Is America About To Experience The Billion-Dollar Pain Of Corporate Sovereignty First Hand?
from the not-your-parents'-ISDS dept
Readers of Techdirt have been hearing about corporate sovereignty — the ability of foreign investors to sue governments directly in special courts over alleged losses, also known as Investor-State Dispute Settlement (ISDS) — for a while now. For others who have yet to discover this particular feature of so-called trade agreements, Senator Elizabeth Warren has a good, approachable summary of the key issues in a Washington Post opinion piece. In fact, it was clearly so good that the White House Blog felt obliged to try to rebut its main arguments (there’s also a great point-by-point response to that response by the Cato Institute’s Simon Lester.). The White House Blogt post, written by Jeff Zients, Director of the National Economic Council, pretty much concedes that the criticisms of ISDS are valid, but would have us believe that everything has been fixed now:
ISDS has come under criticism because of some legitimate complaints about poorly written agreements. The U.S. shares some of those concerns, and agrees with the need for new, higher standards, stronger safeguards and better transparency provisions. Through TPP and other agreements, that is exactly what we are putting in place.
There are two massive problems with that assurance. First, the extreme secrecy of the TPP negotiations means that we have no idea just how strong those “safeguards” are. And secondly, in some sense it doesn’t even matter: companies can use the mere threat of an ISDS action to cast a chill over future regulatory action. That’s why the following comment is true but misses the point:
The reality is that ISDS does not and cannot require countries to change any law or regulation.
The ability to use ISDS to discourage governments from introducing inconvenient laws or regulations is no mere theoretical fear. As this important 2001 article in The Nation explains:
Carla Hills, the US Trade Representative who oversaw the NAFTA negotiations for Bush I and now heads her own trade-consulting firm, was among the very first to play this game of bump-and-run intimidation. Her corporate clients include big tobacco — R.J. Reynolds and Philip Morris. Sixteen months after leaving office, Hills dispatched Julius Katz, her former chief deputy at USTR, to warn Ottawa to back off its proposed law to require plain packaging for cigarettes. If it didn’t, Katz said, Canada would have to compensate his clients under NAFTA and the new legal doctrine he and Hills had helped create [ISDS]. “No US multinational tobacco manufacturer or its lobbyists are going to dictate health policy in this country,” the Canadian health minister vowed. Canada backed off, nevertheless.
Nor was that an isolated incident:
A former government official in Ottawa told me: “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law.Virtually all of the new initiatives were targeted and most of them never saw the light of day.”
Zients goes on to say that corporate sovereignty chapters are needed because foreign courts can’t be trusted to provide justice:
U.S. investors often face a heightened risk of bias or discrimination when abroad.
But Warren already answered that with several extremely powerful points:
Countries in the TPP are hardly emerging economies with weak legal systems. Australia and Japan have well-developed, well-respected legal systems, and multinational corporations navigate those systems every day, but ISDS would preempt their courts too. And to the extent there are countries that are riskier politically, market competition can solve the problem. Countries that respect property rights and the rule of law ? such as the United States ? should be more competitive, and if a company wants to invest in a country with a weak legal system, then it should buy political-risk insurance.
Zients also tries to argue that since the US hasn’t suffered as a result of ISDS cases in the past, it’ll be fine in the future:
There have only been 13 cases brought to judgment against the United States in the three decades since we?ve been party to these agreements. By contrast, during the same period of time in our domestic system, individual and companies have brought hundreds of thousands of challenges against Federal, state, and local governments in U.S. courts under U.S. law.
We have never lost an ISDS case because of the strong safeguards in the U.S. approach. And because we have continued to raise standards through each agreement, in recent years we have seen a drop in ISDS claims, despite increased levels of investment.
But that line of reasoning ignores why there have been so few cases in the past: because corporate sovereignty provisions were mainly included to protect US investments in developing countries with weaker legal systems. By definition, such nations are unlikely to have the resources to make many or significant investments in the US, and therefore have few opportunities to use the ISDS system. That is what will change dramatically with TAFTA/TTIP, as this analysis by Public Citizen explains:
TAFTA would vastly expand the investor-state threat, given the thousands of corporations doing business in both the United States and EU that would be newly empowered to attack public interest policies. More than 3,400 EU parent corporations own more than 24,200 subsidiaries in the United States, any one of which could provide the basis for an investor-state claim. This exposure to investor-state attacks far exceeds that associated with all other U.S. “free trade” agreement partners.
