Here's the worst part of Obama's proposed Trans-Pacific Partnership: it will tilt the playing field even further — much much further — in favor of the world's wealthiest investors. This New Yorker article, Trade Agreement Troubles, sums it up perfectly. The bureaucratic term for these global of, by and for the Investing Class regulations is Investor-State Dispute Settlement (or I.S.D.S.) provisions. Don't be put off guard by such a bland sleep-inducing term like “Investor-State Dispute Settlement.” This is fuckin' Scary.
These provisions have been around for fifty years already, as the global corporations and their PR puppets keep telling us. Technically, yes. But as the linked article says:
“I.S.D.S. lawsuits used to be rare, but they’re becoming a growth
industry. Nearly a hundred have been filed in the past two years, as
against some five hundred in the quarter century before that. Investor
protection, previously a sideshow in corporate law, is now a regular
part of law-school curricula...This mission creep has been abetted by the fact that the language of
I.S.D.S. provisions is often vague.”
A law professor who specializes in international-investment
law said: “The rights given to investors are so open-ended and
ambiguous that they allow for a lot of creative lawyering.”
One current example — not mentioned in the linked article — is Congress' recent vote to repeal the requirement for Country of Origin labeling on imported food products. Country of Origin labels have been required for the past thirty years, but Congress' stated reason for repealing the requirement was that some billionaire in Europe or Asia might sue the United States for jeopardizing his/her investment profits. Or something.
Another example: Philip Morris Asia is suing Australia, using a 1993 trade agreement between Australia and Hong Kong — where Philip Morris Asia is based — because Australia's recent anti-smoking campaign has violated the investor-protection provisions contained in the trade agreement. Philip Morris Asia not only wants Australia to cease and desist from their anti-smoking drive; the company is also demanding billions of dollars in compensation.
The case is still pending, but this is the exact type of international lawsuit — sort of like Goliath hitting David with a slingshot — that will become a lot more ubiquitous if the Trans-Pacific Partnership goes through.
From the linked article again:
“There’s nothing wrong with domestic courts reviewing government
regulations, but outsourcing the responsibility to international
tribunals is troubling. In effect, you’re giving these arbitrators the
power of review over domestic law and regulation.”
The article points out that America used to be the 800-pound gorilla that intimidated other countries:
“In the old days, aggrieved American investors would call on the Navy to
protect their interests—thus the phrase 'gunboat diplomacy.' How much
better that now they just call their lawyers...I.S.D.S.-style provisions may once have made sense. But they’re now
outdated and unnecessary. And including them in trade agreements
undermines the broader case for free trade, by making it look like
exactly what people fear—a system designed to put corporate interests
above public ones. If the Administration wants these deals to be seen as
legitimate, it can start by excising the I.S.D.S. provisions. We no
longer send out the gunboats. Let’s call back the lawyers, too.”
Labels: Investor-State Dispute Settlement, ISDS provisions, Trans-Pacific Partnership