Analysis Shows European Commission's 'Improved' Corporate Sovereignty Model Would Actually Make Things Much Worse

from the institutionalized-regulatory-chill dept

Last year, the controversy around corporate sovereignty was such that the European Commission felt obliged to slam the brakes on this particular part of the TAFTA/TTIP negotiations in order to try to defuse the situation. The ostensible reason for that unexpected pause was to hold a public consultation on the "investor-state dispute settlement" (ISDS) mechanism. It turned out to be of a very limited kind. Rather than asking whether people wanted corporate tribunals passing judgment on their laws and regulations, the European Commission instead presented the ISDS chapter of another agreement, that with Canada, and posed some rather technical questions about the subtle changes it incorporated.

The Comprehensive Economic and Trade Agreement (CETA) is nominally finished, and is currently undergoing what is known as "legal scrubbing", during which it is checked and polished for final ratification by Canada and the EU, although that's looking much more problematic now than it did a year ago. In the consultation, CETA's ISDS chapter was offered as a kind of template for TAFTA/TTIP. The Commission's argument was that it incorporated many improvements over traditional corporate sovereignty chapters -- which even the EU admitted were flawed -- and could be tweaked further to produce an even better solution for the US-EU negotiations.

Techdirt has already written about one detailed analysis of the claimed improvements in CETA's ISDS that found them seriously wanting. Confirming that view is a new paper from Gus Van Harten, who is Associate Professor of Law at York University in Toronto, Canada. He has taken advantage of the fact that we now have two recent EU free trade agreements with corporate sovereignty chapters: the one with Canada, plus a less well-known deal with Singapore. Van Harten's paper looks at both of them in order to explore to what extent the European Commission's new model for ISDS represents an advance over previous versions, and is therefore something that might usefully form the basis for a possible corporate sovereignty chapter in TTIP. Here's his concluding summary:

The CETA and [EU-Singapore] FTA demonstrate the Commission's willingness to accept ISDS -- based on the model long pushed by Western European countries for developing and transition countries -- that is flawed due to its lack of independence, fairness, and balance. The Commission's approach to ISDS, as represented by the CETA and FTA, does not ensure basic safeguards of judicial independence and procedural fairness. It does not affirm clearly the state's right to regulate. It does not introduce actionable responsibilities for foreign investors or even require foreign investors to resort to domestic courts unless they have been shown not to offer justice. The only notable improvement in the CETA and FTA approach to ISDS, compared to the historical Western European model, is its greater provision for openness.



By including ISDS in the CETA and FTA, as forerunners of a TTIP, the Commission would make the problems of ISDS much worse. The Commission aims to expand and lock in a deeply flawed system of dispute resolution -- premised on the special privileging and subsidizing of large companies and very wealthy individuals, with lucrative returns also for ISDS lawyers and arbitrators -- so that it covers most of the world economy.
Although that is pretty unequivocal, it's worth reading the whole paper to understand why Van Harten is so dismissive. It contains many insights along the way, including the following astonishing fact:
The CETA's provision on the arbitrators' power to award damages to foreign investors includes a clause that I have not seen in any investment treaty. The clause says that, in calculating monetary damages, the arbitrators shall reduce the damages to account for "any... repeal or modification of the measure". Thus, the CETA appears to establish an incentive for states to change their decisions in order to appease a foreign investor (who has brought an ISDS claim) as a means to limit the state's exposure to potentially massive liability at the hands of the arbitrators. Put differently, this clause in the CETA appears to institutionalize the ISDS dynamic of "regulatory chill".
So much for the idea that corporate sovereignty "does not and cannot require countries to change any law or regulation": not only does the CETA text admit it can happen, it even provides a strong incentive to do so.

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Filed Under: canada, ceta, corporate sovereignty, eu, isds, tafta, tpp, ttip


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  • identicon
    Anonymous Coward, 11 Jun 2015 @ 6:43am

    none of these type of deals were, are or will be any good to anyone other than the mainly USA companies and industries that get the US government to drop hints about getting another one up and running, giving USTR and whoever the incentive to produce another load of bullshit and bollocks that screws the people into the ground, while removing freedom and privacy, a bit at a time, until there is nothing left at all! the only ones who benefit are the industries that are not just involved, but actively put in what they want to see included in the deal, basically making it a new law that is written specifically by themselves, for themselves, also removing as many protections as possible on the way!!

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 11 Jun 2015 @ 8:57am

    Face it, the governments are just for show; It's the corporations that are in charge. The TV show Continuum got it right...

    reply to this | link to this | view in chronology ]

  • identicon
    David E.H. Smith, 11 Jun 2015 @ 5:47pm

    TPP, TTIP, CETA & Global Treaties/'Arrangements’

    TPP, TTIP, CETA & Global Treaties/'Arrangements’; ‘You Should Have Known’ - U.S. president George H.W. Bush regarding the U.S. ‘reneging’ on the NAFTA Foray with Canada.

    Corporations Cut Costs & Dramatically Increase flat Profits by Not Suing each Other & by Suing the Little Guy (via ‘your’ Gov’t.) who’s ‘Guilty’ even Prior to Tribunals & All of the Time.

