Trans Pacific Partnership: lack of clarity about Investor State Dispute Settlement (ISDS)

“The rights given to investors are so open-ended and ambiguous that they allow for a lot of creative lawyering.”

Germany is in the midst of a $4.7-billion lawsuit occasioned by its decision to phase out nuclear power.

There’s nothing wrong with domestic courts reviewing government regulations, but outsourcing the responsibility to international tribunals is troubling

The Trans-Pacific Partnership: Good? or bad?, leisure guy 6 Oct 15 “……James Surowiecki in a brief New Yorker column describes some drawbacks:……….The case has yet to be decided, but the concerns it raises help explain President Obama’s embarrassing setback last week, when the House failed to give him fast-track authority over one of two big trade agreements that had been envisaged as a key part of his legacy. Both agreements—the Trans-Pacific Partnership, with eleven Asian and Pacific countries, and an agreement with Europe called the Transatlantic Trade and Investment Partnership—include provisions very like the ones at the heart of Australia’s fight with Big Tobacco. Known as Investor-State Dispute Settlement (or I.S.D.S.) provisions, they typically allow foreign investors to sue governments when they feel they have not received “fair or equitable treatment,” and to have their cases heard not by a domestic court but by an international arbitration tribunal made up of three lawyers.
These provisions have been opposed by an unusual coalition of progressives and conservatives, who contend that they will let multinationals override government policy, and, as Senator Elizabeth Warren put it, “undermine U.S. sovereignty.” On the other side, the Obama Administration and business groups insist that this is just fear-mongering. ………

these days signing such agreements is risky for countries. I.S.D.S. lawsuits used to be rare, but they’re becoming a growth industry. Nearly a hundred have been filed in the past two years, as against some five hundred in the quarter century before that. Investor protection, previously a sideshow in corporate law, is now a regular part of law-school curricula. “We’ve also seen an expansion in the types of claims that have been brought,” Lise Johnson, the head of investment law and policy at the Columbia Center on Sustainable Investment, told me. I.S.D.S. was originally meant to protect investors against seizure of their assets by foreign governments. Now I.S.D.S. lawsuits go after things like cancelled licenses, unapproved permits, and unwelcome regulations.
This mission creep has been abetted by the fact that the language of I.S.D.S. provisions is often vague. Jason Yackee, a law professor at the University of Wisconsin who specializes in international-investment law, told me, “The rights given to investors are so open-ended and ambiguous that they allow for a lot of creative lawyering.” Canada lost a case where it had rejected, after an environmental study, a proposed mining and marine-terminal project. The country was also sued when Quebec imposed a moratorium on fracking. Germany is in the midst of a $4.7-billion lawsuit occasioned by its decision to phase out nuclear power. Uruguay is facing a lawsuit from Philip Morris International, much like the one brought against Australia.
There’s nothing wrong with domestic courts reviewing government regulations, but outsourcing the responsibility to international tribunals is troubling. …………

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FROM The Financial Page JUNE 22, 2015 ISSUE

Trade-Agreement Troubles

BY JAMES SUROWIECKI. http://www.newyorker.com/magazine/2015/06/22/trade-agreement-troubles

October 7, 2015 - Posted by Christina Macpherson | Uncategorized

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