The Trans-Pacific Partnership clause everyone should oppose - By Elizabeth Warren

[FreakinDJ]

The Trans-Pacific Partnership clause everyone should oppose

By Elizabeth Warren

February 25, 2015


The United States is in the final stages of negotiating the Trans-Pacific Partnership (TPP), a massive free-trade agreement with Mexico, Canada, Japan, Singapore and seven other countries. Who will benefit from the TPP? American workers? Consumers? Small businesses? Taxpayers? Or the biggest multinational corporations in the world?

One strong hint is buried in the fine print of the closely guarded draft. The provision, an increasingly common feature of trade agreements, is called “Investor-State Dispute Settlement,” or ISDS. The name may sound mild, but don’t be fooled. Agreeing to ISDS in this enormous new treaty would tilt the playing field in the United States further in favor of big multinational corporations. Worse, it would undermine U.S. sovereignty.

ISDS would allow foreign companies to challenge U.S. laws — and potentially to pick up huge payouts from taxpayers — without ever stepping foot in a U.S. court. Here’s how it would work. Imagine that the United States bans a toxic chemical that is often added to gasoline because of its health and environmental consequences. If a foreign company that makes the toxic chemical opposes the law, it would normally have to challenge it in a U.S. court. But with ISDS, the company could skip the U.S. courts and go before an international panel of arbitrators. If the company won, the ruling couldn’t be challenged in U.S. courts, and the arbitration panel could require American taxpayers to cough up millions — and even billions — of dollars in damages.

If that seems shocking, buckle your seat belt. ISDS could lead to gigantic fines, but it wouldn’t employ independent judges. Instead, highly paid corporate lawyers would go back and forth between representing corporations one day and sitting in judgment the next. Maybe that makes sense in an arbitration between two corporations, but not in cases between corporations and governments. If you’re a lawyer looking to maintain or attract high-paying corporate clients, how likely are you to rule against those corporations when it’s your turn in the judge’s seat?

https://www.washingtonpost.com/opinions/kill-the-dispute-settlement-language-in-the-trans-pacific-partnership/2015/02/25/ec7705a2-bd1e-11e4-b274-e5209a3bc9a9_story.html

[Arizona Roadrunner]

1. TPP ISDS and the Democrats

As a person who has served on a local government’s Board of Directors, I am VERY concerned about the TPP ISDS court process with results being the surrendering of governmental sovereignty to corporate interests, foreign and domestic.
Basically due to secretive deliberations, this “judicial” process is designed to favor corporate over governmental concerns and interests. This agreement should not allow corporations to use this judicial process, but should demand they use our existing judicial process as it relates to governmental entities. How many state and local governments can afford to be involved in such a process? Just by the threat of suits through ISDS, a climate where governmental units cave in will be created. Look at what has happened under NAFTA and the WTO as it relates to our right to know where our food comes from. Look at how a Canadian corporation is using NAFTA to sue the U.S. on the Keystone project.
This will mean that political topics such as minimum wage increases and housing and zoning laws may be pre-empted by just the threat of a suit through the ISDS process. Look at what happened with Egypt when a corporation tried to use a process analogous to the ISDS to prevent Egypt from raising their minimum wage laws. (Veolia v. Egypt)
Therefore, I recommend, in the national interest, this agreement not be approved. When people find out how this can be used to prevent them from finding out things such as where products are made, etc., there will be charges of treason and the political process will never recover the trust of the American citizens.

By not voting against the TPP outright, the Democrats have given Trump a great opportunity to tie the Democrats to the "establishment" and "corporate America". He can also use this position to raise questions about the Democrats "really caring about you and your job". This is a loser position for the Democrats for the "down ticket" candidates too. By the way, the US Chamber of Commerce is not worried about Clinton being "currently" against TPP. They figure after she gets into office, she will find a way for her to be "currently" in favor of it.

http://www.huffingtonpost.com/robert-naiman/chamber-of-commerce-lobby_b_9104096.html

[Cryptoad]

36. so u are saying

Hillary is lying when she says she is against ttp?

[JEB]

41. Define lying.

[LiberalLovinLug]

49. Depends on the definition of "is"

[Motown_Johnny]

68. Not necessarily.

Her positions on trade seem to be fluid, seeking the path of least resistance at any given time.

She may very well be against it right now but that doesn't mean she will be against it after the election is over.

That doesn't make it a lie. It is simply her position evolving to fit the circumstances.

