Unpacking the ISDS: Why the ISDS actually is a threat to us here

[cali]

The first in a series I'll post: I try not to make these posts too long as I suspect that long posts are too often not read in detail.

First let me stipulate that the US has never lost an ISDS case. 17 have been brought. The US has prevailed in 13. 4 are pending. The TPP will significantly increase the volume of cases because many more corporations will have the right to bring ISDS cases.


Let's begin with a brief history:

The first ISDS was included in a trade agreement between Pakistan and Germany in 1959 to protect investors from unfair government actions and a court system that couldn't be trusted to rule equitably. The U.S. has about 50 trade agreements with ISDS provisions.

The most common claim echoed here at DU is about how the ISDS is nothing to get upset about because the U.S. has never lost an ISDS case- as mentioned above

A nation's laws cannot be changed by ISDS: True. An ISDS tribunal cannot alter the laws of a nation. But they can order restitution- and these can be large. That in turn can and does place pressure on countries, states and municipalities to not pass laws that they fear will result in being challenged by an investor. Such rewards also place pressure on a government to repeal laws. The former has already happened. One example is that several countries have put off plain packaging for cigarettes due to the WTO ISDS cases Philip Morris brought against Australia and Uruguay:



In 2011, Australia passed a tobacco-control law to discourage smoking. It required cigarettes to be sold in plain packages with prominent warnings, with brand information relegated to the bottom of the box. Touted as “one of the most momentous public health measures in Australia’s history” by the country’s health minister, the law was meant to deter a habit that will ultimately kill 1.8 million current Australian smokers, according to a recent study. After the country’s highest court upheld the constitutionality of the anti-smoking law, tobacco giant Philip Morris claimed that it violated the company’s corporate rights and launched a suit using a little-known provision called investor-state dispute settlement (ISDS). The case is pending, as is a similar case against Uruguay. A similar tobacco-control measure in New Zealand is on hold pending the outcome of these cases.

How can this happen? In each case, Philip Morris is empowered to sue because of investment treaties. Many treaties and trade agreements enshrine the rights of corporations to claim that a country’s right to regulate public health interferes with profits and to sue states to protect them. And the cases, heard in special tribunals, often protect corporate profits at the expense of the health and welfare of citizens.

What’s happening in these cases should serve as a cautionary tale for Americans, as President Barack Obama’s administration pushes through the final stages of negotiating the Trans-Pacific Partnership (TPP). The signature trade deal would open the United States to more suits just like these. Although the deal is being sold as a trade equalizer that would benefit U.S. citizens and companies, it could instead make it more difficult and more costly for the United States to protect its own people.

<snip>
http://foreignpolicy.com/2015/05/04/in-pro-corporate-tribunals-we-trust/

[riderinthestorm]

1. K&R. Thank you for your efforts to educate DUers with real facts about the TPP

[cali]

2. thank you so much rider.

I try not to use hyperbole or shaky information and to really research what I post about. By now, I have rather an extensive library on ftas and the tpp at my fingertips; that helps.

[riderinthestorm]

15. The Renco case... ((shudder)) Waiting for anyone to read that case and justify this nt

[cali]

17. oh, I've seen that.

it was Peru's fault for not upholding commitments it made to Renco.

[MosheFeingold]

26. Oligarchs protecting their own n/t

[Art_from_Ark]

3. More and more, TPP is sounding like a lot of

[cali]

4. I'd love to see any of the folks here supporting this

to dispute my op. They can try with their standard "you're being hysterical" stuff and they can repeat ad nauseum that it's all good because the U.S. has never lost a case, but as my OP is factual, denial, lying or ignoring, is all they have.

Alas, there aren't even a handful of people advocating for the TPP who honestly debate the subject.

[Art_from_Ark]

5. Yeah, there's someone here who claims that Bernie and Warren are "misrepresenting" TPP,

but in practically the same breath he claims that he himself knows little about the details but "believes" it will be good for our future

[cali]

16. It's the politcs of adoration. It's personality driven rather than policy driven

I see some of the more prominent tpp supporters in other threads this morning. They're staying away from this one as if it's kryptonite.

and yeah, some of the stuff they parrot is irritating.

[fasttense]

18. I know, I get the "you are so angry" insult whenever I disparage corporations and their GMOs

It's meant to detract from the facts and focus on you as an out of control, emotional fool. But most educated people can see through the ploy and realize they have switched from facts to personality assaults.

