Do any of the TPP defenders want to defend ISDS?

[eridani]

Go on--give it your best shot.

[pampango]

1. The concept of international arbitration of trade disputes was an FDR concept designed

to promote trade by getting away from the existing system in which each country decided disputes in its own favor which caused hard feelings among countries and a breakdown in trade.

The trade dispute arbitration process did not exist under FDR's republican predecessors. He thought is was a better system.

If there is a better system for resolving disputes we should use that instead.

[seabeckind]

2. You call that a defense?

I'll raise you 2 Kennedy's and a Carter.

FDR has nothing to do with this.

And if he did, I doubt very much if he would let a couple of multinational megacorporations decide how to divide the people herd.

https://en.wikipedia.org/wiki/Argument_from_authority

[pampango]

3. You can call it what you want. FDR certainly had something to do with the concept of arbitration

in trade disputes in his International Trade Organization. He, not some conservative republican (their base still hates 'Obamatrade' because it is a 'liberal globalist' reduction in our national sovereignty - while, of course, many liberals think it is a 'conservative globalist' reduction in our national sovereignty), originated the idea and Truman negotiated it to completion though, obviously, neither has nothing to do directly with the TPP and may well not have agreed with its specifics.

[seabeckind]

4. Keep digging

I'm sure you've got an ace somewhere.

The question isn't whether there should or shouldn't be arbitration

but exactly who gets to do the arbitrating.

BTW, citing some other authority on some somewhat related topic isn't a defense.

[randome]

5. So you're against ISDS because of who gets to do the arbitrating? Who is that?

Personnel well-versed in trade issues, perhaps?

[seabeckind]

7. We, the people.

Your argument is the same one used to justify having an open door between business and gov't.

That only a business person can know the intricate details of business.

A man can only serve one master.

[randome]

9. Trade issues can be extremely complex.

I can understand having a human rights representative in place to advocate for unions, fair wages, etc. But all signatories to this are bound by public law, which means if a country passes a law and applies it equally to their own companies as well as to foreign companies, there is no recourse to object.

So, for instance, no corporation is going to sue America for not allowing it to pay substandard wages. They can't since that applies to everyone operating within our borders.

The entire TPP is an attempt to unite the nations of the world even more. The more bound we are by public law -not backroom deals- the better off we are, generally speaking.

[Hoyt]

11. Exactly.

[Hoyt]

10. Those UN arbitration rules are so biased that every country wants the ISDS in

trade agreements to attract investment, jobs, taxes, etc. It's a terrible thing that has been in trade agreements since 1959. Suddenly Nationalists and America Firsters have discovered these corporatist plans to take over the world.

[randome]

16. And the EU wants to improve on the system with appeals tribunals, transparency and other changes.

ISDS isn't a perfect system but it's a good one that can be improved upon. And that's what we should be working toward, not trying to withdraw from the international community.

[Hoyt]

17. No disagreement from me.

[eridani]

24. Corporate lickspittles. How about regular courts with judges and stuff? n/t

[randome]

28. Because 'regular' courts and judges don't have the breadth of knowledge to deal with trade issues.

Each side in arbitration gets to pick one judge for the ISDS dispute. A third judge is selected based on agreement.

You do understand that arbitration occurs between 'warring' parties, right? Or are you saying that a country fighting against a corporation's claim will pick a judge and agree to another because it wants to lose?
[hr][font color="blue"][center]Stop looking for heroes. BE one.[/center][/font][hr]

[eridani]

30. I'm saying that corporations should have no rights whatsoever that supercede those of real people

ISDS was designed by and for corporations--fuck labor and the environment.

[pampango]

6. "The question isn't whether there should or shouldn't be arbitration but exactly who gets to do

the arbitrating."

We agree. There can be good ISDS and bad ISDS depending on who gets to do the arbitrating plus the nature of the rules they are arbitrating. Even 'good' arbitrators would not produce a good ISDS if it were enforcing an agreement composed of bad regulations. We need both a good agreement and a good arbitration process to produce a fair ISDS.

Before FDR then Truman there was no ISDS (good or bad). The OP did not specify the ISDS in TPP so I took it to mean ISDS in general which is widespread.

[seabeckind]

8. So who do the arbitrators work for?

In fact, in the case of all of our gov't regulations (or non-regulations), just who has been making the rules?

I seem to remember a banking problem a couple years ago.

[pampango]

12. Indeed part of the problem. If corporations control the national government,

avoiding international agreements in order to empower the national government does not solve the problem.

