TPP's Corporate Sovereignty Chapter A 'Threat To Democracy And Regulation'

from the wrong-direction dept

When the negotiations for the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada were concluded in September 2014, the text was finally released after years of secrecy. At the time, the Canadian Centre for Policy Alternatives put together what remains the best overall analysis of the main text’s 1598 pages, in a series of studies collectively called “Making Sense of CETA.” The same organization has now published a set of analyses looking at key aspects of TPP, entitled “What?s the big deal? Understanding the Trans-Pacific Partnership“.

They are all worth looking at, but Techdirt readers will probably be particularly interested in one called “Foreign investor protections in the Trans-Pacific Partnership.” It’s by Gus Van Harten, a professor at Osgoode Hall Law School of York University in Toronto, Canada, and a well-known commentator on trade law and policy. The first part of his analysis provides a good summary of the world of corporate sovereignty, or investor-state dispute settlement (ISDS) as it is more formally known. The later section looks at some new research that provides additional insight into just how bad corporate sovereignty is for those of us who are not insanely rich.

For example, Van Harten quotes some recent work showing that 90% of ISDS fines against countries went to corporations with over $1 billion in annual revenue or to individuals with over $100 million in net wealth. Similarly, the success rate among the largest multinationals — those with turnovers of at least $10 billion — was 71% in the 48 cases they initiated, compared with a success rate for everyone else of 42%. So any claim that ISDS is equally useful to all companies, including small and medium-sized businesses, is not borne out by the facts.

Van Harten also mentions some interesting figures for the financial winners and losers across all known corporate sovereignty cases. The largest corporations ended up with gains of around $6 billion; the thriving ISDS legal industry took home $2 billion; very wealthy individuals received around $1 billion; and large companies picked up another $500 million. As for the countries that were sued by these groups, their losses totaled some $10 billion. That’s an important reminder that nations cannot win ISDS cases: the best they can ever hope for is not to lose. And they often do lose, as the high cumulative fines indicate.

Another fascinating insight comes from looking at the percentage of foreign-owned assets (that is, inward foreign direct investment) in the US economy that are covered by ISDS in trade and investment agreements. Currently, it is only around 10%, which is probably why corporate sovereignty is not a big deal for the US public today. If TPP is ratified, another 10% of foreign investments will be covered. But if the TAFTA/TTIP deal with the EU goes through, it would add another 60% to the total — a huge jump. That would mean that TPP and TTIP together would make nearly all foreign investments in the US subject to corporate sovereignty.

Van Harten highlights another key aspect of TPP that has not received much attention. He points out that TPP goes beyond the older North American Free Trade Agreement (NAFTA), which is between the US, Canada and Mexico, but does not solve its serious problems, despite claims to the contrary:

anything that is apparently better in the TPP compared to NAFTA will very likely be lost in practice because a U.S. investor can bring a claim under NAFTA instead of the TPP. Also, anything worse in the TPP would not be displaced by NAFTA because a foreign investor could choose to bring a claim under the TPP. If a foreign investor was unsure which agreement offered the best chance to win compensation, it could bring a claim under the TPP and NAFTA, making a different argument under each and getting compensation if it won under either.

In other words, TPP has been written in such a way that the public always gets the worst of both worlds. Van Harten’s chilling summary of the corporate sovereignty provisions in TPP is worth quoting in full:

The TPP would take us in the wrong direction and be very difficult to reverse. It would expand the transfer of power to ISDS arbitrators from legislatures, governments, and courts. The arbitrators would not be accountable like a legislature. They would not be capable of regulating like a government. They would not be independent or fair like a court.

At the core of the TPP’s threat to democracy and regulation is the uncertain and potentially huge price tag that its ISDS process would put on any law or regulation that is opposed by a large multinational company or a billionaire investor. The problem is not that foreign investors would be too big to fail; it is that the TPP would make the biggest and richest ones too risky to regulate.

The TPP was an opportunity for countries to step back from and reform the flawed system of foreign investor rights and ISDS. Instead, the TPP would expand the system massively. That decision is reason enough to reject the TPP in order to protect the established institutions of democracy, sovereignty, and the rule of law in TPP countries.

