EU Proposes New Corporate Sovereignty Court For TAFTA/TTIP; US Not Interested

from the CETA-still-a-backdoor-for-ISDS,-anyway dept

As we have reported, the most problematic aspect of the proposed TAFTA/TTIP trade agreement between the US and the EU has been the proposed corporate sovereignty chapter, formally known as investor-state dispute settlement (ISDS). The outcry over this was so great in Europe last year that the European Commission put negotiations of this topic on hold, while it carried out a public consultation on the matter -- presumably assuming that the extremely technical questions about this complex issue would kill off any further interest by the public. Instead, an unprecedented 150,000 submissions were received, 145,000 of which said get rid of ISDS completely. In response, the European Commission merely promised to try to address the many concerns raised with a new and "improved" version.

This was sketched out back in May, when the Commission suggested making the current secret tribunals more like a traditional court. Yesterday, Cecilia Malmström, the EU commissioner responsible for trade, and thus the TAFTA/TTIP negotiations, formally unveiled the European Commission's proposed replacement for traditional corporate sovereignty tribunals, which turns out to be almost identical to the first ideas presented back in May:

The proposal for the new court system includes major improvements such as:

a public Investment Court System composed of a first instance Tribunal and an Appeal Tribunal would be set up;

judgements would be made by publicly appointed judges with high qualifications, comparable to those required for the members of permanent international courts such as the International Court of Justice and the WTO Appellate Body;

the new Appeal Tribunal would be operating on similar principles to the WTO Appellate Body;

the ability of investors to take a case before the Tribunal would be precisely defined and limited to cases such as targeted discrimination on the base of gender, race or religion, or nationality, expropriation without compensation, or denial of justice;

governments' right to regulate would be enshrined and guaranteed in the provisions of the trade and investment agreements.
Although this addresses some of the more glaring faults with traditional corporate sovereignty, notably the lack of transparency, and the inability to appeal against tribunal rulings, it leaves untouched ISDS's biggest problem: the fact that it grants foreign investors unique rights to a completely separate legal system -- one unavailable to domestic companies or the public. For that reason, many organizations that were against old-style ISDS, are also against the new Investment Court System (ICS).

Even if the new ICS were perfect -- and it isn't -- it still wouldn't solve the problem of ISDS for EU citizens. Although Malmström said yesterday that the ICS approach was designed to be used in all future EU trade agreements as a replacement for the usual corporate sovereignty chapters, she admitted that was not an option in the Comprehensive Economic Trade Agreement (CETA) between Canada and the EU, saying: "we are not re-opening the CETA agreement." This confirms what we surmised in a recent post. But as Techdirt noted there, if CETA includes ISDS, US companies with subsidiaries in Canada, of which there are many, will be able to use Canada's trade agreement to by-pass TTIP's new ICS system completely, and sue EU nations indirectly, using ISDS with all its widely-recognized faults. Reforming TAFTA/TTIP's ISDS without reforming CETA's corporate sovereignty provisions is pretty pointless.

Even supporters of the new ICS are worried by this aspect. Bernd Lange is the MEP with responsibility for making recommendations on how the European Parliament (EP) should vote on international trade matters. Although he is relatively happy with the ICS solution, he has confirmed on Twitter that unless the ISDS chapter in CETA is re-negotiated, he will not recommend that the agreement with Canada is ratified when it comes to the main vote, expected in a few months' time. And without the support of his Socialists & Democrats group, CETA is unlikely to pass in the European Parliament, which would kill it completely.

Finally, there is the rather important question of whether the US will accept Malmström's new ICS. As we wrote last month, there's already some indication that the US is not prepared to move from ISDS tribunals to a new kind of open court system. That confirms an earlier dismissal of the idea by US Undersecretary for International Trade at the Commerce Department, Stefan Selig, back in May. Another indication of the US view can be found in a sharp rejection of the EU's ICS proposal by the US Chamber of Commerce, reported here by the Global Edition of the Handelsblatt newspaper:

"While we recognize the E.U. has a political problem relating to future investment treaties, the U.S. business community cannot in any way endorse today's E.U. proposal as a model for the Transatlantic Trade and Investment Partnership (TTIP)," according to Marjorie Chorlins, the chamber's vice president of European affairs.