[99th_Monkey]

2. KnR - Has Warren weighed in with the Dem Platform Committee on this?

Would be good to clarify our opposition to this in our Platform.

Concerns about "embarrassing Obama" aside. From one standpoint,
he should be embarrassed.

[Hortensis]

12. I'm sure she's discussed much higher than that.

This is the clause that gets everyone excited, for good reason.

[Hoyt]

3. Back then Warren was still claiming the agreement would not be released until 4 years AFTER

ratification. She was quite wrong about that, as were many who believed such junk.

Also at that time, she was just recognizing the ISDS provisions, not realizing it had been in hundreds of trade agreements since 1959, including ones in which the USA was not involved. Arbitration is held under UN sanction rules, it's not something new. Fortunately, a year and a half later, she's learned a few things that many who believed that junk have not.

[Gabi Hayes]

5. it can't happen here, right? tell it to NAFTA, a JV version of TPP

http://www.nytimes.com/2016/01/07/business/international/transcanada-to-sue-us-for-blocking-keystone-xl-pipeline.html?_r=0

''OTTAWA — TransCanada said on Wednesday that it would seek $15 billion in damages over the Obama administration’s decision to cancel the company’s Keystone XL pipeline project.

The company is taking the unusual step of suing through the North American Free Trade Agreement, calling the decision “arbitrary and unjustified.” The Canadian business also filed a lawsuit in Houston asking that the decision be overturned.

“TransCanada has been unjustly deprived of the value of its multibillion-dollar investment by the U.S. administration’s action,” the company said in a statement. “Rather, the denial was a symbolic gesture based on speculation about the (false) perceptions of the international community regarding the administration’s leadership on climate change.”

The $8 billion Keystone XL pipeline would have connected Canada’s oil sands to American refineries on the Gulf Coast, offering the promise of improving prices. Canadian energy companies viewed the pipeline as the key to sustaining growth, since the United States buys the vast majority of petroleum produced by the oil sands.
''

NAFTA, WTO, TPP....cui bono?

[Hoyt]

6. TransCanada has also filed a suit in US courts out of desperation. They will be lucky to get

Last edited Mon Jul 4, 2016, 08:08 PM - Edit history (1)

standing under NAFTA. If they somehow do, it will be years before arbitration is finished and they'll likely won't get any damages. There is no chance the suit will change the rulings against the pipeline.

Anyone can file a suit over pipeline. You could too.

[bhikkhu]

24. There's lots of hoopla when the government is sued, but we've never lost an ISDS suit

as mentioned below, the Methanex vs US is a good example. A Canadian manufacturer took us to arbitration because California banned MTBE, one of their products. The arbiters decided that California had a right to regulate the product in the interest of public safety, and supported by the science; they ruled against Methanex, also awarding the US $4 million in legal costs. That was an ISDS suit.

[Bernardo de La Paz]

54. Lost several times to Canada on softwood lumber, though not strictly ISDS (was NAFTA / WTO). nt

[dynamo99]

67. never lost?

Then how come we had to stop labelling (beef and pork) meat with country of origin? Wasn't that due to a complaint under either NAFTA or WTO? Or did we just "not lose" because we caved ("settled&quot before a ruling?

[bhikkhu]

69. From a government fact sheet:

https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investor-state-dispute-settlement-isds

"Governments put ISDS in place for at least three reasons:

To resolve investment conflicts without creating state-to-state conflict
To protect citizens abroad
To signal to potential investors that the rule of law will be respected
Because of the safeguards in U.S. agreements and because of the high standards of our legal system, foreign investors rarely pursue arbitration against the United States and have never been successful when they have done so."

I've no special knowledge about how many different types of courts there are and am not sure how the WTO decision was made. It was a dispute between states in any case.

[sulphurdunn]

13. Well, if something was a bad idea

in the past and it's a bad idea in the present, then it's a bad idea. Having been a bad idea in the past doesn't necessarily make it a good idea now.

[Hoyt]

25. Not sure it was a bad idea in the past.

[sulphurdunn]

29. Maybe it wasn't,

but that doesn't make it a good idea now. I think all the trade deals since and including NAFTA have resulted in lost jobs, lower wages and an increased balance of payments deficit kept afloat by foreign investment and consumer debt.

[Hoyt]

30. Again, can't just look at things from your or my perspective. We live in big world and are 1%ers to

much of the world. Today, too many here are trying to hoard our wealth, rather than sharing it with countries like Vietnam where the only thing they've ever gotten from us is fire bombs.

