Why does the Administration Waste So Much Political Capital on Corporate Rights? [View all]

[OrwellwasRight]

The Administration is tying itself in knots defending the corporate court of ISDS (investor-to-state dispute settlement). It has no real backers outside Wall Street, the US Chamber of Commerce, NAM, and other giant business conglomerates. So we need to keep asking ourselves why or why didn't Obama take one look at this messed up system and throw it out if he was truly committed to a new set of trade rules? So far, they don't seem all that different after all.

http://infojustice.org/archives/34113

Dizzy Yet? The Spin on Investor State Dispute Settlement Just Doesn’t Stop

Introduction: Recently the United States Trade Representative (USTR) released a memo to reporters with Q&A’s on Investor-to-State Dispute Settlement (ISDS). ISDS is a mechanism by which foreign investors can challenge national governments, alleging that the government violated their investor rights. These rights include the right to be fairly compensated for expropriated property and to non-discriminatory treatment, but also the right to a “minimum standard of treatment,” which includes “fair and equitable treatment” and “full protection and security” and the right to be free from “performance requirements.”

While these may sound reasonable, in fact these are extremely broad legal rights, many of which are not clearly defined in domestic law. The challenges take place not in domestic courts, but in international arbitration panels that do not apply domestic law. There are numerous “investment treaties” in existence, but their proliferation does not make them harmless. There are lots of rats and mosquitoes in Washington, D.C., yet you find few defending them based on their capacity to reproduce successfully. You can read the U.S. Model Bilateral Investment Treaty, which embodies the Administration’s position on ISDS and other protections for investors, here.

ISDS Tilts the Playing Field in Favor of Investors by Providing a Separate Justice System

The memo claims that ISDS does not tilt the playing field in the United States further in favor of big multinational corporations. But it fails to explain exactly how a system that is only open to foreign investors—and no one else in our society—isn’t a giveaway of power to that particular group. The argument that separate systems of justice constitute a level playing field doesn’t pass the laugh test. Reporters and citizens should ask who is demanding the special right to bypass domestic courts and why.

ISDS Provides Rights Far Outside of U.S. Law

The memo then claims that ISDS provides “protections for a limited and clearly specified set of basic rights – like non-discrimination and compensation in the event of an expropriation – that are already consistent with U.S. law.” This statement is not correct. The U.S. ISDS model requires countries to provide foreign investors a “minimum standard of treatment,” which includes “fair and equitable treatment and full protection and security.” The concepts of “minimum standard of treatment” and “fair and equitable treatment” are international law vague, ill-defined concepts that do not exist in U.S. law and are not interpreted according to U.S. law. And even the basic protections of U.S. law are interpreted differently by international tribunals than by U.S. judges using U.S. case law.

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ISDS is a Far More Powerful Process than the One Used for Labor & the Environment

The memo then compares ISDS to the dispute settlement provisions used for labor and environmental disputes. In fact, there is no comparison. The arbitration procedures for labor, environmental, and other commercial disputes in trade deals are government-to-government, which simply means the dispute involves the elected governments of two countries, like the U.S. and Guatemala. Workers whose rights are violated (as is currently happening in Guatemala, Honduras, and Colombia) can’t bring a claim on their own. We have to petition our governments to do so—and wait indefinitely for a response. But under ISDS, foreign investors, such as Occidental Petroleum, Chevron, or The Renco Group, can bring cases directly—no government middleman required.

More at link . . .

The key question the post asks is: "Are these the values that the U.S. really wants to promote in the world through its trade deals?"

Ask yourself. Are they? If so, why? If not, why not?