"The recent European debate around investment treaties -- the obligations governments accept in them and the methods they provide for dispute settlement -- is not grounded in the facts, and the distortions in this debate cannot be allowed to trump sound policy," she said in a statement."
It will be interesting to see what the official US position is on the ICS idea, but those comments from the influential and well-connected US Chamber of Commerce suggest that the battle over whether corporate sovereignty should be included in TAFTA/TTIP, and in what form, is far from over.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+


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  • icon
    That One Guy (profile), 17 Sep 2015 @ 10:05pm

    Oh look, another laughable distraction

    The USG will never accept any significant change to the corporate sovereignty clauses, so the EU either needs to admit that they don't care what the public thinks, they're accepting the agreement, corporate sovereignty clauses and all, or listen to the public and refuse the agreement so long as it contains those clauses.

    All this 'well maybe if we change a few things' is ignoring how utterly broken corporate sovereignty clauses are at the core, as they give private corporations equal if not higher power to determine laws than governments. Doesn't matter how much gold dust you sprinkle on a pile of crap, how shiny you make it look on the outside, it still remains crap, and the same idea holds true here.

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

  • identicon
    David, 18 Sep 2015 @ 12:24am

    No pretense here

    Apparently the USG and other U.S. facilities bribed to serve its corporate masters are not even going to pretend that they don't have the drop on the negotiations by virtue of the NSA having bugged all democratic institutions in Europe and consequently having complete knowledge of the job and private life of European representatives.

    I'm not sure whether this "bend over or we'll screw you worse" attitude is really smart. There might be a non-negligible number of representatives you consider it more of a priority to save their face than their ass.

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

  • identicon
    andy, 18 Sep 2015 @ 12:53am

    Simple No!!!

    Could someone explain this clause in the agreement like i was five years old.

    I seem to be reading that a company could sue a government and the government would have no right to have a court case to reject a companies claims.

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

    • identicon
      spodula, 18 Sep 2015 @ 1:08am

      Re: Simple No!!!

      Your not far wrong. The government would have a right to an Arbitration panel to reject a companies claims, However, the arbitration panel is stuffed with lawyers who have incentives to side with the company, and there is no appeal.

      The arbitration panel is also secret, so you only get to know the results.

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

    • identicon
      David, 18 Sep 2015 @ 1:57am

      Re: Simple No!!!

      Could someone explain this clause in the agreement like i was five years old.

      Uncle Sam knows what's best for you. Have some candy and pull down your trousers.

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

  • icon
    techflaws (profile), 18 Sep 2015 @ 1:28am

    The proposal for the new court system includes major improvements such as:

    „You can have it in any color as long as it's black".

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

  • icon
    MDT (profile), 18 Sep 2015 @ 3:09am

    Finally, someone I can agree with...


    "The recent European debate around investment treaties -- the obligations governments accept in them and the methods they provide for dispute settlement -- is not grounded in the facts, and the distortions in this debate cannot be allowed to trump sound policy," she said in a statement."


    It's about time someone in a government position openly admitted to all the distortions around ISDS that the US Trade Representative has promulgated. We simply cannot allow these distortions to trump sound policy!

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

    • identicon
      Anonymous Coward, 18 Sep 2015 @ 5:30am

      Re: Finally, someone I can agree with...

      Errr... no, she's not admitting anything about the USTR, sadly.

      What she calls "distortions" are the voices of the citizens that are against it, not what the USTR says about ISDS.

      According to her (and the EU Commission and corporations), ISDS is the best thing to happen, as it will attract inversors and it's the best thing in the world.

      Now, I need to puke...

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

  • icon
    Anonymous Howard (profile), 18 Sep 2015 @ 3:11am

    Laughing hysterically

    on this:
    "is not grounded in the facts, and the distortions in this debate cannot be allowed to trump sound policy"

    Since when did factual background and sound policies became requirements for the USTR and USCC policy making?
    (don't answer, it was a rhetorical question)

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

  • identicon
    A. Lauridsen, 18 Sep 2015 @ 4:26am

    It will ultimately fail.