[sulphurdunn]

33. I doubt the idea is to make war reparations

by allowing 13 year old Vietnamese girls to make Nikes for $0.20 an hour, working 60 hour weeks in sweatshops.

[dbackjon]

62. You mean those shoes with $1 material, .05 labor and sold for $150?

Because it would be too costly to make domestically?

[sulphurdunn]

70. Yea, that shoe.

The one that would sell for $150 even if it cost $100 to make, which, by the way, would still be a hell of a profit.

[Hortensis]

14. I knew that variations of that clause were in

prior agreements, though not back to the mid century, so it seems strange that she would not. I greatly admire what Warren is trying to do and would vote for her for president, but I don't forget she was a Republican until the mid 1990s, when that party finally became too wacko conservative for her.

Btw, she is excellent proof that moderate economic conservatives can be very progressive.

[Hoyt]

27. I like Warren, but on this issue she was either not well informed or preying on people not knowing.

[FairWinds]

48. My BS detector is ringing loudly . .

How about a source for your ridiculous statement?

That is in 2015 Warren "was still claiming the agreement would not be released until 4 years AFTER
ratification."

Did you think no one would notice?

[Hoyt]

64. She was still claiming that back then. Look up her comments if you don't believe it. In fact, there

are still people here today who say the documents have not been released, even after someone give them a direct link.

[FairWinds]

65. I call BS on ya . .

if your accusation is so accurate, you
should be able to provide a source.

Not the first time you've tried to pull stuff like this . .

[Gabi Hayes]

4. this is what TPP says at its own FAQ page:

Q: “Is it true that Investor-State Dispute Settlement (ISDS) would allow corporations to override laws, including environmental and public health regulations?

Answer

No. ISDS cannot change law in the United States or any other country. No government measure (federal, state, or local) can be blocked or reversed under the ISDS provisions or any other part of TPP. The United States would never negotiate away its right to regulate in the public interest, and we don’t ask other countries to do so either. This is true with regard to public health and safety, the financial sector, the environment, and any other area where governments seek to regulate.

Put simply, ISDS is a mechanism to promote good governance and the rule of law. ISDS protects basic rights — such as protection against discrimination and expropriation without compensation — akin to those enshrined in U.S. law and the Constitution. We already provide these protections at home to foreign and domestic investors under U.S. law. That’s why — although we are party to 51 agreements with ISDS — the U.S. has never lost an ISDS case. Our trade agreements ensure the same kinds of protections to U.S. businesses and investors operating abroad, where they face a heightened risk of discrimination and bias.

TPP includes a number of enhancements that strengthen the transparency and integrity of the dispute settlement process under ISDS. These include making hearings open to the public, allowing the public and public interest groups to file amicus curiae submissions, ensuring that all ISDS awards are subject to review by domestic courts or international review panels, ensuring that governments have a way to dismiss claims that are without merit on an expedited basis, and more.

In addition, after consultations with Members of Congress, the United States pushed for and secured additional safeguards that will establish a code of conduct for ISDS arbitrators and facilitate the dismissal of frivolous claims, among other first-of-their-kind provisions.

ISDS ensures that a wide range of American businesses — including small businesses — are protected against unfair discrimination when investing abroad. This will benefit the millions of American workers employed by these companies, as outside analysis shows that about half of ISDS cases are initiated by small- and medium-sized businesses, or individual investors.


https://medium.com/the-trans-pacific-partnership/frequently-asked-questions-on-the-trans-pacific-partnership-eddc8d87ac73#.mm2c0p9dz

so who to believe....putting my shekels on Warren at this point.

[Hoyt]

7. At the time OP article was written, she had not read the document. Probably hadn't read NAFTA, UN

arbitration rules in hundreds of trade agreements around the world. She's learned a lot in the 1.5 years since OP.

[Gabi Hayes]

8. I understand, and was researching for my warren link while you posted.

but what about the ISDS? TPP FAQ page puts the lie to all the other assertions that, indeed, UNAPPEALABLE arbitration by business-stacked boards will override local environmental, safety, etc., regs?

are those who contend the latter just making it up?

I've become a person who has a hard time knowing what to believe anymore, using, most of the time, the 'whose bread is buttered where' procedure to decide which party is describing whatever particular situation is being analyzed

[bhikkhu]

10. They are ignoring the existing ISDS decisions that contradict those fears

and failing to come up with any examples that validate those fears. The US has 50 agreements in place already stipulating ISDS arbitration, and has faced 17 challenges, winning each one.