In fact, the US may be about to find out about the modern reality of billion-dollar corporate sovereignty lawsuits, thanks to the 21-year-old NAFTA agreement, and the controversial Keystone XL project, which President Obama recently vetoed. Here’s Politico’s explanation of how corporate sovereignty could enter the equation:
President Barack Obama may decide to kill Keystone XL for good, but that could be no easy task — thanks in part to the North American Free Trade Agreement.
The 21-year-old free-trade pact allows foreign companies or governments to haul the U.S. in front of an international tribunal to face accusations of putting their investments at risk through regulations or other decisions. The CEO of Keystone developer TransCanada has raised the prospect as a potential last resort if Obama rejects the $8 billion project, although for now the company is focused on getting him to say yes.
Administration officials involved in reviewing the proposed Canada-to-Texas pipeline are aware of the potential for a NAFTA challenge and the importance of minimizing that risk in the event the president rejects Keystone.
So even though the President retains full powers to reject Keystone, it?s easy to see how the threat of a billion-dollar ISDS lawsuit might encourage him to approve it anyway. That would offer the perfect demonstration of how corporate sovereignty chapters can interfere with democratic decision-making — at even the highest levels.
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Filed Under: corporate sovereignty, elizabeth warren, isds, jeff zients, lawsuits, tafta, tpp, trade agreements, ttip, ustr
Comments on “Is America About To Experience The Billion-Dollar Pain Of Corporate Sovereignty First Hand?”
I can't believe there is a discussion
What kind of brainwashing is going on that this is even worth discussing at any political level?
Overriding local laws and decision-making is not some undesirable side effect of those regulations. It is their whole point.
It’s like reevaluating airstrikes because there is evidence that they cause property damage and kill people.
This kind of discussion amounts to “uh, let’s reevaluate ISDS rules since surprisingly there is evidence that they have the intended and advertised effect”. Why would we be even having them if they didn’t?
Re: I can't believe there is a discussion
Yeah but the pro-ISDS crowd isn’t going to frame it as such.
Re: Re: I can't believe there is a discussion
No, they frame it as a corporate rights thing, the idea being that corporations are people, my friend, and government is eeevilll, or something.
Re: I can't believe there is a discussion
If by “intended effect” you mean “intended by corporate lobbists, then you’re right.
ISDS originally intended as a compromise by developing countries to attract investors to their country. It is in no way beneficial to the country directly, because practically it is relinquishes part of it’s sovereignity for foreign investors.
This shit got out of hand when corporations started to sue for lost expected profits and intellectual property.
Re: Re: I can't believe there is a discussion
What else would they be suing for? Lost unexpected profits? Good luck with that. Lost actual profits? How can a profit be both lost and actual at the same time? It is one or the other.
Again, this is not the “shit getting out of hand”. It is the shit working exactly like it is supposed to work. It couldn’t possibly work any other way.
Re: Re: Re: I can't believe there is a discussion
No, it is getting out of hand.
“Lost Expected Profits?” So by your logic if my product or service is not selling then CLEARLY it’s not because of my company the infallible human being it is no it’s the country I’m doing business in so therefore they’re clearly undermining my expected profits so I’ll sue them in an international court.
That’s how it works and if a country has laws that say actually protect it’s citizens like public health laws regarding smoking then it’s company that has to change to fit that nation’s laws not the other way around. You can watch Jamie Oliver’s “Last Week Tonight” segment on Tabacco for a good example of what they do to nations who won’t play ball.
Re: Re: Re:2 I can't believe there is a discussion
You really don’t get it? It’s not my logic but the way ISDS are defined to work.
They are not “getting out of hand” when companies sue for lost expected profits. They are working as intended. Because there is no other mechanism for making them work. This is what they do. There are no ISDS without that.
Their whole point is to trump the local law, by providing means for companies to sue for lost expected profits where the loss is attributable to having to heed laws.
As I said: saying the ISDS get out of hand when companies sue for loss of expected profits is like saying airstrikes are getting out of hand when property is damaged and people are being killed.