    It seems to me that the USG tries to ignore the fact that the US needs TTIP more than the EU.

    The benefits the US private sector will gain will be greater than the benefits the EU private sector will gain. The US is trying to get easier access to a marketplace of some 650 million consumers, while the EU is trying to get easier access to a marketplace of 317 million consumers.

    The EU will have to give up on Consumer protection, animal welfare, GMO crops, chemical additives in foods and consumer products.

    The US will only have to give up on control of its financial system.

    Ultimately big money might get around that. The stumbling block will be conversion to the metric system. E.g. all consumer electronics are required by EU regulation to have an electrical cord of no less than 1 meter while the US uses 3 feet.

    The US private sector would have to adapt to the metric system at an even greater scale than they do today. In the conservative climate of today, this will be a no go.

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

    • identicon
      Anonymous Coward, 18 Sep 2015 @ 6:28am

      Re: It will ultimately fail.

      To be honest: GMO has already been mostly subdued by the commission using a lack of opposition (also a lack of approval) in the parliament to push a few things through already, making precedence and so on... I agree that EU is giving up on some other good standards, but I don't see it as that much of a stumbling block.

      When it comes to the metric system - particularly with the new approach for definitions - many companies are already bilingual and I know for a fact that many well-educated people are crying for the shift, for convenience.

      The problem overall, as I see it, is philosofically how companies are treated and how politics should work. In US there is a very strong belief in non-interference in markets, thus the companies are basically more important than the political interventions governing them, while in EU, the political interventions are seen as protection against bad market effects and the political interventions as being somewhat more important than companies.

      ISDS is the ultimate tool for companies to use against political interests since it is so staggered in their favour and generally lacks rules to protect non-commercial interests.

      ICS would put an uncontrollable judiciary oversight in place and in US own view of history those things are generally a terrible idea to accept since it restricts the government more than company interests do (whether or not company interest are government policy or not is another question).

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

    • identicon
      David, 18 Sep 2015 @ 10:32am

      Re: It will ultimately fail.

      It seems to me that the USG tries to ignore the fact that the US needs TTIP more than the EU.

      The U.S. gets harmed almost as much by TTIP as the EU. This is not catering for the U.S. but catering for internationally acting corporations which get to cherry-pick the most convenient laws over all of the countries they operate in nominally and sue all other countries to recompensate them for being less forthcoming.

      Just because the U.S. has pretty shitty environmental and consumer laws in a world-wide comparison does not mean that there aren't worse to be had anywhere else, and if they are, TTIP will effectively import them.

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

  • identicon
    Thrudd, 18 Sep 2015 @ 4:41am

    All the international us manufacturers already use metric because they already sell in those markets.
    Outside of a tiny bunch of tiny throwback contries only the us avoids metric and this acts as a trade barrier.

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

  • identicon
    Anonymous Coward, 18 Sep 2015 @ 7:59am

    The same shills that defend IP laws in the name of helping the artists and making it more difficult for corporations to exploit them would come here defending the very corporate sovereignty laws that corporations lobby for.

    There is nothing wrong with corporations per se. The problem is that the shills want to defend the lazy corporations, the ones that want an easy revenue that requires minimal work, risk, and investment through monopolistic regulation (like ISPs, taxi-cab medallion laws, IP, etc...) against the ones that earn their living in a free market by providing a valuable public service (ie: Megaupload, Google/Youtube, Uber). The shills around here have no integrity, their very posts prove it.

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

    • identicon
      Median Wilfred, 18 Sep 2015 @ 10:09am

      IP defending Shills ignor Glynn Moody

      I've long noticed that more aggressively pro-copyright/IP rulz! trolls avoid commenting on Glynn Moody's articles. This bothers me a little, as it would seem the trolls are personally more interested in The Masnicator than Moody. That is, a bias like that indicates a crack in their armor, they're not just sociopaths doing an unpleasant job for top dollar.