The key is having progressive rules to enforce then to have them enforced fairly. The level at which this occurs is not as important.

In the recent Brexit, voters got rid of EU regulations on labor rights and the environment. Those regulations will be replaced by a Conservative government that can fairly be said to not be motivated by concerns for labor rights and the environment. For me, the international approach was better on this case.

In other cases national governments, at least those not controlled by corporations (like the US and the UK) might be be better on liberal issues than an international organization is.

The most important considerations are the nature of the rules and their fair enforcement. If it can be done cooperatively by countries that is better. Liberal regulations are harder to enforce when countries compete more than they cooperate.

[randome]

13. Well said.

[yallerdawg]

14. ISDS under TPP.

21st Century policies!

Not your father's last century free trade agreement!

• Explicit language underscoring right to regulate in the public interest.
TPP includes new language underscoring that countries retain the right to regulate in the public interest, including to protect public health, safety, financial stability, and the environment. TPP will also include a separate, explicit recognition of health authorities’ right to adopt tobacco control measures in order to protect public health.

• Burden on claimant.
A new provision in TPP clarifies that the claimant — the investor bringing the case against the government — bears the burden to prove all elements of its claims, including claims of breach of the minimum standard of treatment (MST) obligation, an obligation which guarantees investors due process and certain other protections in accordance with customary international law.

• Dismissal of frivolous claims.
TPP expands existing rules discouraging frivolous suits by permitting governments to seek expedited review and dismissal of claims that are “manifestly without legal merit.”

• Investor “expectations” aren’t enough.
TPP explicitly clarifies that an investor cannot win a claim for breach of the MST obligation merely by showing that a government measure frustrated its expectations (for example, its expectations of earning certain profits).

• Arbitrator ethics/code of conduct. TPP countries will establish a code of conduct for ISDS arbitrators that will provide additional guidance on issues of arbitrator independence and impartiality.

Much, much, much more at: https://medium.com/the-trans-pacific-partnership/investment-c76dbd892f3a#.q19zmyw5k

[randome]

15. Bravo!

The reflexive claim that nearly all international cooperation diminishes our nation-hood or manhood or whatever sounds far too much like the right wing.

We may as well withdraw from the United Nations while we're at it. No one's gonna tell Uncle Sam what to do!

Here we are voluntarily giving up some sovereignty in pursuit of a grander goal: greater international cooperation. That's a good thing.

[Elwood P Dowd]

18. So says the Wall Street controlled USTR.

The same Wall Street controlled USTR that has lied to us about countless fake free trade deals the past 25 years.

[yallerdawg]

19. Except we can read the agreement to be signed.

Very difficult to lie when the document is available for anyone to read.

[seabeckind]

20. Why was it so difficult to see it during the negotiations?

Why did a "leak" have to reveal it?

[Hoyt]

21. Because all the countries involved are NEGOTIATING and don't need a bunch of rabid neophytes

second guessing everything they are doing.

If it were just the USA negotiating "behind closed doors," it would be one thing. But it's not, even the most "liberal" countries in the world like Scandinavian countries negotiate in private. Now if the final agreement were not released as the opposition was saying, that would be another thing again -- remember how we were repeatedly told that the final agreement wasn't going to be released for 4 years AFTER ratification which was shown to be BS when it was released prior to ratification.

The question is -- Is the final document beneficial to the parties and the world? I think it is in many ways, not just trade.

[randome]

23. Yeah, that completely ludicrous proposition that the contents would be secret.

It only showed how little some extrapolate from their own scenarios. How would something that is secret be enforced?
[hr][font color="blue"][center]Stop looking for heroes. BE one.[/center][/font][hr]

[randome]

22. Precisely because of the nationalistic fervor it kicks up.

Something this complicated is not given over to the general public to decide. It's easier to bake a cake with a dozen bakers than it is with three hundred. It's why the general public elects leaders to put things like this together.

Now that the draft is available for review, this is the time for public review and comment.
[hr][font color="blue"][center]Stop looking for heroes. BE one.[/center][/font][hr]

[eridani]

26. Those silly little people that don't like the race to the bottom?

Good thing that our 1% betters can show us the way.

[eridani]

25. I guess you ae thrilled with the $15 billion suit on behalf of Keystone XL?

Corporations that want more of that can just go fuck themselves.