    Teaching the Gordon Gekkos’ of Wall St., Congress, et al, some Humility & Integrity via Quantifying?
    ‘Obama’s’ (Corporate America’s) Self-Exploding SECRECY.

    If Not 'Treason', then, there are very compelling arguments for concluding that the corporations, whether they be, foreign, domestic, &/or, a blend, that do not respect the 'lesser' jurisdictions, ie. individual provinces, territories, &/or, states, or, municipalities, are not good corporate citizens of the host countries & thus, can be treated as 'persona non grata'.

    The Global Treaties/’Arrangements’ with their Secret ‘Death-Star-Chamber’ Tribunals that The Global (non BRICS) Corporate Economy is in the Process of Secretly Passing will Finally Legitimize its Ability to secretly move money around, ie. ‘launder’ without Fear of Legal/government Regulation. It’s their Own Jurisdiction & they Insist that you Pay for & Not them.

    Will TPP be Okay if ‘US’ corporations can Prove that they Won't Benefit from Partnerships that Try to Disguise that Corporate USA is Circumventing Other ‘Lesser’ Jurisdictions (State/Municipal)?
    ie. Corporations Need Proof of Non Circumvention of 'Lesser' Jurisdictions, or else, 'Non Good Corporate Citizens', &/or, 'Persona Non Grata'

    What is Governors’ Rationale for not Defending Taxpayers; States Colluding with Feds?

    Corporate America’s Last Chance to Fleece the Little Guy (95% - 99% of U.S.) Before Tanking the Global (non BRICS) Economy? Exploitable ‘Vulnerabilities’, Holes & Back Doors to Close.

    2 Republican Senators Admit that They Have read the TPP.
    Should Congressmen & Parliamentarians Have to Sully Their ‘Beliefs’ & Sales Pitches with
    ‘Sordid’ Facts that Come from Actually Reading & Understanding Global Treaties/’Arrangements’?
    Congress; Deluded, or, Deluding; 'IGNORAMUS et IGNORABIMUS' (I do not know & I will Not Know)?

    Can ‘your’ Federal Representatives Willingly Answer ‘your’ Questions below If They haven’t Read the TPP & other Global Treaties? All You have to do is Ask them ‘For Your Record’ & then Share Their Inability with Others.
    Don’t Forget to Demand Your Money Back for ‘Supplementing’ Fed Rep’s Wages & Future Considerations at Incompetency Tribunals.
    How many ‘Preferred’ Shares are You Selling Your Right to Sue The Global Corporate Economy for?

    TPP, TTIP, CETA & Global Treaties;
    Corp.’ U.S.’ Need to Fast Track TPP & Global Treaties.
    TPP & Global Treaties part of corp. US's attempt to Increase $17+ Trillion
    Debt 'Earning$' & to Legitimize Hidden Earning$ in Untouchable Foreign Banks.
    Time to REPATRIATE 'Earnings'; NO FOREIGN Accountants, Banks, Services, etc.
    NO Trickle Down from Hiding ‘Earnings’ in Secret Off-Shore Accounts.

    Global Treaties Not about How Much Trade, but, How to & Who to Trade with to 'Undermine' AIIB.
    Shifting Costs to harmless Non Shareholders to Inflate ‘Profits & Dividends’.
    Is it Time to Cool off the 'Stockbrokers' again; Buy Gold?
    'Schadenfreude' & the Public; Too 'Unenlightened' to Figure out 'The Global Sleight of Mind' Illusion.
    - David 'Copper' Smith

    Will Individual States Jump at Opportunity to: Refuse, or, 'Over Charge' Business Licenses, Raise Targeting State Taxes, 'Road' Taxes, etc. to Recoup Global Treaties' Suits (plus Earn Lucrative 'Punitive Damages') from Non Good Corporate Citizens (non-Compliant of State laws), Associated/Support Corps., Securities Exchanges, et al?

    Are TPP & Global Corporate Treaties/’Arrangements more about Tort ‘Abolishment’ than Tort ‘Reform’?
    But, Do YOU know the various different ways to Make the leaders of TPP, Shareholders, et al, 'Persona non Grata'; Shareholders' Meetings I.D. Toxic Neighbors, In-laws, et al?

    Corporate Canada’s, via PM Harper, Perilous Deprivation of TPP, C-CIT, CETA, et al, Signatories of Due Diligence Info (The WAD Accord/Compensation), May Hurt Corp.Can & Shareholders More than the Rest (95% - 99%) of citizens of Canada, US, EU, Trans Pacific nations, or, may not…

    But, If Not PUTIN; 'The WHITE KNIGHT', then Who Do YOU Want to Bankroll the Saving of the harmless NON shareholders of the World from Fast Tracking TPP's, CETA's (TTIP) Secret 'Death-Star-Chamber' Tribunal Penalties?
    Will Iran, China, the Muslim World, et al, Support Putin in Suits?
    How about Warren Buffett, &/or, the 'coveted' Hong Kong investor, et al?
    ***
    FULL Articles, see; davidehsmith.wordpress.com
    ***
    Please consider sharing the enclosed information & questions with 10 friends who will share it with 10 others...

    reply to this | link to this | view in chronology ]


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