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

  • identicon
    Anonymous Coward, 18 Sep 2015 @ 10:52am

    Let the children play

    I think they should be forced to implement this.
    It will be a few short years and the entire system will be flooded by greedy CEO's looking for an easy bonus pay-out, insatiable business-owners looking for free money from governments, and businesses looking to bankrupt competitors.
    It may well be the fastest way to end the current corporate welfare system.

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

  • identicon
    Anonymous Coward, 18 Sep 2015 @ 12:12pm

    'EU Proposes New Corporate Sovereignty Court For TAFTA/TTIP; US Not Interested'

    damn good job! let's hope that these and all other 'Trade Deals' fall completely apart! the scary thing is though, to me that the USA seems to think that all the Trade Deals must be how it wants and fuck everyone else, particularly if one of the involved countries has the audacity to put something, or at least try to put something, in that may be less beneficial, but not to itself

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

  • identicon
    David E.H. Smith, 18 Sep 2015 @ 2:24pm

    Suing the Global Corporate Economy.

    Suing the Global Corporate Economy. EU; Native Canadians Supporting the Endeavors of Grassroots EU?

    Another good reason for non-Native citizens of Canada, the EU, Trans Pacific nations, China, et al, to support Native Canadians in; Ending the Deprivation of the Due Diligence Treaty Information, Ending Toxic Pollution, Prohibiting Fracking & Accessing Hazardous Natural Resources, Reconciling the Abuses of The Residential Schools (& its subsequent cover-up & ‘Inquiry’), Ending the ‘Designer Racism’, ‘Moving Political talks’ along, the Investigation into Missing Native Women, et al…

    Native Canadians can Save Non-Natives Canadians, et al, from Corporate Canada’s superseding TTIP, CETA, TPP, C-CIT & other Global Corporate Treaties/'Arrangements'?

    But, Under what Circumstances would Native Canadians consider helping non-Native Canadians, et al, to Co-Sue the Federal Government & Corporate Canada, et al, for Deprivation of Due Diligence Info, besides Ending the ‘Designer Racism’ & other considerations? Non-Natives Canadians, et al, can learn a Great Deal about the Need for Litigation against Corporate Canada & its Representatives in Parliament & Congress.

    While the decision to cancel the license to access & pollute a huge amount of water used for fracking by Nexen’s Chinese & Canadian investors may be good for the citizens of the Fort Nelson First Nation, the context of the decision is still unsettled & dangerous for both; Native & non-Native Canadians.

    This is the second ‘set-back’ for Corporate Canada’s investors in China’s corporate energy participant, Nexen, in the China – Canada Investment Treaty (C-CIT) whereby Corporate Canada & the government of Canada (PM Harper & the executives of the ‘opposition’ parties) have sold, &/or, deliberately misrepresented to China & other potential signatories of the flurry of Global Corporate Treaties/’Arrangements’; CETA (EU), TPP (Trans Pacific nations) &, by association, the TTIP (U.S – EU), on the basis of unrealistic expectations regarding Corporate Canada’s ability to control;
    Native politicians & Native voters in order accept unofficial (non-government, or, non-legal, sanctioned fines, &/or, awards) pay –offs
    &
    Non-Native Canadians by way of fanning the flames of the uniquely Canadian ‘designer racism’.

    As all of Corporate Canada’s traditional parties (minus the Green party) support the secret Tribunals’ ‘arrangements’, Corporates China & Canada are desperate to avoid having the secret Tribunal of the C-CITreaty financially punish the taxpaying voters prior to the federal election. Corporate Canada is even more desperate to make sure that the decision by the post-election Tribunal deciding in favor of the Chinese & Canadian investors will not:
    tip-off the Canadian voters & cause the voters to reject the yet to be ratified TPP & CETA
    &, perhaps more importantly,
    tip-off the voters in the U.S., the European Union, the Trans Pacific nations, et al.
    And, finally, the Nexen investors have to wait until after the Canadian Oct., 2015 election in order for the faux ‘opposition’ to put some distance between itself & those ‘evil followers of Harper’ (ie. the Conservatives), even though they, the faux ‘opposition’ (the Liberals & the New Democrats), are also supporters of the means to inhumanely & secretly punish the ‘harmless’ voters, both; Native & non-Native, of Canada.