[Recursion]

34. Personally, yeah, I am: we broke our own rules and made oil transport less safe

I think the denial was a bad, politically motivated decision catering to low-information voters who didn't even realize that the XL was a shortcut to an existing pipeline.

That said, the suit will probably fail, unfortunately.

[Tortmaster]

27. Scare-mongering about the ISDS works in only a ...

... few corners of the internet.

1. The United States is 13-0 in NAFTA arbitration matters. It did not kill Democracy.

2. The United States has been party to trade arbitration procedures for about 60 years, with the GATT and WTO provisions. Those did not kill Democracy.

3. If the United States doesn't like what the arbitration panel decides, it doesn't have to do it. This is kind of like what lawyers call non-binding arbitration. For example, if a trade arbitration is lost, the U.S. could offer an alternative, such as $1.00 off any tariff on each pallet of widgets.

4. Arbitration has become a fixture in American courts, especially the Federal system and family law courts. It was adopted to save litigants time and money and to ease the burden on our court system, which is paid for by taxpayers.

5. Our court system is already over-burdened.

6. Do you trust the court systems in Korea, Singapore, Brunei, Peru and Vietnam? What if your job depended on it?

7. The parties to the arbitration usually agree to the arbitrators, or they pick from a list, so there is a better chance to have an impartial hearing.

8. Arbitration would ensure you have somebody knowledgeable about trade. Most Federal judges can bone up on it over time, but a few of them, especially the Bush appointees, are idiots. And then there's the unknown factor with foreign judges.

9. If we went strictly with lawsuits, then one nation would have a "home field" advantage every time.

10. Three arbitrators are more likely to get a result right rather than one judge or a jury.

Why do you want to clog up our court dockets and those in Brunei, Vietnam, Singapore, Korea, Japan et al.?

[Tortmaster]

29. Another response to the OP is this:

As an attorney who has sued big corporations, I can tell you that big corporations have more power in the civil litigation system. They can prolong discovery, or inundate you with an avalanche of paper. They can hire 10 attorneys to handle the case, and they can buy the fanciest exhibits and pay for the priciest experts. They can afford the best local counsel in any jurisdiction. They can hire jury selection experts, and they have the time and budget to run through mock trials. They have a massive advantage in front of a jury or a judge, especially if they are going up against an Assistant State Attorney or a small team with resources limited by a budget.

Why would you want to give corporations such an out-sized advantage?

[eridani]

31. ISDS was written by and for corporations

No corporation should have rights superceding those of real people

[Tortmaster]

32. At least 15% of the American people writing the TPP ...

... were union members. And, no, they don't supersede the rights of human people. The following is about Senator Sanders' critique of the ISDS mechanisms:

8. HE IGNORED THE HISTORY OF ARBITRATION AGREEMENTS.

He mentions in some detail the likely TPP ISDS mechanisms--the arbitration provisions commonly found in trade agreements or cell phone contracts or credit card agreements--as if they were handing away American sovereignty. He is smart enough to know better. There have been 13 arbitration matters brought before tribunals on account of NAFTA. The United States is 13-0 in them.

You can search the WTO and GATT databases for many other, older dispute resolutions and the dispute resolution procedures, and you will find that many of them are unresolved. Some of the unresolved disputes are thirty years old or more. That's because the United States does not have to agree to any panel decision. So, the mechanisms have been basically unenforceable. (This is akin to what lawyers call non-binding arbitration.).

Moreover, even if out of the goodness of its heart America decides to try to resolve an issue, the arbitration procedures allow for alternative remedies. For example, if there is an American law that states that imported meat must show the country of origin, and a trade partner objects and somehow manages to win the dispute, the United States can offer to knock off $1.00 on custom charges for every full pallet of electronic products or sausage imported from that country.

This was another scare tactic on the part of the Senator from Vermont; it is not the demise of Democracy in America. There has been an approximate 64-year history of ISDS or ISDS-like mechanisms. Our Democracy remains intact. That history should not be ignored in favor of alarmist rhetoric.

Finally, please note that in Senator Sanders' statement about the TPP, reproduced in full below the fold, five of the ten reasons he claims the TPP "would hurt American families" deal with the ISDS arbitration provisions. This argument is similar to the "Death Panels" argument the GOP raised against ObamaCare. It is that baseless.

At the link you, can find other links to the citations found in the piece. Cheers!

[Recursion]

33. Sure: third-party arbitration over trade disputes is a good thing

And much better than countries' unilaterally tariffing each other.

They are how trade deals have worked since the 1930s, and they've got a pretty good track record.