The closest one to Warren concerns might be Methanex vs US ( http://www.state.gov/s/l/c5818.htm ), where California banned MTBE and the Canadian manufacturer brought the case to an ISDS court (under UNCITRAL rules) claiming damages. The arbiters dismissed the case, finding that the imposition of regulations was well within the right of the government and its duty to public health. They required Methanex to pay the government for legal costs.

[sulphurdunn]

20. The TPP FAQ raises a straw man.

ISDS would indeed not override national law. That was never the intent. What it is designed to do is make a country potentially pay a hefty price for enforcing its laws and thus act as an disincentive for it doing that by giving private parties carte blanch to sue governments and by sending those suits to arbitration by people who cannot be shown to be impartial. You may also rest assured that cooperative members of congress and state legislatures, willing to abrogate their laws, will benefit handsomely from corporate largess if the TPP passes.

[bhikkhu]

9. Another page with information:

Fact Sheet:

https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investor-state-dispute-settlement-isds

I appreciate Warren's perspective, but looking at the ISDS system itself, it seems to be an improvement on other means, and certainly an improvement on having nothing. If there were examples of abuse that would be one thing, but there there doesn't seem to be, and precedent seems to be more toward ISDS system respecting the rights of governments to regulate.

[Gabi Hayes]

11. thanks for the info,and I hope your prognostication proves

correct, cause I don't see any way this isn't going to be put into effect

the process itself, though, makes me ill, and seems to be the height of anti-democratic, zaibatsu-like steamrolling of so-called elected governments

[Bernardo de La Paz]

15. 17 months old. . . . nt

[1StrongBlackMan]

52. The primary battle continues ...

[Don Draper]

16. If elected president, Hillary will almost certainly sign the TPP into law

after she "fixes" it. This will be disastrous for the Democratic Party in the long run as the party (and it's head) will be blamed as American jobs are lost and the economy tanks.

If the Democratic Party was smart, they would have staunchly opposed the TPP.

I gotta say, it really hurts when your own team pushes for such regressive legislation.

[floriduck]

61. I hope she eliminates Malaysia from the agreement since human trafficking is legal there. I cannot

imagine why in hell this was never addressed by the administration when corporations wrote TPP.

[FreeJoe]

17. Two quick questions...

How is this different from other trade agreements arbitration clauses?

How would you set up the agreement so that countries couldn't create laws specifically designed to undercut the trade agreement that they signed?

[Rex]

19. Make some kind of enforceable penalty for breaking trade laws? nt

nt

[FreeJoe]

21. Isn't that what this is about?

Isn't the ISDS the enforcement process?

[Rex]

22. You tell me.

What in it would stop countries from violating their own laws?

[Sgent]

43. They could be sued

using the ISDS procedure, and if its proven that they have violated the treaty, be subject to fines or economic sanctions.

[Rex]

18. You mean I shouldn't just support things, because my friends are doing it?

Or because the TVEE tells me what to think? That is kinda original. Well no matter what, time for Warren to get under the bus. Her words are inconvenient.

[George II]

23. February 2015 - is that clause still in the TPP 18 months later?

[SusanLarson]

26. That is why Trans Canada is suing the US for $15,000,000,000

I call BS....

OTTAWA — TransCanada said on Wednesday that it would seek $15 billion in damages over the Obama administration’s decision to cancel the company’s Keystone XL pipeline project.

The company is taking the unusual step of suing through the North American Free Trade Agreement, calling the decision “arbitrary and unjustified.” The Canadian business also filed a lawsuit in Houston asking that the decision be overturned.

http://www.nytimes.com/2016/01/07/business/international/transcanada-to-sue-us-for-blocking-keystone-xl-pipeline.html

This is a preview of the ISDS

But the measure, which grew out of earlier trade provisions to compensate corporations after a foreign government expropriated their assets, does allow them to seek a range of damages, including unrealized profits.

[Hoyt]

28. I think courts and ISDS will call it the same.

[joshcryer]

32. And they will lose.

[joshcryer]

31. The US has never lost an ISDS case.

[Chan790]

35. There is a first time for everything.

Regardless of that I'm going to remain opposed to TPP until ISDS goes away. Preferably until FTAs in general go away and the Democratic party reverses course on policy we've been on the wrong side of since FDR was President.

Kill all the Free-Trade Agreements!!

