Insider view on the "secret" TPP

[PosterChild]

Dick Sadler runs a fruit-packing plant in Dundee, a few miles from the Sokol Blosser winery in Yamhill County, shipping jars of Oregon blueberries to Japan. Unlike Sokol Blosser, Sadler does not have to take the TPP’s benefits purely on faith; he is on a federal advisory committee on agricultural trade and has received confidential briefings on the negotiations.

Sitting in his farmhouse surrounded by hazelnut trees, he said he has heard little from trade officials that gives him pause. “You can’t negotiate something as complex as this in public,” he said. The benefits will be more meaningful for small players like himself, he added, than for big exporters who can more readily deal with the current complications of international trade — the labeling rules and the ingredient certifications and so forth.

“The TPP is designed to give us structure to deal with all of that,” he said. “It’s hard to say what’s bad about it.”

Why Obama went to Oregon to push Congress on trade agreements

http://wapo.st/1FfxhPb

[cali]

1. He's someone who stands to benefit from it.

That's fine, but he's hardly impartial. Here, have a look from another insider- someone who is a leading expert on trade and IP issues:

Professor Flynn wrote this on April 15 of this year. He's a widely respected lawyer and professor. His area of expertise is the " intersection of intellectual property, trade law, and human rights".
https://www.wcl.american.edu/faculty/flynn/

Last week I expressed my shock in seeing that the Trans Pacific Partnership agreement proposes to expand (or at least clarify) the ability of corporations to challenge intellectual property limitations and exceptions in so called investor-state dispute settlement (ISDS) tribunals. One source of that surprise came from my recollection of repeated meetings with USTR negotiators who assured me and others that ISDS forums were not intended to provide a means to challenge intellectual property limitations and exceptions.

I have one specific record of such a conversation to share. In September 2012, after the USTR released a fact sheet on new language for the TPP requiring balance” in copyright legislation, Peter Jaszi, Mike Carroll and I met with USTR negotiators. In an unusual twist for such meetings, the USTR attendees agreed that the meeting would not be off the record. So we took notes and sent a letter to then USTR Ron Kirk summarizing our understandings from the meeting.

At the meeting, we asked specifically about whether the investor-state dispute settlement (ISDS) chapter could provide a cause of action for private investors to challenge the fair use doctrine in general, or particular fair uses cases. The negotiators’ answer, as reflected in our letter to Kirk, stated:

It is not the intent of the United States that the Investor-State provisions of the TPP would apply to provide causes of action for investors through the intellectual property chapter that could be used to appeal to an international tribunal fair use or other interpretations of the U.S. Copyright Act by U.S. courts. Compliance with intellectual property obligations in international agreements has been a matter of state-to-state consultation and dispute resolution, and the United States does not intend to alter that process in the TPP.

<snip>


The TPP agreement would be the first free trade and investment treaty entered since the Eli Lilly case was filed under NAFTA. It thus provides an opportunity to cut off this line of reasoning by ISDS lawyers. But we now know that, at least of January of this year, the TPP’s investment language is worse than NAFTA on IP. It states:

<more at Professor Flynn's very informative blog InfoJustice>

http://infojustice.org/archives/34219

Hmmm. Whose word to give more weight? Someone who stands to benefit directly from the passage of the TPP or someone who is an expert in the field and has no financial stake in the outcome?

[Hoyt]

2. Excellent article, more proof it's not just big corporations privy to what's going on.

We'll see more and more of this as people speak up. The "this agreement COULD be the end times," bashing of Obama and corporations, playing politics for political gain, etc., will he replaced with sanity. The sooner the better.

[cali]

3. ....l.

You're the guy that thinks that a 6 year long ISDS case brought by a mining company, is no problem.

Now do continue with your fact free support of the tpp rooted in your love and trust of Daddy- er, I mean President Obama.

[Hoyt]

5. Yeah, me and every country that has signed a trade agreement and hopes to attract businesses to

their countries.

Why would virtually every country in the world sign 2500 similar agreements if they thought it's not worth the additional investment and jobs to their people?

Besides, you are the one who originally acted like these tribunals were some new mechanism for Obama and his corporate buddies to steal the world, until it finally sunk in that these tribunals have been around since at least 1959 and are run under the auspices of the United Nations and WTO.

