promised? Yeah, don’t count on it:
As revealed in Section B of the leaked text, these tribunals would not meet standards of transparency, consistency or due process common to TPP countries’ domestic legal systems or provide fair, independent or balanced venues for resolving disputes. For instance, the tribunals would be staffed by private sector lawyers unaccountable to any electorate, system of precedent or substantive appeal. Many of those involved rotate between acting as “judges” and as advocates for the investors launching cases against governments. Such dual roles would be deemed unethical in most legal systems. The leaked text does not include new conflict of interest rules, despite growing concern about the bias inherent in the ISDS system.
Contrary to claims from the Obama administration that the TPP’s investment chapter would somehow limit the uses and abuses of the controversial ISDS regime, much of the leaked text would replicate, often word-for-word, the terms found in past U.S. ISDS-enforced agreements. However, some terms would widen the scope of domestic policies and government actions that could be challenged before extrajudicial tribunals, without offering meaningful new safeguards for those policies.
The basic concept behind early ISDS/corporate sovereignty provisions may have made sense — in which companies that were afraid to invest in developing nations out of fear the government would come in and seize their factory or whatever — but expanding it to cover basically all international trade, while the definitions are interpreted to mean companies can challenge any law they don’t like in front of a set of private judges (who also work for those same companies in other cases) is ridiculously problematic.
And, once again, we see why the USTR absolutely refuses to be transparent about this by releasing this information publicly. It knows that such a deal would be bad for the American public, so it keeps them secret until nothing can be done. I guess if you’re undermining democracy by giving corporations power over lawmakers, you might as well go all the way and hide your proposals from the voting public at the same time.