Is Bernie's Trade Policy More Extreme Then Trump's? Yes.

[OrwellwasRight]

29. Wow -- try reading...

A) No trade panel can automatically change any US or other county's laws. And no one who knows what they are talking about would claim that it could. So your big "defense" against ISDS is a red herring. What trade panels CAN and DO do, is force a government to either pay a penalty to a foreign company in the case of ISDS or face tariffs in the case of the WTO. The US has changed its law a number of times due to trade panel decisions, primarily at the WTO, and including while Obama was president.

Examples:

Country of Origin Labeling (the US repealed its law): https://www.forbes.com/sites/nancyhuehnergarth/2015/12/21/quashing-consumers-right-to-know-congress-repeals-country-of-origin-labeling-for-beef-and-pork/#3084913b36e5 (note that the article is from Forbes, a pro-business magazine)

Dolphin-safe tuna labeling (the article explains that the US changes tuna labeling regulations at least twice to respond to WTO cases -- this dispute has a longer history and additional amendments, but I'm not going to do all your homework for you): https://www.npr.org/sections/thetwo-way/2017/04/26/525701964/wto-says-mexico-can-seek-millions-from-u-s-in-dolphin-safe-tuna-dispute

B) Unlike at the WTO, where sovereign governments bring and defend cases, under ISDS, only private investors (people or corporations) can bring cases and sovereign governments can only be defendants. ISDS does not in fact cover trade disputes. It covers "investment disputes" which are different. Claims can include a traditional direct expropriation claim (like the Fifth Amendment, which is weird because foreign firms can already sue for such claims in federal and state courts), but they can also include indirect expropriation claims, wherein an investor claims that a law or regulation is "tantamount to" an expropriation, and claims that an investor was not treated with a "minimum standard of treatment", a vague standard that has been used to blackmail many developing countries to undo their laws, undo criminal convictions, and withdraw environmental regulations. ISDS is bad. You can believe the propaganda for it, or you can do some research and find out what it really is and why it is such a bad idea.

Here are some places to start:

William Greider in The Nation, explaining all the way back in 2001 how ISDS is an extension of the right-wing concept of regulatory takings: https://www.thenation.com/article/right-and-us-trade-law-invalidating-20th-century/

Transnational Institute, a seminal 2012 report detailing how a small group of international lawyers both representative parties and act as "neutral" arbitrators in ISDS arbitrations, thereby both creating international investment law and then representing clients who seek to profit from the new rules: https://www.tni.org/en/briefing/profiting-injustice

The Four-Part BuzzFeed series by Chris Hamby that was a finalist for the 2017 Pulitzer Prize in international reporting that focused on four aspects of ISDS:

-how it helps executives convicted of crimes escape punishment
-how just a threat of an ISDS case can intimidate countries, especially developing countries, into caving in and giving corporations what they want
-how big banks take advantage of the ISDS system; and
-how the US almost lost a case and freaked out all those who support the system

Here is a link to part one of the series: https://www.buzzfeed.com/chrishamby/super-court
Here is a link to the Pulitzer nomination: https://www.pulitzer.org/finalists/chris-hamby-buzzfeed-news

Here is Nobel Prize winner Joseph Stigliz saying ISDS is bad idea for developing countries): https://www.theguardian.com/business/2013/nov/08/trade-agreements-developing-countries-joseph-stiglitz (it's so ironic how those who label labor unions "anti-development" when they challenge the pro-corporate trade rules, fail to mention how the shitty ISDS, drug exclusivity guarantees, and failure to enforce labor provisions are extremely anti-development; they also fail to mention that the labor unions of Australia, New Zealand, Peru, Mexico, the United States, Canada, and Malaysia--a mix of developed and developing countries--all united to challenge the TPP)

Here is a law review article explaining the difference between investor rules and enforcement mechanism and labor rules and enforcement mechanisms in US trade deals and questioning why investors get such favorable treatment: https://www.academia.edu/38011167/DISPARATE_TREATMENT_FOR_PROPERTY_AND_LABOR_RIGHTS_IN_U.S._TRADE_AGREEMENTS

Here is a chart showing how the number of ISDS has exploded in the last decade, which implies the US winning streak is unlikely to last: https://investmentpolicy.unctad.org/news/hub/1611/20190528-fact-sheet-surge-in-isds-cases-continues-in-2018

Although, as UNCTAD data show, most cases are brought by investors from developed countries against developing countries (challenging environmental protections is not pro-development), developed countries lose their fair share too, proving that the cases are not about countries that have unreliable justice systems.

Among the top 10 most sued countries are Canada, Spain, and the Czech Republic. https://investmentpolicy.unctad.org/investment-dispute-settlement
US firms have brought the greatest number of cases (174), with "Dutch" companies (which are usually not Dutch but simply get a PO Box there to take advantage of Dutch investment treaties) a distant second with 108 cases.

The following countries have either never approved an ISDS treaty or have renounced ISDS treaties they have been a part of: South Africa, Namibia, Tanzania, Ecuador, Venezuela, Bolivia, Angola, Botswana, Comoros, DR Congo, Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Seychelles, Zambia, Zimbabwe (in other words, the SADC countries) https://www.tralac.org/blog/article/13787-investor-state-dispute-settlement-in-africa-and-the-afcfta-investment-protocol.html

In addition, New Zealand says it won't approve ISDS in the future: http://afia.asia/2018/01/nz-renounces-isds-deja-vu/

In 2011, Australia's Productivity Commission recommended that Australia "seek to avoid" ISDS in future trade deals: https://www.abc.net.au/radionational/programs/backgroundbriefing/isds-the-devil-in-the-trade-deal/6634538

Finally, is a piece explaining that it cost Australia millions of dollars to successfully defend its tobacco regulations against Philip Morris under ISDS, so even when countries when, they lose: http://theconversation.com/when-even-winning-is-losing-the-surprising-cost-of-defeating-philip-morris-over-plain-packaging-114279


So, I'm not sure why your only concern about ISDS is whether the US has ever lost a case. There are bigger issues here. But I guess alll these countries, authors, and respected thinkers--even those who wrote and acted before she entered the Senate--fell for Senator Warren's fearmongering? Huh. Weird.