[joshcryer]

38. Sure, but US standards are the baseline.

If we lost then I'd be fine with it, because we probably messed up bad.

Warren's argument is fine from a protecting the little guy point of view, the non-American little guy.

[brentspeak]

50. As if past judgements in any way affect future cases

And the TPP's ISDS clauses grant private investors far more power than any previous ISDS power.

Doesn't matter anyway: the TPP's ISDS clauses were really put there to deter the US government from actually administrating existing federal regulations which might affect investors' profits -- as well as dissuading future Congressional regulatory legislation from ever being proposed. It's all about the threat of lawsuits, and it's all a scam on the American people.

[Bernardo de La Paz]

53. US has lost several times for its actions against Canada re softwood lumber

It may not have been exactly the ISDS, but the NAFTA and WTO mechanism are similar.

[Egnever]

34. An unfortunate article from Warren

under TPP what she describes should not be possible if this portion of the agreement has any standing whatsoever. She probably had not actually read the document when she made this comment.

https://ustr.gov/sites/default/files/TPP-Final-Text-Environment.pdf

2. The Parties recognise the sovereign right of each Party to establish its own
levels of domestic environmental protection and its own environmental priorities,
and to establish, adopt or modify its environmental laws and policies accordingly.

[modestybl]

46. So, you are claiming EW doesn't know what she is talking about?

... she's been at this sort of thing for a long time.

If the laws and regulations of a country are not to be challenged, what is the function of the
Investor-State Dispute Settlement? Some supra-national "court" infested with corporate lawyers and trade lobbyists who get to decide what constitutes a technical barrier to trade (or rather, a hindrance to a corporation's possible maximum profits?)

[Egnever]

55. Clearly she didn't when she wrote that

[modestybl]

57. In what way..

... seems pretty straight forward. The ISDS is a supra-national court lousy with corporate lawyers and trade lobbyists. Is that what we want to subject our laws and regulations to?

[Egnever]

58. That the US has never lost a case in

So all the scaremongering is just that.

[Egnever]

59. And more actual text to point out the nonsense that that claim is

1. Unless the disputing parties agree otherwise, the tribunal shall comprise
three arbitrators, one arbitrator appointed by each of the disputing parties and the
third, who shall be the presiding arbitrator, appointed by agreement of the
disputing parties.

Each party to the suit appoints its own person to the panel with a third person agreed upon by both parties. Hardly a situation stacked with corporate lawyers bent on destroying the sovereignty of the US.


Clearly she had not read the agreement when she wrote that article. Cause if she did she is outright lying about it.

[Cryptoad]

37. Oh,,,,,,, the Sky is Falling and its name is TTP

geeez.....somebody stirring the Shit Pot Again!

[DirkGently]

39. TPP is not a trade agreement" so much as a treaty.

A treaty in which governments cede power and authority to business interests.

No accident the terms are so secret.

[Sgent]

44. Real secret

https://ustr.gov/tpp/#text

[DirkGently]

45. Top-secret for years, as we all know. Nice link though!

[Egnever]

56. The same as every other negotiation throughout history

As is evident from the link once the details were worked out it was published for all to see months before any vote to ratify it.

[DirkGently]

71. Not before the vote to fast-track it though, eh?

The terms were secret because the terms were terrible, period.

Nice try though.

[Egnever]

72. So what? Fast track doesn't change a thing

Just can't amend the agreement. What difference does that make? Still has an up or down vote.

All adding an amendment would do is force the agreement to be renegotiated again.

What's wrong with a pass or fail vote? Eventually it will come to that anyway. Fast track just saves time.

[Quantess]

42. K &R

[IgelJames4]

47. As usual, Warren is spot on with her assessments

The TPP is just bad for everyone involved, and will only hurt our workers.

[FairWinds]

51. And Remember the 1993 NAFTA vote and . .

what happened to the Dems in the 1994 congressional elections
that immediately followed . .

The Dems lost the House for the first time in 40 years !!

And that is how we got Hastert, Gingrich, gerrymandering and more.

If the Dems back the TPP, look for an ugly re-play and more big
congressional losses by the Dems.

And the Hillary supporters above seem not to care a bit.

[FairWinds]

60. And DON'T Call The TPP . .

"Free Trade"

It is actually anti-free trade . .

From my main man - Dean Baker

http://cepr.net/blogs/beat-the-press/there-they-go-again-it-s-not-free-trade

[pansypoo53219]

63. more crapitalism.

[avaistheone1]

66. Excellent catch Senator Warren.