Five Leading Legal Scholars on TPP: We Write Out of Grave Concern

[eridani]

http://readersupportednews.org/opinion2/277-75/30076-focus-5-leading-legal-scholars-on-tpp-we-write-out-of-grave-concern

We write out of grave concern about a document we have not been able to see. Although it has not been made available publicly, we understand that the Trans-Pacific Partnership (TPP) trade agreement currently being negotiated includes Investor-State Dispute Settlement (ISDS) provisions. ISDS allows foreign investors—and only foreign investors—to avoid the courts and instead to argue to a special, private tribunal that they believe certain government actions diminish the value of their investments.

Courts are central institutions in the rule of law. Americans have much to be proud of in the evolution of our court system, which has evolved over the centuries and now provides equal access for all persons. Courts enable the public to observe the processes of development of law and to watch impartial and accountable decision-makers render judgments.

We write because of our concern that what we know about ISDS does not match what courts can provide. Those advocating using this alternative in lieu of our court system bear the burden of demonstrating why such an exit is necessary, and how the alternate system will safeguard the ideals enshrined in our courts. Thus far, the proponents of ISDS have failed to meet that burden. Therefore, before any ISDS provisions are included in the TPP or any future agreements, including the Transatlantic Trade and Investment Partnership (TTIP), their content should be disclosed and their purposes vetted in public so that debate can be had about whether and if such provisions should be part of proposed treaties. Below, we detail the ways in which ISDS departs from the justice opportunities that U.S. courts provide.

Our legal system rests on the conviction that every individual, regardless of wealth or power, has an equal right to bring a case to court. To protect and uphold the rule of law, our ideals of fairness and justice must apply in all situations and equally to everyone. ISDS, in contrast, is a system built on differential access. ISDS provides a separate legal system available only to certain investors who are authorized to exit the American legal system. Only foreign investors may bring claims under ISDS provisions. This option is not offered to nations, domestic investors, or civil society groups alleging violations of treaty obligations. Under ISDS regimes, foreign investors alone are granted legal rights unavailable to others – freed from the rulings and procedures of domestic courts.

[Wilms]

1. ^

[Scuba]

2. "Investor-state" might just be the most offensive term in the English language.

[Buns_of_Fire]

4. Along with "stakeholders"... I was thinking that as I read the OP.

But I suppose they have to catapult the propaganda to achieve maximum symbiosis with the new paradigm. (Whatever I just said.)

We've seen what happens when corporations are allowed to be considered "people" -- we may soon see what happens when corporations are allowed to be considered "countries".

[appalachiablue]

43. The Investor Class- one of my most disliked, but accurate terms these days.

[libdem4life]

44. Aren't they kin to "Corporation People"?

[Enthusiast]

47. It bothers Fascists not in the least.

[Hoyt]

3. Seems like they'd do better to become an arbiter so that countries or corporations could choose them

in a dispute. Law professors are used quite often as arbiters in these cases.

Interestingly, they fail to mention that a state/country that has a dispute with a foreign corporation/investor can sue in the state's courts. That arguably gives the state/country an advantage. But, why mention that?

[cali]

5. the system itself has an inherent conflict

http://www.citizen.org/documents/egregious-investor-state-attacks-case-studies.pdf

[Hoyt]

9. Funny how most countries are content with the dispute mechanism that is in over 2500 trade agreement

worldwide. You'd think if they were so bad, no one would sign them.

Seems to me, the arbitration tribunals -- which are run under rules established by the United Nations -- are acceptable to almost all countries.

If you read the details of the few cases that have been filed since 1959, you'll find the companies usually have an argument that they have been treated unfairly under international law. Of course, once the details are presented -- over the several years these cases take to be arbitrated -- the arbiters usually decide for the country.

The system of selecting the judges/arbiters seems fair too. The country chooses one arbiter; the company chooses another; and the third is selected by mutual agreement between the two parties.

And, Obamatrade actually includes provisions that will limit frivolous cases, and improve the dispute mechanism.

[cali]

15. the Europeans are distinctly unhappy with the ISDS proposal in

the TTIP. Other countries- from Canada to Uruguay have registered complaints, hoyt.

Your claim doesn't hold water. In addition, I'd note that government corruption by corporations is hardly unknown. And I've read many cases. Although it is true overall that countries prevail more often than not, there have been some really egregious cases- and quite often these cases drag on interminably. If you read them, you'd know that, hoyt.

[Hoyt]

23. They'll sign them, complaints or a few protesters, notwithstanding.

We have people here who protest marriage equality, civil rights laws, etc. Doesn't mean they are right.

