Over 200 Economics & Law Professors Urge Congress To Reject Corporate Sovereignty Provisions In Trade Deals

from the more-of-this-please dept

We've written quite a lot for years about the massive problems with "corporate sovereignty" provisions in trade agreements -- so-called "investor state dispute settlement" (ISDS) provisions -- that allow companies to "sue" countries for regulations they feel are unfair. These aren't heard by courts, but rather by "tribunals" chosen by the companies and the countries. Some supporters of these provisions claim that there's really nothing wrong with them because they help encourage both investment in different countries and more stable and fair regulations.

If that's the case, though, why are over 200 economics and law professors signing a letter to Congress telling them to reject any trade agreements with these provisions?
Through ISDS, the federal government gives foreign investors – and foreign investors alone – the ability to bypass that robust, nuanced, and democratically responsive legal framework. Foreign investors are able to frame questions of domestic constitutional and administrative law as treaty claims, and take those claims to a panel of private international arbitrators, circumventing local, state or federal domestic administrative bodies and courts. Freed from fundamental rules of domestic procedural and substantive law that would have otherwise governed their lawsuits against the government, foreign corporations can succeed in lawsuits before ISDS tribunals even when domestic law would have clearly led to the rejection of those companies’ claims. Corporations are even able to re-litigate cases they have already lost in domestic courts. It is ISDS arbitrators, not domestic courts, who are ultimately able to determine the bounds of proper administrative, legislative, and judicial conduct.

This system undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law.

In addition to these fundamental flaws that arise from a parallel and privileged set of legal rights and recourse for foreign economic actors, there are various flaws in the way ISDS proceedings are meant to be conducted in the TPP. In short, ISDS lacks many of the basic protections and procedures of the justice system normally available in a court of law. There are no mechanisms for domestic citizens or entities affected by ISDS cases to intervene in or meaningfully participate in the disputes; there is no appeals process and therefore no way of addressing errors of law or fact made in arbitral decisions; and there is no oversight or accountability of the private lawyers who serve as arbitrators, many of whom rotate between being arbitrators and bringing cases for corporations against governments. Codes of judicial conduct that bind the domestic judiciary do not apply to arbitrators in ISDS cases.
The letter appears to have been organized by famed law professor Laurence Tribe and famed economist Joseph Stiglitz -- as an update to a very similar letter they sent last year -- with many fewer signatories.

Many of the people who signed are really well-respected (including some I consider friends), but both Tribe and Stiglitz are fairly well-known for where they come from on the political spectrum -- and it would have been nice to have found equal weight from other parts of the political spectrum to balance this letter out a bit. It's still a good letter, and one whose message I agree with, but I fear that many in Congress will just dismiss it as "another Tribe/Stiglitz letter." That's too bad, because it really is a good letter.

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  • icon
    Roger Strong (profile), 15 Sep 2016 @ 2:54pm

    ISDS: Like climate change, but with more denial from Congress.

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

  • identicon
    Personanongrata, 15 Sep 2016 @ 3:18pm

    US Congress: What is it Good For?

    Over 200 Economics & Law Professors Urge Congress To Reject Corporate Sovereignty Provisions In Trade Deals

    It's nice that over 200 economic/law professors have urged congress to reject corporate sovereign provisions in pending trade deals but will congress listen?

    How many experts have testified before congress in regard to encryption standards and how adding known (to the government) exploits potentially weakens the encryption?

    Has congress taken heed of their expert security advice?

    No, we still have a collection of know-nothing nincompoops (Feinstein/Burr/McCain etal) running in circles and flailing about in front of the cameras while repeating their tired tale of going dark and the need for the government to have "special" access for national security purposes. Otherwise the terrorists and drug dealers would win.

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

    • identicon
      Anonymous Coward, 15 Sep 2016 @ 3:39pm

      Re: US Congress: What is it Good For?

      When the American citizens wise up and stop voting for these bastards, things will change. Until then...

      Every Nation gets the Government it Deserves.

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

      • icon
        Padpaw (profile), 15 Sep 2016 @ 4:06pm

        Re: Re: US Congress: What is it Good For?

        Every corrupt government gets the revolution/civil war they create out of sheer neglect of their citizens rights.

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

      • icon
        That One Guy (profile), 15 Sep 2016 @ 11:50pm

        Vote harder!

        Still waiting for you to get past the 'blame the public for the government's actions' stage and move on to the 'explain what the public should/should have done' step...

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

        • identicon
          Wendy Cockcroft, 16 Sep 2016 @ 7:37am

          Re: Vote harder!

          Well that's easy, TOG: keep an eye on what the 'critters are doing and hold them to account for it. This is easier to do via groups like EFF or ACLU but the idea is to not just leave them to get on with it.

          We also need to discuss what they get up to on our social media accounts and get as many other people on board as we can. I'm an activist; I'm calling on you all to become activists, too. At the very least, it means regularly contacting your representatives to discuss those things that bother you about the things that go on. In Britain, it means attending MP's "surgeries" to complain about TTIP, etc. This really does work.