Face it, Obama got you on this one.

[leveymg]

8. The WTO Trade Dispute Resolution Body is state-on-state. The TPP formalizes customary int'l law

and creates a body that will allow corporations, banks and other investors to sue governments (but not the other way around) to foreclose national laws and regulations that they don't like. It's another step forward toward unregulated global operations for multinationals. Is that a good thing?

[Hoyt]

9. Governments can sue businesses in their own courts, as has been the case for hundreds of years.

Last edited Tue May 12, 2015, 10:57 AM - Edit history (1)

Nothing in the TPP prevents that.

[leveymg]

12. No ability to counter-sue in the same forum is a definite liability in litigation

If you've never worked in the legal field and never litigated, you might not know that. If you have, shame on you for making a misleading point like that.

[Hoyt]

14. You posted as if countries have no recourse if a company violates their laws. That is not true.

The country can hall the company into their own courts and go after them.

As to the tribunals, if you are a legal eagle, you know that parties agree to binding arbitration all the time. That is exactly what the ISDS is.

The company usually picks on arbiter, the country another, and the two agree on the third. I don't see how it can be fairer than that, especially since the country agreed to the process when it signed the trade agreement, and the company accept the process when it invested in the country.

If a country doesn't want to abide by it, they can refuse to sign, and face the consequences -- shunning by investors and no foreign companies providing jobs like BMW, Volvo, Seimens, etc., with operations here.

[leveymg]

15. The defendant state has no recourse to countersue in the same forum, under the draft TPP

As for the real world track record of ISDS matters, this is from the UNCTAD Issues Note, No. 1, .pdf from the section describing the disputes actually brought to arbitration in 2013. The report shows the broad variety of state measures challenged. Do you really want to see corporations and banks gain more leverage over governments in these and related areas?

Challenged measures. Similar to previous years, investors challenged a broad
range of government measures. These include: changes related to investment
incentive schemes (at least 14 cases), cancellation or alleged breaches of contracts
by States (at least 10), alleged direct or de facto expropriation (at least 5), revocation
of licenses or permits, regulation of energy tariffs, allegedly wrongful criminal
prosecution, land zoning decisions, creation of a State monopoly in a previously
competitive sector, allegedly unfair tax assessments or penalties, invalidation of
patents, and legislation relating to sovereign bonds. The subject matter of several
disputes is unknown.

[Hoyt]

16. They don't need it, they can haul them into their own courts, which presumably will be

favorable to the state.

I don't think corporations or banks will have more leverage from what they've had for nearly 60 years.

Not to mention Obama and USTR are committed to improving the process.

Once again, any state, including the USA, can opt out of the trade agreement if they develop the unfounded fears expressed here.

[leveymg]

17. Obama and the USTR are committed to the TPP which will benefit US-based MNCs

which are the real constituency for this treaty. The whole point is less regulation and more ability to shift operations globally, which has been the general trend for 25 years since the WTO GATT and GATS were institutionalized. This extends those trends along with the impact of offshoring, in general.

The USA is unlikely to ever opt out of this once in place.

[Hoyt]

18. And when other countries sign, they all are saying the small risk under ISDS is worth it to

then and their people.

We'd be in a world of hurt without trade, and foreign plants/jobs like BMW, Volvo, Seimens, etc.

[leveymg]

21. Different states have different constituencies. The cost/benefits of this treaty vary. The threat

of erosion of sovereignty in investor-state disputes is different for Vietnam than it is for the United States, in the same way that the costs and benefits of various aspects of trade vary both internationally and within each country. For instance, the industrial base of US heavy industry -- steel, chemicals, automotive -- has been devastated by liberalization of trade in goods regimes during the past several decades. This is offset to a lesser degree by continued (but much reduced) dominance in Trade in Services by US-based multinationals in finance, technology and aerospace, some of which will undoubtedly greatly benefit from further services trade liberalization as will those states, such as India and China, that successfully compete in sectors such as IT. The TPP will likely have the effect of continuing these overall trends in trade.