[cali]

27. OK, we're done. You are just like the people you whinge about

who complain that President Obama wants to make them slaves.

It's just as crazy and repulsive to try and forge a connection between people (and nations) who oppose aspects of the ISDS process to bigots who oppose civil rights and homophobes. Actually, it even uglier, hoyt.

I cannot begin to express the contempt I feel for such rank dishonesty. So much for trying to have a discussion with you. You truly are what you express such disdain for.

So sorry to see you flinging...

Good riddance to bad...

[Hoyt]

30. There's a bit of xenophobia in the opposition too, not to mention lack of concern for poor in

other parts of the world.

[DisgustipatedinCA]

8. Anyone defending the TPP is either a señor exec with a multinational

...or a clueless cheerleader who just wants to be on the winning side. Do tell me, Hoyt, what's in the TPP that will personally help you and/or your family.

"I think I'll get a raise or maybe a better job if the trade agreement passes", said no American worker ever.

[Hoyt]

10. Well, many opposed are proof our education system has failed us, and

a strong case for mandatory continuing education after high school.

[DisgustipatedinCA]

13. I asked you a question. You're not able to answer that question.

It's ok. I already knew you couldn't answer the question. But it should probably serve as a reminder to you that's it's generally a bad idea to cheerlead for something about which you know nothing.

But the question is still out there if you decide you want to take a swing at it anyway.

[Hoyt]

17. You made accusations.

I think the TPP will help corporations find business through new markets, producing additional tax revenue to fund education, training, safety-nets for those displaced by technology, etc.

I believe it will create jobs here.

I think it will force China to begin cleaning up its act. It will produce better jobs in poor countries, and a lot more.

Things don't always have to improve your life directly.
I'm typing on my phone, but I think the TPP and similar agreements will improve the world. Apparently you are one of those who don't care about that.

[DisgustipatedinCA]

20. You think we'll get extra tax revenues from TPP and we will use the money for "safety nets"?

Well, you did answer my question. Your answer is hopelessly naive, but you provided an answer. Thank you.

[Hoyt]

22. Yes, it will increase tax revenue now, and even more when Congress gets off its rear

and increases rates and tightens taxation on foreign income.

Apparently you agree with the rest of my comment.

[DisgustipatedinCA]

26. People generally vote with their own self interest in mind.

you can say all you want about selflessness and high-minded ideals, but that isn't the way the world works, and I'm not going to start pretending it is so that your framing works out better.

I'll leave you and John Boehner and Mitch McConnell alone now so you can discuss the taxes you plan to raise and the plight of Vietnamese farmers that all of you spend your waking hours thinking about.

[Hoyt]

29. Well, that is one of the problems in this country - personal greed.

[DisgustipatedinCA]

32. I'm glad that you, Boehner, and McConnell are beginning to address the injustices. nt

[Hoyt]

38. I've been doing that. And I don't side with ignorant, xenophobic Tbaggers on TPP.

[eridani]

49. TPP is no differenent from the other "trade" agreeements that have

--trashed our industrial base. No such agreement has resulted in anything other than job loss. The effect on poor countries will be that they maintain or worsen their shitty wage scales in order to retain "competitive advantage."

China will continue to do whatever the fuck it pleases, given that it is not a signatory.

[cali]

16. Many people posting on it from both sides haven't done their due diligence

researching it.

And many supporting it, hoyt, have expressed that they support it because they love and trust President Obama. Touching, isn't it?

[Hoyt]

18. And many are opposed because they believe he's intent on making them slaves, or some

such bull.

[cali]

25. anyone employing that language is full of shit.

I don't contest that there are people opposing it who just parrot nonsense.

[Unvanguard]

14. TPP is only peripherally a trade agreement.

That's something that both critics and boosters tend to miss. The regulatory elements, things like ISDS and intellectual property, are much more important. And also more dependent on details, which regrettably we still haven't seen.

[Unvanguard]

12. You want domestic courts that are independent enough to rule against the government.

The question is whether the way to remedy the absence of such courts, in some places, is to subject all parties to a trade agreement to an essentially unaccountable international arbitration system where there is serious potential for bias and few of the constraints that limit that possibility in domestic courts (like strong professionalization norms and precedent).

[Hoyt]

19. Yeah, the United Nations and WTO are conspirators.

[Unvanguard]

21. I'm not sure where you got that claim from my post.

I am not alleging any conspiracy. I am saying that the objections made in the article (which also does not allege any conspiracy) have some merit, and their merit is not obviated simply by pointing to the fact that domestic courts can have bias, too.