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

      • identicon
        Anonymous Coward, 16 Sep 2016 @ 5:04am

        Re: Re: US Congress: What is it Good For?

        Every megalomaniac gets the .. ummmm - everything.

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

  • identicon
    John Mayor, 15 Sep 2016 @ 3:38pm

    WHAT A STANK, STUNK, STINK

    WOW!... AND HOLY CR*P!... OR SHOULD I SAY, "UNHOLY CR*P!
    .
    And when you realize that you and I are not a party to these "arrangements", it makes it VERY CLEAR why the TPP is a ROBUST FAILURE! WOW, WOW, WOW! Great stuff!... and what a bunch of skunks!
    .
    Please!... no emails!

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

    • identicon
      Anonymous Coward, 15 Sep 2016 @ 3:41pm

      Re: WHAT A STANK, STUNK, STINK

      The Citizens are ALWAYS a party to these arrangements. Only a fool believes otherwise! It is our responsibility to vote these clowns out if we do not like what they are doing. So far, we approve!

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

      • icon
        That One Guy (profile), 16 Sep 2016 @ 12:42am

        Re: Re: WHAT A STANK, STUNK, STINK

        The text was released november of 2015, last year, after being kept secret from the public(not industry reps mind, just the public) for years.

        It is approximately 6,000 pages long, broken up into several documents(though at least one non-government group, The Washington Post collected it and made it searchable), and when the government isn't singing it's praises as The Most Awesome Thing Ever they're generally silent on the subject, meaning the only way to learn what's actually in it is to try to dig through the legalese on your own or find someone else that's done it for you. But again, 6,000 pages.

        2015 wasn't an election year for President, Senate or House, meaning even if the public wanted to vote everyone involved out they had no opportunity to do so.

        2016 is for all three, but thanks to 'Fast Track Authority' which was passed June 2015 any 'trade' deal only needs 50 votes to make it through the Senate, meaning even voting out every single person possible in the Senate wouldn't be enough if the 2/3rds left were in favor. As for the House... well, this little thing called 'gerrymandering' makes sure that those seats tend not to change very often(approximately 10% of the time).

        And of course there's this little thing called... oh what was it... ah yes, 'The 2016 presidential election' that tends to attract people's attention away from other topics like a 'trade' deal that most people know effectively nothing about, if they know about it at all.

        But by all means, feel free to explain how the public which was kept in the dark for years should have been able to wade through 6,000 pages of legalese in the course of a year, with the first opportunity to vote those claiming support of the 'trade' deal out coming before the actual vote regarding it happens, is totally at fault for not voting those politicians in favor of it out.

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

        • identicon
          Anonymous Coward, 16 Sep 2016 @ 5:06am

          Re: Re: Re: WHAT A STANK, STUNK, STINK

          Facts???

          We don't need your stinkin facts!!!

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

        • identicon
          Wendy Cockcroft, 16 Sep 2016 @ 7:40am

          Re: Re: Re: WHAT A STANK, STUNK, STINK

          Had more of us joined in the protests to get the text made publicly available sooner, we'd probably not be having this conversation now.

          If we're not willing to campaign for change, don't be surprised when it doesn't happen. That campaign fatigue is a thing is the problem: THEY don't get tired of screwing us, so we should not allow ourselves to grow weary of pushing back.

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

          • identicon
            Anonymous Coward, 16 Sep 2016 @ 9:06am

            Re: Re: Re: Re: WHAT A STANK, STUNK, STINK

            "Had more of us joined in the protests to get the text made publicly available sooner, we'd probably not be having this conversation now."

            Yeah - right. More likely there would be several dead and many more injured as a result of protesting.

            Pro Tip: The riche elite ruling class does not care about the proles.

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

      • identicon
        Anonymous Coward, 16 Sep 2016 @ 5:52am

        Re: Re: WHAT A STANK, STUNK, STINK

        The citizens foot all the bills, even corporate tax bills in the form of higher prices for goods and services to cover those tax bills. So you can complain that Repubs give corp tax breaks, which make their costs less and maybe makes prices less or you can complain that Dems want to tax corporations out of business thus driving up prices. Either way, the money ultimately comes from the citizenry. It is time the citizenry realize this.

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

  • icon
    Padpaw (profile), 15 Sep 2016 @ 4:05pm

    The only way to get congress to reject something they are being paid off to accept would be to give them a bigger bribe. If they cared 1 whit about doing their jobs properly they would not accept bribes for anything.

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

  • identicon
    Kronomex, 15 Sep 2016 @ 5:44pm

    It's a good thought but the corporate dollar trough will win out in the end.

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

  • identicon
    Charlie Brown, 15 Sep 2016 @ 6:52pm

    Odds

    They may have over 200 economists against it, but they have over 300 lawyers for it. Who do you think will win?

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


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