    And, if one understands why President G.H.W. Bush explained to Canadians ‘Well, you should have Known’* regarding Corporate ‘America’s’ (ie. Canadian investors, et al, in American companies doing business in Canada) reneging on the FTA as per the soft lumber ‘dispute’, then perhaps one might understand why Presidents Bush, Obama, et al, might very well say the same thing to his fellow American voters & the voters in all of the other potential signatory nations.

    And, while some** have concluded that Corporate Canada’s ‘handling’ of grassroots Canadians, particularly, Native Canadians, continues to be repugnant, it may be worthwhile to point out that while grassroots Canadians have been conditioned/educated to defer to government imposed ‘compromises’ & to be reluctant to engage in legal battles, ie.‘suit-adverse’, as opposed to litigious Americans, Native Canadians have wisely & successfully determined that litigation is the only way to get around the secret arrangements that benefit a few band members for the period of an election cycle by engaging in litigation that benefit the entire community by questioning, testing, buttressing & furthering the rights of Native Canadians.

    And, while non-Native Canadians do not have the benefit of having the financial & institutional capabilities to sue Corporate Canada & the government of Canada, grassroots non-Native Canadians may find a vast common ground with Native Canadians, whereby Native & non-Native Canadians can exercise & increase the benefits of their version of ‘democracy’ by establishing effective means of checks & balances over the combined forces of Corporate Canada & the representatives that they choose for the voters to select as Members of Parliament. One of the means for accessing the aforementioned checks & balances arises from creating the forums for all Canadians, et al, to share, improve & discuss, etc., the information & the questions in The W.A.D. Accord*** (also referred to as ‘The Australian Question’) which is intended to prevent Native & non-Native Canadians, et al, from continuing to be deprived of the due diligence information that can provide the basis for the more informed financial planning of their families & communities.

    Therefore, by looking at the context of the decision to turn down Nexen’s fracking license one can get a better understanding of why Corporate Canada has anxiously help develop the aforementioned Treaties/’Arrangements’ that would supersede the benefits in The WAD Accord & its Compensation while continuing to deprive & now, after the ratifications, legitimize Native & non-Native Canadians, et al, of the information in the Treaties/’Arrangements’ & legitimizing (ie. making it legal for Corporate Canada &/or its Associates to make any & all secret, self-serving arrangements in the future).

    David E.H. Smith
    - Researcher
    - 'Qui tam...'

    *see; ‘Well, you should have Known’ at davidehsmith.wordpress.com
    ** Who is the ‘coveted’ Chinese investor who stated:
    ‘When it comes to dealing with Canadians (Corporate Canada & their politicians?) it’s not that we are not racist, we just can’t stand the way that you suck up to us’.
    And, which Canadians are coveting this potential Chinese investor & his global associates?
    ***The W.A.D. Accord, see; Google, or, davidehsmith.wordpress.com
    ***
    Also, see; 'The Submission' to The SUPREME COURT of CANADA:
    ‘The SHAREHOLDERS & Corporations of AMERICA, China, Canada, the EU, the Trans
    Pacific nations, et al
    v.
    the (harmless) Canadian NON shareholders, both; Native & non Native, et al’
    including
    'The MERKEL (Chancellor of Germany) Letter; To Sue, or, Be Sued?'
    (see; davidehsmith.wordpress.com)
    ***
    FULL Article, see; Reader Supported News; David E.H. Smith

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

  • identicon
    David, 19 Sep 2015 @ 8:16am

    Well, the main problem is this:

    Corporations get to sue for lost purported profits, not actual demonstratable damages. That means that you can found a company, design a product for which the sale is prohibited by a number of national laws, make a business plan for the product and then sue for the purported profits that you could have gotten when building a production and sales site in the country with the laws prohibiting it.

    You don't actually need to take the actual investment risks. You just put the numbers on the table and get your payout.

    In other words: trade trolling is coming to a country near you. The tax payers pay for imaginary products/productions they hate enough to have laws against them.

    A brothel owner in the Netherlands just needs to create a subsidiary in the U.S.A. (East Texas would seem as good a place as any), then sue for the profits for 30 brothels he is not allowed to open there.

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


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