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  • Jan 14th, 2016 @ 6:31am

    Still Perplexed

    I'd like to address a few of the points made:

    - Is it "corporate sovereignty" or "government accountability"? I see little difference between enforcing government promises and those made by individuals or corporations.

    - That these agreements can make it expensive or difficult to democratically pass legislation or regulations is beside the point. The country, through its leaders, bound the government to a course of action. Why should it not pay for violating those promises?

    - We make the U.S. government pay for violating its promises (including most contractual promises) via the Administrative Procedures Act all the time. Or, similarly, what do you consider suing for violations of civil liberties?

    - "Expected profits" are the default form of damages in Anglo-American contract law. It is designed to put the party suffering from the breach of contract in the position she would be in absent the breach. This mode of calculations encourages "efficient breach" of contract.

    - Per above, if it efficient for the U.S. to "breach" a contract due to policy preferences/new information, it should do so. And can do so. If it pays for breaking its promises.

    - If the politicians are corrupt, having legislation or regulations overrode by international arbitration isn't counter-democratic but rather ambivalent to democracy.

    - Most attacks on international arbitration methodology apply to all treaties. Compare the power of an international commercial arbitration tribunal with the ICJ. Maybe you like neither.

    I've taken part in ICSID disputes. Protecting basic contract rights, and forcing the state (via taxpayers) to pay when breaching those contracts merely inflicts accountability on governments--much as we want in most other areas.

    Of course, if you think governments should be able to break contracts (what about the social contract?) with impunity, "corporate sovereignty" is indeed a problem.

    I'm not sure why Mike is on the other side of this policy item, although I see why one could hold the position.

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