By Paul Garver
No, the acronym ISDS does not refer to the Islamic State (ISIS) — though ISDS may pose an equally grave menace to the world in the long run.
ISDS stands for Investor-State Dispute Settlement. Thanks to the recent WikiLeaks publication of the classified draft Investment Chapter of the Trans-Pacific Partnership (to have been kept secret for four years after the entry into force of the TPP agreement), we know that the ISDS is to be the unaccountable supranational court for multinational corporations to sue sovereign governments and obtain taxpayer compensation to recover the alleged loss of “expected future profits.”
If that sounds complicated, consider this March 2015 case the Sierra Club cites from the use of the same provision under NAFTA. In the case of Bilcon v. Government of Canada, a New Jersey-based mining company was awarded up to $300 million in damages from the government of Canada. Canadian taxpayers are being assessed because the government of Nova Scotia conducted an environmental impact study that concluded that blasting basalt from Bilcon’s proposed open pit mine in the Bay of Fundy would irretrievably harm endangered species of whales and salmon, damage the environment and violate core values of the surrounding communities.
Bilcon filed a complaint under NAFTA that Nova Scotia did not have the right to rely on its own environmental assessment and insisted on its right to pursue its basalt mining project. Under NAFTA’s ISDS provision, the case eventually went to a three-person panel of private arbitrators, two of whom ruled in favor of awarding damages to Bilcon. The third lawyer on the trade tribunal dissented, pointing out that the majority on the ISDS panel were misinterpreting Canadian law and chilling the possibility that any Canadian governmental jurisdiction would dare pass environmental protection legislation in the future for fear of incurring massive payouts to foreign corporations to compensate them for their expected future profits.
Canada has no right to appeal this decision. A private panel of arbitrators is creating binding supra-national law with no consideration for the public interest or laws democratically enacted.
Bilcon vs. Canada is no exception. Under a similar ISDS provision, the government of Ecuador is being sued by Chevron to evade a ruling by the government of Ecuador fining the company and requiring it to clean up its massive environmental contamination. Philip Morris is trying to use ISDS to stop Uruguay from implementing new tobacco regulations and to sue Australia for implementing plain packaging for tobacco products.
Under the Investment Chapter of the TPP, corporations based in any of the 12 countries party to the treaty can go to an ISDS panel of arbitrators to claim that legislation or regulation in another country deprives that company of “expected future profits.” Thereby they would evade and circumvent the domestic courts of the country in question, and if successful there could be no appeal of the decision of the arbitration panel, typically composed of corporate lawyers. In effect, international law would be privatized and increasingly be dominated by global corporations and their hired law firms.
Senator Elizabeth Warren asserts that the ISDS clause in itself is sufficient cause to reject the TPP agreement. Replacing our legal system with a complex, unnecessary and unaccountable system of international private tribunals should be opposed by progressives and conservatives alike.
Teamsters General President James Hoffa agrees:
The 12-nation Trans-Pacific Partnership (TPP) has for years been shrouded in mystery. WikiLeaks gave U.S. workers a real gift when it pulled back the curtain on a portion of the proposed trade deal that shows what a boondoggle the agreement would be for big business. Language included in the Investor-State Dispute Settlement (ISDS) chapter of the TPP would grant new rights to companies to challenge limitations and exceptions to copyrights, patents and other intellectual property. That means corporations could sue the U.S. or other countries included in the deal if they didn’t like their laws. Such challenges would be handled by an unaccountable international arbitration forum. And taxpayers would end up paying the tab if the private sector wins. https://talkingunion.wordpress.com/2015/03/27/teamsters-call-for-defeat-of-fast-track-and-tpp/
Of course there are numerous other crucial reasons to oppose the TPP and the Trade Promotion Authority (“Fast Track”) legislation that would grease its way through the U.S. Congress. These arguments were summarized last year on this blog at http://www.dsausa.org/why_obama_and_big_business_want_fast_track_trade_legislation
Nothing much has changed except that the TPP negotiations are now nearly completed and the clock is running out for time on the legislative schedule to ram through Fast Track Authority in 2015. It is therefore likely that a Fast Track bill will be introduced into the Senate and House during the week of 13-17 April, and that proponents will pull out all the stops to pass it as quickly as possible.
Favoring the passage of Fast Track and the TPP is the grand coalition of the Republican majority, a lame-duck President Obama anxious to secure his legacy (as a champion of business?) and the massively arrayed lobbyists of the Chamber of Commerce and Business Roundtable, who have made passage their chief legislative goal of 2015 and are prepared to spend what it takes to succeed. The Obama cabinet members are all out lobbying hard for Fast Track/TPP, and most of the mainstream media will join in.
Opposed are a more diverse and less well-funded coalition of an unusually united labor movement, environmentalists, fair trade advocates, citizens’ action groups, progressive legislators and organizations. We have only one real asset – the fact that the large majority of the American people are highly suspicious of the negative consequences of another “NAFTA on steroids.” The vote in the House could be very close, since at least a few Tea Party Republicans will break ranks to avoid giving President Obama a “victory.” An Astroturf group called “Progressive Coalition for American Jobs” has hired former Massachusetts governor Deval Patrick, Dallas mayor Ron Kirk and former Washington governor Christine Gregoire to shill for the trade deals. The obvious hope is to use loyalty to President Obama to win the support of some members of the Congressional Black Caucus who would normally vote with the Congressional Progressive Caucus against legislation of, by and for the 1% that goes against the interests of their constituents.
In the Senate, we can only hope that a few champions of the people like Bernie Sanders, Elizabeth Warren and Sen. Sherrod Brown of Ohio will filibuster long enough to allow the 99% to be mobilized against this anti-democratic corporate power grab. Widespread protest actions still can defeat the corporate coup, since popular resistance leading to even a few weeks’ delay will throw sand into the gears. The Teamsters and Turtles combo worked in 1999. We are better organized now.
The Citizens Trade Campaign that coordinates the effort of the broad oppositional coalition is calling for a global day of action against fast track centered on April 18 and the days before and after. Rallies, protests, phone banks and canvasses have already been announced for at least 50 American cities, including sponsorship by labor unions and others of the hundreds of national and local groups supporting the campaign. Resource materials and an updated list of actions can be found at www. citizenstrade.org.
On Saturday, a coalition of labor, environmental, consumer, faith, farm, business and other groups is staging a national day of action to stop Fast Track. Click here to find a Fast Track action near you.
Paul Garver is a retired organizer for the IUF and for SEIU and has been active in DSA for more than three decades
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