Keeping posting the truth. It always wins out in the end.

[cali]

19. thanks. There is such a large body of evidence contradicting

the claims of President Obama and supporters of the TPP. I try to post that evidence- even though much of is somewhat dry and technical. Much of constitutes a strong refutation of what the supporters claim, or poses questions that they have no answer for beyond "trust the President".

I don't post much in the way of "truth" about the tpp or tpa. I think truth is largely a subjective construct. I try to post facts and reasonable speculation rooted on those facts and history.

[leveymg]

6. We all know the outcome to this game - mostly US lawyers working for foreign affiliates suing the US

It will be a windfall for Wall Street law firms.

[cali]

7. yep. they don't care if they lose. they still get a hefty payday

and the ISDS record is replete with "justice delayed" cases. It's worth noting that those cases can have a negative impact as they're (ever so slowly) proceeding. We have seen that re cases in U.S. courts being impacted by ISDS cases.

[leveymg]

34. A positive evil. Corporations will be able to deter labor and environmental laws

and regulations in all states simply by threatening litigation.

It's the WTO Dispute Settlement Body on Crack.

[cali]

8. so where are you tpp supporters? Never mind. I completely understand why you're avoiding

this op. I intend to kick the shit out of it waiting for at least one of you tpp advocates to address this.

[Scuba]

9. K&R

[SamKnause]

10. K&R

Thanks for all the work you do to expose these

evil trade deals cali.

[cali]

11. well, I'd say trade deals that are more harmful than beneficial

but thanks so much, Sam.

(I try to use language that can't be attacked or use as diversionary tactic)

[SamKnause]

12. Thanks cali.

I call them as I see them.

(Anything that enriches the wealthy on the backs of the poor

Anything that enriches the wealthy and causes harm to the poor

Anything that enriches the wealthy and causes sickness and death to the poor

Anything that enriches the wealthy and runs the poor off their lands)

All of these things are evil in my book.

[cali]

13. I'm not arguing with you, but I'm sure you can understand

why I largely avoid that language in my posts about the facts.

[SamKnause]

14. I understand.

[magical thyme]

20. some noteworthy ISDS suits, and very high awards

A Swedish corporation sued Germany when Germany decided to phase out nuclear power.
http://www.italaw.com/documents/VattenfallRequestforArbitration.pdf

Eli Lilly sued Canada for $500M after Canada found one of its patents invalid.
https://www.eff.org/deeplinks/2015/04/leaked-tpp-investment-chapter-reveals-serious-threat-user-safeguards

An American company Renco sued Peru for $800 million because its contract was not extended after the company’s operations caused massive environmental and health damage.

a $2 billion claim against Indonesia by a UK-based oil company after its contract was cancelled because it was not in line with the law.

Awards are usually lower, but recent ones can also be very high, such as the $2.3 billion award granted by ICSID to an American oil company against Ecuador.

The ability to enforce these awards through seizure of assets owned and located abroad by the government makes ISDS a very powerful instrument.

http://www.globalresearch.ca/the-trans-pacific-partnership-agreement-tppa-when-foreign-investors-sue-the-state/5357500

[cali]

21. Thanks for adding those.

It's also worth noting that ISDS cases have expanded dramatically over the past few years.

[magical thyme]

24. yup. from 50 in the 60s to more than 500 now. (very good link below)

In the past few years, the number of such investor-state attacks has surged. From the 1960s – when this system was first established – until 2000, only 50 cases were initiated. Today, more than 500 cases have been launched. A whole industry of third-party financing and specialized law firms has sprung up to extract our taxpayer dollars and roll back key public interest policies using the investor-state system.

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.

http://www.citizen.org/investorcases


TABLE OF FOREIGN INVESTOR-STATE CASES AND CLAIMS UNDER NAFTA AND OTHER U.S. “TRADE” DEALS
April 2015
http://www.citizen.org/documents/investor-state-chart.pdf

[cali]

25. hey, mt

please come post in this thread, which is sinking like a stone and features information from one of the most knowledgeable opponents of the TPP. He's an expert on Intellectual property rights, trade and human rights and he talks about how USTR reps lied to him. It's revealing.

http://www.democraticunderground.com/10026654671

[fasttense]

