US trade negotiators are now working to include Investor-State Dispute Settlement (ISDS) in as many new treaties as possible, including both of the massive new free trade deals coming down the pike. The Trans-Pacific Partnership, which President Obama signed in February 2016 and which Congress will likely ratify before he leaves office, already includes ISDS.
The Secret Tribunals That Corporations Use to Sue Countries, Moyers and company
These ad hoc courts are a main reason why so many politicians and activists are against trade agreements like the TPP. BY HALEY EDWARDS | SEPTEMBER 19, 2016 THIS IS AN EXCERPT FROM THE NEWLY PUBLISHED BOOK SHADOW COURTS: THE TRIBUNALS THAT RULE GLOBAL TRADE BY HALEY EDWARDS.
The environmental activist Jane Kleeb was driving down Highway 281 near Lincoln, Nebraska, on a gray day in January 2016, when she got a call from a reporter.
At the time, Kleeb was still riding high off of her success organizing local farmers, ranchers and environmentalists in opposition to the Keystone XL Pipeline, which would have carried petroleum products from Canada’s tar sands across the Nebraska plains to the Gulf of Mexico. Thanks to her and other activists’ efforts, President Barack Obama had announced in November 2015 that his administration would deny the Canadian company TransCanada permission to move forward with the project, ending an eight-year-long effort to get the pipeline built.
The reporter was calling to ask Kleeb about a new twist in the saga. Earlier that day, TransCanada had announced it was suing the US government for $15 billion on the grounds that Obama’s decision to block the project violated the North American Free Trade Agreement. It was the first Kleeb had heard of the suit. “I’m an organizer, so my reaction was, ‘When are the hearings? Where is this happening? Who’s the judge?’” she said recently. If TransCanada was challenging the decision in court, she wanted to be there. Could she protest on the courthouse steps? Arrange for a rally in a nearby town?
But that, Kleeb learned, was not how this case would go down. TransCanada wasn’t suing the US in a US court, or in a Canadian court for that matter. Its argument would not be heard by a judge, and the merits of the case would not be considered under the auspices of either country’s legal system. There would be no protest on any courthouse steps. Instead, the case would be heard by a tribunal, manned by three private arbitrators, operating under a supranational legal system that Kleeb had never heard of. “It was totally strange,” she told me. “A foreign company can sue us in some secret tribunal? How is that even possible?”
Investor-state dispute settlement, or ISDS, first appeared in treaties in 1969. The idea behind the mechanism was straightforward: If a foreign investor believed that his host country — the nation where his company was operating had violated an international treaty by seizing or destroying his factories, oil fields or other assets, he could file an ISDS claim directly against that country. He could do that without involving his own government and without having to wait endlessly for a developing country’s corrupt or biased court system to dispense judgment……..
ISDS was supposed to be a cool, efficient and apolitical dispute resolution system that kept powerful nations from interfering in the affairs of weaker countries, and that offered an extra layer of protection for foreign investors operating in countries with unreliable courts. But in the last 20 years, the mechanism has quietly changed, evolving into something much more powerful — and very political indeed……..
That modern interpretation has only cropped up in the last 20 years, but it has opened up a vast new gray area. Where ISDS claims were once about seized oil fields and bulldozed factories, now they are about tax increases and environmental regulations. Where is the line between a government’s right to regulate in the public interest and a foreign corporation’s claim to its own property?
US trade negotiators are now working to include ISDS in as many new treaties as possible, including both of the massive new free trade deals coming down the pike. The Trans-Pacific Partnership, which President Obama signed in February 2016 and which Congress will likely ratify before he leaves office, already includes ISDS. Whether the mechanism will be inserted into the Transatlantic Trade and Investment Partnership, linking the US and Europe, is a subject of controversy…….http://billmoyers.com/story/shadow-courts-secret-tribunals-trade/