They are not “getting out of hand” when they do what they are supposed to do.
The politicians got out of hand when they negotiated this crap that puts profits first, laws and democracy last.
If you have people suffering from the consequences of radiation exposure of their grandparents still these days, it is not because the bombs on Hiroshima and Nagasaki “got out of hand”. It was because they worked. There was nothing you could have fixed with the bombs except refrain from dropping them.
Re: Re: Re:3 I can't believe there is a discussion
“They are not “getting out of hand” when companies sue for lost expected profits. They are working as intended.”
Those are not mutually exclusive. I understand that they are not getting out of hand from the point of view of the corporations. But they are absolutely getting out of hand from the point of view of everybody else.
“They are not “getting out of hand” when they do what they are supposed to do.”
Sure they are, when what they are supposed to do is to be out of hand.
Re: Re: Re:3 I can't believe there is a discussion
It is not time to put the corporations in our place. It’s time to put the corporations in their place.
Re: Re: Re: I can't believe there is a discussion
“What else would they be suing for?”
Originally it were designed to protect physical assets, like mining machinery and buildings seized by government/other parties. It had nothing to do with expected profits.
Why would Congress give up one of their most powerful tools for shaking down lobbyists? It’s one of the most idiotic things I could think of. If their laws can be struck down by ISDS why would anyone bother bribing them anymore. This only would make sense if they got a huge payment now to forgo a later installment plan for corruption.
Re: Re:
Well, you first have to have an agreement to invest in something, and the only ones with the requisite capital to make the whole venture worthwhile are states. So you lobby for the investment to go forward and know that even if it fails your ass is covered. Kind of “you spend money to make money”.
NYT
The New York Times Editorial yesterday was downright creepy. No mention at all of ISDS, and fast track as a way to make TPP better. An utterly dishonest bit of spin.
Re: NYT
Holy shit, we’re doomed.
USA – fin
Uh-oh
Headline clunker alert:
firsthand is one word.
An olde, mouldy compound word.
What is it with you youngsters, trying to reinvent the world.
😉
It's easy to ignore risks when it's someone else's money on the line
We have never lost an ISDS case because of the strong safeguards in the U.S. approach. And because we have continued to raise standards through each agreement, in recent years we have seen a drop in ISDS claims, despite increased levels of investment.
This sounds to me like the logic of someone playing Russian Roulette. ‘Hey, I’ve pulled the trigger 5 times now, and since I have yet to be shot, clearly this game is completely safe, and your worries about it are utterly unfounded.’
The difference of course being that the ‘gun’ in question isn’t pointed at his head, oh no, rather it’s leveled at the heads of the everyday citizens of the country.
Moreover, the gun doesn’t even have to be used to be effective, the billion dollar lawsuits are just the more obvious results, while the laws that are never passed, or the challenges or changes to laws already in place in order to avoid those billion dollar judgements, those show the real impact, and intentions behind corporate sovereignty ‘agreements’. The ability for a corporation to dictate laws to an entire country, that’s not something that anyone should be supporting or defending.
Re: It's easy to ignore risks when it's someone else's money on the line
Or, to put it another way, this is just another way of expanding American imperialism.
The threat to us is that the countries involved are pretty much forced to produce cheap goods for the US market, which then undercuts American businesses and puts American workers out of employment.
They seem to have forgotten that consumers require jobs that pay well so they can buy stuff in the first place.
U.S. investors often face a heightened risk of bias or discrimination when abroad.
Tough titties. That’s part of the risk of international investment. Stop investing across borders if this is too much risk for you.
> The reality is that ISDS does not and cannot require countries to change any law or regulation.
This, from the same people who profess that the threat of the possibility of 50 years behind bars in no way forces someone to plead guilty to a crime they didn’t commit.
This, from the same people who profess that the threat of a fire wiping out a place of business in no way forces a business person into buying “fire protection” from Ma’s Boys.
This, from the same people who believe that the threat of some innocuous series of events being strung together to make anyone *look* guilty of anything in no way forces someone into modifying their behavior, making them less free.
This, from the same people who believe that the threat of having their unpopular proclivities and activities exposed to those that have power over them in no way forces someone to modify their speech, thereby making us all less free.