22. It's a monster waiting to crash our economy like it did before.

The WTO’s General Agreement on Trade in Services (GATS) and the financial service
chapters of U.S. “Free Trade” Agreements (FTAs) limit the regulation of financial service
sectors subject to these agreements. The United States bound most banking and securities services
to comply with these rules and made sizeable commitments in insurance. The “trade” pact rules
simply ban many common forms of financial regulation, even if such policies apply to domestic and
foreign firms equally. U.S. government and corporate efforts in trade negotiations complemented
domestic lobbying to weaken and eventually repeal the New Deal’s system of banking regulation. For
instance, the Glass-Steagall Act created a firewall between commercial and investment banks to
prevent the former from speculating with consumers’ savings. But the 1997 U.S. WTO commitments
noted an intent to change Glass-Steagall to conform with WTO rules. The Gramm-Leach-Bliley Act,
which did so, passed in 1999 – the year the WTO’s Financial Services Agreement (FSA) took effect.


Many people still assume “trade” pacts are about traditional matters, such as tariff cuts. In fact, the
WTO, North American Free Trade Agreement (NAFTA) and other U.S. FTAs require signatories –
including the United States – to conform domestic policies to a broad non-trade deregulatory agenda.
Few in Congress read the legislation implementing the WTO in 1994 or NAFTA in 1993, much less
the pacts’ actual 900-page texts. Congress didn’t even get a vote on the expanded U.S. financial service
deregulation commitments contained in the subsequent WTO FSA. But if any country’s laws fail to
comply with WTO, NAFTA or FTA rules, the laws can be challenged before foreign tribunals, and
the country can be subjected to indefinite trade sanctions until its laws meet “trade” pact dictate

https://www.citizen.org/documents/FinanceReregulationFactSheetFINAL.pdf

If TPP passes, you can bet in about 3 to 5 years there will be another economic crash in the US. (The 2nd time around it always crashes faster.)

[cali]

23. thanks for adding that

the information about banking is particularly important, I think.

thanks for helping turn this into a resource thread. It's appreciated.

[Hoyt]

27. Alls I need to know, USA never lost one, and ISDS -- used since 1959 -- can't change our laws.

The rest is bunk, especially if you read any of the details of the cases.

Fact is, any company can sue anyone. I can sue you. Doesn't mean I'm going to win.

Take Phillip Morris, they are getting nowhere and Australia's tobacco law rolls on.

Finally, just about every country in the world signs these dispute agreements -- run under United Nations and WTO auspices. If it were that bad, do you think they would?

[cali]

29. LOL. You have just demonstrated with great emphasis why your arguments

are so... scanty.

Let's parse your post, hoyt:

No, you can't change the laws through the ISDS. I stipulated that in the beginning of my op. that you missed it is no shock. As I indisputably showed, corporations can influence nations on the making of laws. and you ignore that because you can't argue it. There isn't any doubt that the PM Australia AND Uruguay cases have influenced other governments- they've said so themselves, hoyt.

You don't provide links to back up your declarations- not that "it's bunk" is anything but meaningless.

And just the fact that the PM case, as so many

you bluster a good game, but you don't seem to have enough ambition to research anything or make an actual argument.

Your anti-intellectual approach is making dismissing your "opinion" on this waaay too easy, hoyt.

[Hoyt]

31. I don't need links, your post said it. That's why I distilled it to one sentence.

I thought I was on Ignore.

[cali]

32. actually, you do need links to evidence for your claims if you expect

anyone to take you seriously- other than the cadre of those who trust the President on this issue.

You've become easy to dismiss, hoyt. and a bit fun to toy with.

[riderinthestorm]

36. Have you read the Renco case? US corporation lead poisoning kids

and is suing Peru to keep poisoning the kids, and is asking $800 million from this impoverished nation for the hassle Peru has put them through.

So yeah, we'll "win". We always "win".

Happy about that?

[Hoyt]

38. Renco has been in arbitration for 4.5 years, and has gotten nowhere. They won't either.

In fact, as late as November 2014, Doe Run Peru (Renco) was up for auction, and no one wants to buy them.

[riderinthestorm]

40. The U.S. always "wins" these cases - remember? You've been proudly touting that fun fact

[Hoyt]

41. You need to reorient. Our government has never lost a case against USA. Our companies have lost

cases against foreign countries.

I know it's complicated, but try to keep up.

[historylovr]

28. K & R

[bbgrunt]

30. thanks Cali for this tutorial. very helpful.

[cali]

33. thank. glad you find it helpful

[cali]

35. kick for the "trust the president on the tpp" folks.

[cali]

37. afternoon kick

[eloydude]

39. Let's Bern Em kick