Anyone who has any lingering illusions that it might be worth signing up to TPP should read this new analysis, which will dispel them rapidly.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

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Comments on “TPP's Corporate Sovereignty Chapter A 'Threat To Democracy And Regulation'”

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Anonymous Coward says:

Re: the people doing it are thus TRAITORS

Says you.

Since 9/11 every sitting president has been nothing but a traitor to the Constitution. I see no actual concern from the average American.

As long as each congress critter uses their corruption to get their locals want they want, they will keep them in power. None of the others will do or say anything because they all know they are there for the corruption, their OWN slice of the pie.

We will continue like this until it all breaks apart and nothing indicates that this is going to stop any time soon. In fact history shows the only stopping point is when the citizens rebel.

The new motto,

Ask not what you can do for America, ask what IT can do for you.

Every nation gets the government it deserves

~Joseph de Maistre

America continual slide into socialism, leftism, and multiculturalism is turning us into Europe and they are facing more problems than we are. Why are we following in their obviously bankrupt foot steps?

I think we happen to like our traitors, since we prop them up every chance we get.

Anonymous Coward says:

Re: Re: Re: the people doing it are thus TRAITORS

You seem to be one of those right leaning types that thinks they know it all while everyone else is wrong because they do not agree with everything you say.

Check the mirror, this can be said right back at you.

Victim blaming? No, just the truth. In the same way you think people are trash if they stand around watching a woman get raped while doing nothing to stop it, you are also trash for helping keep the government corrupt by doing nothing.

Every time we vote in a person that is owned by a party we are to blame. Every time we fail to march against the police when they murder citizens or abuse their authority, we are to blame. Every time you shirk jury duty instead of serving and ensuring the government corruption is not claiming another citizen, YOU ARE TO BLAME!

Your inability to accept fault is far more of a problem than my accusation. Just like in AA, you have to first realize you have a problem, because you can figure out how to fix it!

We are not a people, we are a disconnected group of leftists, righties, repukes, demtards, commies, neo-cunts, and all around bigoted, racist, hypocrites calling each other the same. And the people that deny this the most are usually the most hateful and bigoted of all. Just exactly what George Washington predicted we would become if we kept referring to everyone according to their geography or social or political ideology, like you JUST DID to me!

de Maistre was right!

We are the traitors, not the people we vote into office!

That One Guy (profile) says:

But wait, it gets worse

The biggest problem for any opposition to such ‘trade’ deals is the fact that the people writing them and voting for them aren’t the ones who will be paying if they go through, meaning the most exhaustive and comprehensive research into potential/likely downsides aren’t really going to have any impact on it’s own.

What does a lobbyist care if a corporate sovereignty provision costs a country a couple billion, and/or results in serious harm to the citizens thanks to the government being too wary to regulate companies appropriately in order to protect the public for fear of being sued in a totally one-sided ‘court’, all they care about is the fat bonus they get from getting the thing passed.

Similarly what does a politician care about the damage from ‘trade’ agreements like this, it’s not like they are going to be paying any of the costs resulting from it, but they very well might reap the rewards from companies showing their ‘appreciation’ to politicians willing to vote in their favor, whether in the form of ‘donations’ or lavish ‘retirement offers’ once they leave office.

Such agreements are toxic for numerous reasons and deserve to be shot down entirely because of that, but it’s important always to remember that it’s very much an uphill battle to do so because the ones most involved in the process stand to gain much from the passage of such agreements while suffering no personal risk themselves no matter how bad the things are.

If the various ‘trade’ agreements are going to be shot down it’s going to take some hefty pushback by the public, potentially at the SOPA/ACTA mass-protest level, and while I would hope it doesn’t reach the point where that’s what it takes to get the politicians to listen to the public it would still better than the alternative.

One in a million says:

Re: But wait, it gets worse

If the various ‘trade’ agreements are going to be shot down it’s going to take some hefty pushback by the public, potentially at the SOPA/ACTA mass-protest level..

Million Man Mulch. Can you imagine if more than a million people showed up on the steps of the lawmakers in their DC domain with a 50 lb bag of mulch and dumped it? Thats a lot of mulch. Maybe they’d listen to that!

Skeeter says:

Who's the Traitor?

Let us not overlook who the final, absolute fool is in TPP and all of the rest of the insane corporate-favored laws that have happened in the past 20-years, THE UNINFORMED CITIZEN.

