Does The Fast Track Authority Bill Guarantee That Corporate Sovereignty Will Be One-Sided And Unfair?
from the important-questions dept
Yesterday, Mike reported on the introduction of the “fast track authority” bill in the Senate, and pointed out some of its most troubling aspects. But it’s a long document — over 100 pages — and hidden away within it are some other areas that raise important questions. Take, for example, Section 8, which concerns sovereignty:
No provision of any trade agreement entered into under section 3(b), nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States, any State of the United States, or any locality of the United States shall have effect.
Writing on the International Economic Law and Policy Blog, Simon Lester, a trade-policy analyst at the Cato Institute, asks:
Is this an assertion that no provision will be included in a trade agreement if such provision conflicts with U.S. law? Or does it mean that if there is a provision in a trade agreement that conflicts with U.S. law, that provision has no effect? Or something else entirely?
In the same section of the bill, there’s another passage whose meaning is by no means clear:
Reports, including findings and recommendations, issued by dispute settlement panels convened pursuant to any trade agreement entered into under section 3(b) shall have no binding effect on the law of the United States, the Government of the United States, or the law or government of any State or locality of the United States.
Again, does that mean the rulings of corporate sovereignty (ISDS) tribunals won’t be enforceable in the US, or simply that they don’t create legal precedents? It’s a crucially-important point, because the terms of this fast track authority will apply not only to TPP, but also to TAFTA/TTIP. And there, the European Commission has been making the following argument about the necessity of including ISDS in the transatlantic agreement (as reported by Australia’s Inside Story):
The problem with scrapping ISDSs, according to the Commission, is that the US legal system is not set up to deal with international investment agreements. “Quite simply, TTIP cannot be enforced in US domestic courts,” [European Commission spokesperson] Clancy says. “So, this is about ensuring [that] investors have the right to a certain amount of protection.”
If the fast track authority clause quoted above does, indeed, undercut the entire ISDS mechanism, then foreign investors would be unable to enforce TTIP’s investment measures according to the European Commission’s analysis. However, assuming that’s not the meaning of the bill, there’s another problem. Among the “principal trade objectives” listed at the start of in the fast track authority bill, is “foreign investment”, where we read:
Recognizing that United States law on the whole provides a high level of protection for investment, consistent with or greater than the level required by international law, the principal negotiating objectives of the United States regarding foreign investment are to reduce or eliminate artificial or trade distorting barriers to foreign investment, while ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States, and to secure for investors important rights comparable to those that would be available under United States legal principles and practice
It’s interesting to note that the bill explicitly recognizes that US law provides “a high level of protection for investment”, which naturally calls into question the supposed “need” for any extra corporate sovereignty in the form of ISDS. But more importantly, the fast track authority bill states that trade agreements must ensure that:
foreign investors in the United States are not accorded greater substantive rights with respect to investment
And yet that is precisely what ISDS in TAFTA/TTIP or TPP would do: in addition to the use of domestic courts in the US, foreign investors would have the option to take the US to independent corporate sovereignty tribunals. However, that would not possible for US investors in the US, since ISDS only applies to foreign investment.
So we are left with two possibilities. Either the fast track authority aims to nullify the ISDS chapter in TPP and TAFTA/TTIP by rendering tribunal rulings impossible to enforce, or it will allow foreign investors to use ISDS tribunals to obtain enforceable decisions, in which case they will have greater substantive rights than US investors. Either way, one side of the negotiations is going to get a really bad deal from the inclusion of corporate sovereignty provisions. That’s yet another powerful reason to drop them entirely from both TPP and TAFTA/TTIP.