[MannyGoldstein]

36. I know some law professors

Last edited Sun May 10, 2015, 01:45 PM - Edit history (1)

Harvard law school folks, we live in a close suburb.

They are quite wealthy. Harvard pays well, but not *that* well. They make millions working for big corporations. And they are quite aware of who's buttering their bread.

[Unvanguard]

6. Maybe a bit overstated but sounds basically right to me.

The case for ISDS is that it fixes rule-of-law deficits in places where the norm is weak; investors who don't trust the domestic courts to protect their rights have access to an alternative. The problematic institutional features of the process, described in the article, combined with the willingness of investors to use it as a process even where domestic courts would provide adequate treatment, make it unclear that this is actually their primary accomplishment.

[WinkyDink]

7. This is so completely disheartening, made immeasurably so by its being pushed by a DEMOCRATIC Presi-

dent.

This is not why or how I became a Democrat even as a child.

[Enthusiast]

48. +1 a whole bunch!

[librechik]

11. The notion that citizens, scholars or presidents can do anything to halt this inevitable surrender

is sadly absurd. The established elite are unelected and don't respond to anything but their own concerted lust for power. The elite are going to do what the elite do and it has nothing to do with us. They have no responsibility to improve the lot of citizens. Though we are powerless to change the economy on our own, nevertheless it is up to us to arrange our individual economic circumstances despite shifting conditions without assistance, as always. We are mere serfs again, and the global empire just grows and grows, cancerous and crumbling while the oligarchs pocket the loot.

[PowerToThePeople]

24. they respond to this

[HereSince1628]

31. Just please remember that the Reign of Terror was followed by

the reign of a dictator.

The aftermaths of revolutions have long history of being losses for democracy. If you go in for a revolution, you've got to be in for the enduring struggle to protect the outcome from a new 1%.

Franklin was quite prophetic when he said 'It's a Republic, if we can keep it.'

[PowerToThePeople]

33. We have not kept it.

I do not want to see violent revolt either. We just have to see what path the current rulers of this non-republic choose to do. They are currently in charge, not the citizens of this supposed "democracy."

[HereSince1628]

35. Totally agree...Reagan,the DLC, and Bush tax-cuts all preferred capitalism to democracy

as a source of determining the meaning of good in "common good".

Using an economic model rather than a social model to cough up policies for the 'common good' had predictably sad results.

[PowerToThePeople]

37. True.

My ideal view of government would be "The Union of the Citizens of the United States." It should be a counterbalance of capitalism. Not that I agree with the idea of capitalism, but if we are to have it as our economic model we need a counterbalance. It is the government's job to represent the citizens, just like it is a Union's job to represent the employees.

[hifiguy]

40. The republic given to us by Mr. Madison and Mr. Franklin, among others,

has one foot in the grave, the other on a banana peel and is holding on to a kite.

Capitalism beat both Communism and Democracy.

[HereSince1628]

42. I wouldn't argue against that... my comment isn't that things must change

I think the revolution that's needed is one of ideology.

[riderinthestorm]

28. Silly! Obviously they haven't listened to anonymous DU Internet experts!!11!!11

[Freelancer]

34. Tax inversion strategies may give unfair advantage because of ISDS

The latest trend to get out of taxes is for companies to establish a subsidiary in another country, and then transfer the address of their corporate headquarters there. We all thought this was solely about cheating America out of revenue. Now, perhaps, we see another even more insidious aspect of tax inversion.

Under ISDS provisions, couldn't what is in actuality an American company turn around and use its foreign status on paper to sue the U.S. for relaxation or repeal of laws and regulations that apply to them? If so, and enough companies proceed with inversions -- locating their new headquarters in nations that are part of TPP -- American laws (maybe even environmental regulations) might not apply to them.

If this is correct, it would confer an unfair advantage to any company that relocated its headquarters in a TPP zone.

[Duppers]

39. K & R

Wish some posters would read this.

[kentuck]

41. It's nothing short of war upon the people.

And the corporations have most of the power...or so they think.

[Rex]

45. IT is a giveaway to the owners, an insult to the labor class.

Of course corporate types love it...why I don't know, I guess they are so shortsighted as to believe the owners will include them in the haves.

That is why I SMH toward such myopic people and their sorry agenda.

[libdem4life]

46. We used to say "follow the money" But this is so opaque that we must "follow the cheerleaders"

Republicans and the National Chamber of Commerce come immediately to mind. What's not to understand...we don't need to Know or Prove any fu#### thing. They've done it for us. They don't hop on until they Know.

Then again, we could listen to our own representatives who share our views. Nah, that would be too easy.