The costs and benefits of trade in various sectors is a separate issue, however, from the threat of loss of sovereignty in the area of national legislation and the ability of US courts to uphold protections for the environment, labor and human rights. The expansion and institutionalization of ISDS investor protections in the draft treaty is simply unacceptable, and the TPP needs to be redrafted to address that threat.

[MFrohike]

40. Yeesh

On what basis could the country sue the company? The purpose of the ISDS is to recover lost or potentially lost profits. It makes no sense at all to claim the country could sue in that situation.

Binding arbitration is a different beast from the ISDS format. After all, one always has the right to appeal to a superior tribunal in arbitration, though that right may be limited. There is no such right in this format. There is no superior tribunal. That alone rips the heart out of your comparison. Should there be collusion between the arbitrators and one of the parties, there is literally no recourse for the other party. The purpose of the ISDS is to get around American courts' extreme dislike of trying to prove damages that are either speculative or are based on the legitimate exercise of power by the state.

You should ask Australia how well they're faring in the ISDS system. They're busy defending a suit of this type against Philip Morris over anti-smoking laws. That's the sort of thing this treaty is really designed to do. Hell, if you've ever read a tariff table, you'd know that traditional barriers to trade are nearly non-existent. All that's left is the traditional, legitimate functions of government. You know, what they call "non-tariff barriers."

[Hoyt]

42. Philip Morris has gotten nowhere in Australia. Australian packaging laws are still in effect.

A country can sue a manufacturer for violating its laws.

We are not talking tariffs, we are talking other trade barriers.

Most importantly, the countries can avoid the whole ISDS process if it is so onerous, just don't sign the agreement and drop out of any other trade agreements. But they don't because the risk and costs are low compared to the potential gain in investment, taxes, jobs, etc.

[MFrohike]

43. Again, you make no sense

The mere fact that Philip Morris can sue Australia over the legitimate exercise of government power in a private sector, extra-legal tribunal is offensive. Australia is an advanced country with a respected judicial system. Philip Morris could fully expect a fair hearing in such a system. Why do they need another venue?

Yeah, I know about other trade barriers. Why else did I mention non-tariff barriers? The point of referring to tariffs was to make the point that this treaty, and its twin for the EU, is an attack on national, provincial, and local governments' ability to exercise their power.

The potential gain from this treaty is pretty hard to nail down. I can't find an estimate from Froman. The Peterson Institute, shills that they are, declare it will be worth over $200B per year for the US in 2025. Of course, they're also busy telling us that Social Security is going bankrupt, so forgive me if I take that estimate with a ton of salt. CEPR, an actual liberal think tank, estimates the gains from the TPP as being worth 0.13% of GDP by 2025. It also estimates that wages will decline as a result for all but the top 10%. Given that Dean Baker is part of CEPR and that he's one of the very few economists who wasn't totally blind to the housing bubble, I'm more inclined to take their estimate. Even if Pete Peterson's minions are right, we're still talking about something like 1% of GDP in 2025. That seems like a pretty paltry gain for giving up the ability to effectively legislate without having to pay a tax to our corporate overlords.

Hell, I didn't even mention the fact that the administration gave tacit approval to Abe to try to amend the constitution to allow offensive action. I'm sure the idea of a re-militarized Japan, led by the grandson of a bona-fide war criminal, will be seen as a foreign policy masterstroke by the entirety of East Asia.

[Hoyt]

44. I disagree, and fact Australia is ready to sign another agreement with similar tribunals indicates

they disagree with you too.

[MFrohike]

45. Heh

Yes, their far-right, climate change denying government is ready to sign. If that's not an endorsement, I don't know what is!

[PosterChild]

24. Thanks for the post!

[Jesus Malverde]

4. You missed this quote when you went cherry picking...

“Yeah, we’re going to lose some jobs potentially, but that’s going to happen whether we trade or not.”

[djean111]

6. And - it looks like the TPP has more corporate protections than it does actual trade agreements.

The trade part is what is getting talked up. Of the 29 chapters, ONLY 5 DEAL WITH TRADE.
The rest are corporate giveaways. The desperation to get the corporate stuff passed with the trade stuff is palpable.

http://www.exposethetpp.org/TPPImpactsYou.html

[bananas]

7. Like the "confidential briefings" congress received to convince them to invade Iraq

Compartmentalized information which can't be verified can be manipulated to misinform the people receiving the briefing.