This, is about what I expect from them these days.
here’s hoping an ISDS suit is brought against the USA then! perhaps then it will stop trying to screw the rest of the world over, just to ensure that it and all it’s companies, can do whatever the hell they like to ensure that they are alright, while fucking up everywhere else!! if ever there was a nation full of nothing but greed driven ass holes, it’s the USA!
Re: Re:
Well, that’s what the “safeguards” are for, inflicting one-sided damage on other countries.
However, suits against the USA are a calculated damage since the USA are the home of most multi-billion corporations. As a consequence, the US expects to be able to threaten other countries with economic obliteration through ISDS a lot more absolutely than the other way round.
It’s like a Goliath negotiating with a David to fight without weapons, armor, and gloves. Yes, he might get a few injuries as a result. That’s an expected consequence of squashing the other.
Re: Re:
It wouldn’t. The ones who end up paying out the money are the taxpayers, not the ones pushing for such clauses, so they have no reason to care how much a country gets sued for.
Re: Re: Re:
This bears repeating. ISDS has no real penalties for corporations, only benefits. Awards granted by an ISDS court come from the entire population of the targeted country in the form of lost taxes or fewer legal protections.
Corporations in the target country will benefit from a suit by a foreign investor state, since any government regulations that are reduced or repealed as part of a loss/settlement will benefit any business in the relevant industry. (Hell, if the legal changes then hurt a business in a different industry, then they can sue, too, creating some sort of infinite cyclical lawsuit business model.)
It’s funny, but this is the third time in a week (3 different TD posts on 3 different topics) that this design pattern (direct benefits from wins, with penalties for losses paid by “other people”) has occurred to me. I can’t believe how long it’s taken me to notice that this is such a common trope.
Re: Re: Re: Re:
Heads I win, tails you lose.
Oldest game in the book!
What Zients doesn't say
“…the US hasn’t suffered as a result of ISDS cases in the past”
How many legal threat letters, like the ones Canada has received, have been heeded so far?
I like a good dystopian corporatocracy in my reading list. I’d prefer to keep it out of my real life though.
Re: Re:
cleptocrazy is the word, not corporatocracy.
Re: Response to: Just Another Anonymous Troll on Mar 3rd, 2015 @ 8:17am
Check out the Stark’s War trilogy. 😛
Re: Re:
I know that reality usually turns out less dramatic than spec-fic… but we usually get something that’s kinda cool (not necessarily good, but interesting).
2001 was way off, but we still had space shuttles and space stations, and now we’ve even landed on a comet.
1984 lacked subtlety and went full-bleakness, but we’ve got creeping surveillance infiltrating our lives from disparate sources ranging from the NSA to Samsung.
But ISDS? This is a very disappointing response that reality has given to Gibson’s Sprawl Trilogy. TAFTA/TIPP is a sorry excuse for zaibatsu mercs mini-nuking each other’s mobile R&D labs.
FCC Net Neutrality backers neutralizes their own arguments against TPP
The best arguments that opponents of TPP had have now been neutralized by those who backed the FCC action on Net Neutrality. TPP Opponents have complained about the secrecy, lack of public input, corporate access to negotiators, the potential harm to the Internet infrastructure and freedom of speech. It has now been rendered mute by FCC Backers completely ignoring these same issues with the FCC and not only that but making excuses for why one is wrong in one situation but ok in another.
TPP opponents who supported FCC actions have severely hobbled themselves and will find it difficult if not impossible to make their case against TPP now. YOU have made TPP is practically a foregone conclusion now because of YOUR efforts.
Re: FCC Net Neutrality backers neutralizes their own arguments against TPP
What are you babbling about?
4 million comments from both sides?
Long in advance notice that this was coming?
Harm to infrastructure and free speech? I mean, seriously, what the F are you drinking this morning? Paint thinner is bad for you, man! It kills brain cells!
Re: FCC Net Neutrality backers neutralizes their own arguments against TPP
Reaching much?
Re: FCC Net Neutrality backers neutralizes their own arguments against TPP
No I am not overreaching. Lets say for instance when TPP is really being debated and considered by the Senate we all bring up how it was negotiated in secret and it was not subject to public scrutiny. The backers of TPP will say you had no problem with secrecy and no public scrutiny for FCC and net neutrality. That argument will now fall flat because of your inconsistency.
