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cali

(114,904 posts)
17. Here:
Tue Aug 16, 2016, 03:56 AM
Aug 2016

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Some years ago, The New York Times notoriously described investment arbitration proceedings under the North American Free Trade Agreement (NAFTA) in the following terms:
Their meetings are secret. Their members are generally unknown. The decisions they reach need not be fully disclosed. Yet the way a small number of international tribunals handles disputes between investors and foreign governments has led to national laws being revoked, justice systems questioned and environmental regulations challenged.6


Many scholars raise issues of impartiality of arbitrators, suggesting that arbitral decision-making is biased, apparently favouring investors and multinationals against states and weaker parties such as consumers and employees.7 Some countries have cited apparent bias of international arbitration as a reason to withdraw from the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States.8

More recently, the 2013 UNCTAD Report on Recent Developments in Investor-State Dispute Settlement stated ‘the continuing trend of investors challenging generally applicable public policies, contradictory decisions issued by tribunals, an increasing number of dissenting opinions, concerns about arbitrators’ potential conflicts of interest all illustrate the problems inherent in the system [of international arbitration]’.9


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http://jids.oxfordjournals.org/content/4/3/553.full

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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 frustrating the corporations' expectations. The amount is based on the "expected future profits" the tribunal surmises that the corporation would have earned in the absence of the public policy it is attacking. 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 $440 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. deals, more than $34 billion remains pending in corporate claims against medicine patent policies, pollution cleanup requirements, climate and energy laws, and other public interest policies. Continue reading...

http://www.citizen.org/investorcases

As for Vietnam, the labor enforcement provisions supposedly in place to allow for labor representation and the formation of unions, is a joke:

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Human Rights Watch and others have expressed concerns that the agreement’s labor chapter and associated bilateral agreements will not adequately safeguard labor rights in TPP countries with poor labor rights records, notably Vietnam, Malaysia, and Brunei. Although the Consistency Plan agreements are important to motivate much-needed reform, the extent to which they will be implemented or enforced is unclear, particularly given poor enforcement of labor rights provisions in other trade agreements and under each country’s domestic laws.

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The labor chapter requires all TPP members to meet core international standards on labor rights as set out in International Labour Organization (ILO) regulations. Additionally, as mentioned previously, the US has negotiated separate Consistency Plans with Vietnam, Malaysia, and Brunei.

A major concern about the TPP’s labor chapter is that it can only be enforced by governments. The TPP empowers member countries to bring legal disputes against other member countries for violating the labor chapter’s terms. But while unions, labor advocacy groups, and trade federations could lobby or petition the US or other governments to take formal action to enforce the TPP’s provisions, they will not be able to file a complaint under the agreement. This contrasts sharply with investors and corporations, who can bring dispute settlement proceedings against member countries under the agreement’s provisions on Investor-State Dispute Resolution (ISDR) mechanisms.

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https://www.hrw.org/news/2016/01/12/qa-trans-pacific-partnership

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