When you have 51-percent of the population unable to qualify for a job at a fast-food joint; the same who happen to be the uneducated majority that cannot write in cursive, cannot read at a 12th grade level, and cannot conduct an intelligent conversation; how can you feign incredulity at a nation giving itself away to private interests at the citizens’ expense?

The population of America, of most nations, aren’t intelligent enough, invested enough, aware enough to comprehend what is going on. As a result, they are now so ignorantly confused, that they have become the sheep voting for their own preferred method of execution, just as long as it looks like how they do it on ‘reality TV’.

David says:

Re: Who's the Traitor?

When you have 51-percent of the population unable to qualify for a job at a fast-food joint; the same who happen to be the uneducated majority that cannot write in cursive, cannot read at a 12th grade level, and cannot conduct an intelligent conversation; how can you feign incredulity at a nation giving itself away to private interests at the citizens’ expense?

Because better access to education should also imply better access to moral education. Particularly in secular forms of government you cannot smile upon grab-as-grab-can morals that in some manner constitute the basis for quasi-religious capitalism and Calvinism.

That’s the whole point of a representative democracy: if the specialists cannot be depended on doing the right thing for the benefit of their constituents, the system produces worse results than mob rule.

Anonymous Coward says:

Re: Re: Who's the Traitor?

The failure is the parents that decided it was a good idea to let a foolish institution teach their kids morals and values.

Sorry, but the OP is essentially correct, they just may have their reasons a bit mixed up.

America is founded upon individual liberty, and right now, we are doing everything we can to remove it. Everyone needs to conform to the group, your uniqueness is actually unwelcome unless it fits into our predefined & approved list of acceptable uniquenesses.

Everyone wants society to conform to their rules. Each one that calls the other a bigot has become a bigot themselves. For you must first become intolerant of another opinions to call them a bigot in the first place!

That One Guy (profile) says:

Re: Re: Re: You are entitled to your own opinion. You are not however entitled to respect or tolerance of your opinion.

Everyone wants society to conform to their rules. Each one that calls the other a bigot has become a bigot themselves. For you must first become intolerant of another opinions to call them a bigot in the first place!

Umm, no. If I call a member of the KKK a bigot for thinking and acting upon the belief in statements and actions that anyone not white is somehow ‘lesser’, my ‘intolerance of their opinion’ does not make me equally a bigot.

Everyone is entitled to their own personal opinions but all opinions are not created equally, and do not deserve equal respect or ‘tolerance’. People can believe whatever they want but as soon as they share that belief and make it public others are absolutely free to accept or reject it, they are not owed respect and/or tolerance, and refusing to give it does not a bigot make.

Anonymous Coward says:

I am curious is there anything preventing the judge and jury from also being corporations that have used the system to sue countries for damages?

What if they just take turns being the “neutral abritrators” that decide if the case is won or lost? ! big circle jerk as it were, where they loot each country of its wealth fro themselves.

Whatever says:

It would be a better story if one of the main sources of material wasn’t the CCPA. Around these parts, they are considered pretty left of left, anti-business and anti-government on pretty much every level. There is little doubt that in 1500+ pages they could find plenty of things to outrage their extreme left views.

Old Shoe says:

Reminiscing Steely Dan

This TPP is starting to remind me of something from a long time ago when Steely Dan released their brilliant album, Royal Scam. The towering buildings with the gargoyles stretching down to attack the man sleeping on the park bench with the holes in the soles of his shoes is what we are talking here. We have known for a very long time these monsters were going to show their teeth. For more than five decades they have been paving the roads that will get them the world domination that they just gotta have. Here’s a toast to Steely Dan! Thanks guys!

Justme says:

May be simple minded...

Money is the root of all evil, Government that serves the rich and powerful and marginalizes anyone harmed by their self-serving greed.

Which resuls in things like:
Government granted monopolies for new drugs which drain massive amount of money from medicare/medicaid and sharply increase insurance premiums.

The new hepatitis drug: Sovaldi cost around 80,000 for a full coarse. There are an estimated 3.2 million people in the us that have treatable hepatitis.

Total Cost: 256 Billion

That’s all paid in taxes and insurance premiums by every American. And that just one of many examples.

Political response: (Victim Blaming)
Blame medicare/medicaid for being wasteful and filled with to many people just look for a free lunch.

TPP is all about ensuring companies the right to continue these practices everywhere and nothing about helping the average citizen.

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