Re: Re: FCC Net Neutrality backers neutralizes their own arguments against TPP
“The backers of TPP will say you had no problem with secrecy and no public scrutiny for FCC and net neutrality.”
And the people saying this would be incorrect.
“That argument will now fall flat because of your inconsistency.”
There is no inconsistency. Most people here have consistently objected to the secrecy. However, that objection is mitigated by three things.
First, there was (and is) citizen involvement with the FCC’s actions. This has never been the case with TPP. Second, the FCC’s action is an attempt to mitigate a real and pressing problem. TPP is not. Third, the FCC is not creating law. TPP is.
Re: Re: Re: FCC Net Neutrality backers neutralizes their own arguments against TPP
That might be how you see it but those that are pro TPP or those on the fence will not see it that way.
Re: Re: Re:2 FCC Net Neutrality backers neutralizes their own arguments against TPP
So, basically the anti-net neutrality and pro-TPP/SOPA/ACTA people are the same assholes who think that whatever they’re proposing or counterproposing will be some magic bullet to defeat music piracy.
What else is new?
Re: Re: Re:2 FCC Net Neutrality backers neutralizes their own arguments against TPP
“those that are pro TPP or those on the fence will not see it that way”
Those that are in favor of TPP have a very strong economic incentive to be in favor of TPP, so nothing will change their position. I don’t care about them.
Those that are truly on the fence (and care about this issue) will listen to both the pro and anti arguments, so they may very well see it that way.
This ids tpp clause is like lets turn 1000,s of corporations into the software trolls,
us or the eu companys will take advantage of this,
JUST go to court , hire a few lawyers,get paid billions,
will sue each other for billions,
the loser is small companys ,
consumer, taxpayers ,
plus its a direct attack on democracy,
god forbid citizens or governments ,
should be able to set their own rules on safety ,
food regulation,
corporation info whistleblowers .
Its like letting russia or china decide the laws on user data ,
democracy,privacy,online user surveillance,data retention.
LIKE patents ,some big corporations ,trolls,lawyers,
polluting oil companys will benefit from this.
australia was sued to try and stop them changing the labels on cigarette packaging .
companys are just waiting for tpp to go into force before the start sueing us states ,or eu countrys ,
for possible loss of profits .
Just watch for which politicians start seeing million to billion dollar returns after every corporate lawsuit. or “donations” if you prefer.
Never has treason been so profitable in the most corrupt administration to date
Re: Re:
The worst part is that it’s not even as lucrative as you would expect, or at least not as lucrative as you would hope something so vile would be.
Already-wealthy politicians are not being bumped up to incredible wealth due to the largess of the capitalist business elite. They are trading the megabucks that will be taken from future taxpayers for comparatively modest campaign boosts and sometimes the promise of cushy jobs that will continue to keep them in the manner to which they have become accustomed.
tldr: politician tribe is selling the country for beads.
>the most corrupt administration to date
Just like every single administration since ever.
Billion dollar pain
Hmmm
Given that the “agreement” and in fact all of the negotiations have been held in secret and not released to the public,your statement:
“”That’s why the following comment is true but misses the point:
The reality is that ISDS does not and cannot require countries to change any law or regulation.””
Is a complete and flat out lie, now isn’t it.
The real reason that the US hasn’t been on the receiving end of ISDS suits is lobbying. ISDS suits only happen when the government does something a corporation doesn’t like, lobbyists ensure that rarely happens. This tends to be less true in other developed countries like Australia and Canada, hence the lawsuits there.
On an unrelated note, what I’d really like to see is someone use ISDS to sue the US govt for strengthening IP laws. It’s probably never going to happen, but a guy can dream, right?
Re: Re:
Cool. But continuing along that train of thought, how about the possibility of the US government being sued by multiple parties- for making laws stronger, making laws weaker, and keeping laws the same. And losing every which way.
Hey, I guess this means our modern free-for-all global marketplace operates just as efficiently as the natural world after all. No part of a dead carcass will go to waste; too bad that carcass had been a living, breathing democratic society.
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