[RiverLover]

10. The "insider" also said “I’m not going to lie to you. I don’t know what the hell is in the TPP, and

“I’m not going to lie to you. I don’t know what the hell is in the TPP, and I don’t know if anyone else knows what the hell’s in the TPP,” Sokol Blosser said. “But I’m making a leap of faith that it’s going to be good.”

[Oilwellian]

22. LOL...well I guess there is THAT. n/t

[PosterChild]

25. Of course not...

... he isn't a member of Congress and the pact isn't finished. The full final pact will be voted on by Congress once its done.

[madfloridian]

32. Thanks for that quote. Makes a big difference.

[LWolf]

11. Obama went to Oregon to push Congress on trade agreements

and was met, in the state that overwhelmingly supported him in '08, by Oregonians sending him this message:





http://video-embed.oregonlive.com/services/player/bcpid1949055967001?bctid=4225860536001&bckey=AQ~~,AAAAPLpuSqE~,a1DdoZJH5WQo4iWaJj1w_CktvJfhQVVG

[TheKentuckian]

13. Inside what? He knows jack apple shit.

[PosterChild]

26. He is..

He is on a federal advisory committee on agricultural trade and has received confidential briefings on the negotiations.

[TheKentuckian]

36. Per him, he doesn't shit. Direct quote follows.

“I’m not going to lie to you. I don’t know what the hell is in the TPP, and I don’t know if anyone else knows what the hell’s in the TPP,” Sokol Blosser said. “But I’m making a leap of faith that it’s going to be good.”

Right from the posted article. Stop trying to call cups of hot piss ice cold lemonade.

[Marr]

19. Funny-- I remember reading articles exactly like this one when NAFTA was being pushed.

Same Normal Rockwell imagery (the hazlenut trees were a nice touch), same statements about corporate-dominated free trade being inevitable, same framing of labor as reflexive, unthinking obstructionists.

[Oilwellian]

23. The propaganda machine is up and running n/t

[okaawhatever]

20. K & R nt

[99Forever]

27. Cool story, bro.

[PosterChild]

30. And TRUE too! How cool is that? /nt/

[99Forever]

31. Of course it is

[PosterChild]

33. Without a doubt and...

...not a trace of irony!

[99Forever]

34. Or honesty.

[PosterChild]

35. Honestly speaking...

...http://www.democraticunderground.com/10026663151

[Binkie The Clown]

28. "This is really going to help you." "What's really going to help me."

"This thing I can't tell you about or show you or let your read. But trust me, it's really going to help you."

It's like having a salesman knock on your front door and tell you that you should buy his product, but he won't tell you what the product is, or how much it will cost you until after you sign the purchase agreement. Politicians must really think we are stupid to fall for that, especially after NAFTA.

[PosterChild]

29. The artcle provides some insight into this...

“You can’t negotiate something as complex as this in public,” he said.

The reason is that a complex multinational agreement requires many different trade offs and compromises. We seek what is good for us, they seek what is good for them. The whole package must be on average good for all, but any one provision, in issolation, that may be good for us will be viewed as bad by them, and what, in issolation, may be good for them will be viewed as bad by us. It's only by putting them together that you get a deal that can be considered good by all.

When the various provisions are discussed piecmeal and in public, judgements are made on issolated provisions without understanding how they might fit into an overall agreement. Opportunities to understand what they are interested in, to explore various possibilities, and to experiment with new combinations are lost. Opportunities are lost- to all sides. Progress is stalled, stasis sets in, and then regression.

So the best strategy is to proceed with a level of cofidentiality, bring in experts and representatives of various interests as needed, and then provide a complete package for examimation, debate, and an up or down vote.

This is, by the way, the way the Iran nuclear treaty is being pursued. It's the only way such agreement can be acomplished.

[Binkie The Clown]

38. That makes sense, but...

after NAFTA I really don't trust that politicians EVER have our best interests at heart.

[GeorgeGist]

37. What a maroon.

[Cha]

41. Who? you?

[brentspeak]

39. About as credible as Saddam and the incubator babies n/t