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Are you referring to the part about corporations being able to sue nations if they take any measures that they can claim hurts their business? [0] I assume tha

by gavinpc 10y ago

Are you referring to the part about corporations being able to sue nations if they take any measures that they can claim hurts their business? [0] I assume that the "ISDS" that Warren refers to in the linked article (which was written before the draft went public), is chapter 28, "Dispute Settlement," in the draft at readthetpp.com. [1] This is already happening, at least with tobacco companies. "Last Week Tonight" did a piece on this.[2] [0] 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 https://www.washingtonpost.com/opinions/kill-the-dispute-set... [1] https://www.readthetpp.com/ch28.html https://www.readthetpp.com/ch28.html [2] https://www.youtube.com/watch?v=6UsHHOCH4q8 https://www.youtube.com/watch?v=6UsHHOCH4q8

cheald 10y ago
> if they take any measures that they can claim hurts their business? This is just flat-out false. The second link you provided clearly lays out the criteria for resolution of a conflict via the ISDS: > the dispute settlement provisions of this Chapter shall apply...wherever a Party considers that an actualor proposed measure of another Party is or would be inconsistent with the obligations of this Agreement or that another Party has otherwise failed to carry out its obligations under this Agreement; or wherever a Party considers thata benefit it could reasonably have expected to accrue to it under [this agreement] is being nullified or impaired as a result of the application of a measure of another Party that is not inconsistent with this Agreement. That is, the ISDS is for resolution of conflicts which are alleged to be in violation the the treaty, not for "any measures that they can claim hurts their business". The Phillip-Morris case you cite is because PM alleges that the Australian government expropriated their intellectual property without due compensation. This post[0] has a very nice breakdown of ISDS cases, rationale, and outcomes. Also give this thread[1] a read - SavannaJeff is a well-known professional trade economist, and has a lot of very valuable expert insight on the TPP that's worth reading. [0] https://www.reddit.com/r/europe/comments/390p5l/over_2000000_europeans_have_now_signed_the/cs0hyfx https://www.reddit.com/r/europe/comments/390p5l/over_2000000... [1] https://np.reddit.com/r/TrueReddit/comments/2srn0u/trade_secrets_why_will_no_one_answer_the_obvious/cnsffwo https://np.reddit.com/r/TrueReddit/comments/2srn0u/trade_sec...
- gavinpc 10y ago
  Okay, thanks for the correction. I read the posts you linked and understand the issue better. Although we have a different definition of clearly. And I admit that I still have trouble seeing the plaintiffs in these cases as any kind of victims. The first of your links states that companies can use the mere existence of an ISDS mechanism to produce a real "chilling effect" on countries not even part of the dispute. Is that "fair" to the people of those countries? But okay, there are two sides. And we know which side the "sensationalist media" is on. And also the people of Europe, who (according to your second link) drove the EU to qualify and then scuttle ISDS language in the TTIP after "a lengthy public consultative process." So I come away wondering what is the value proposition for the public. Or is this provision all carrot?
  - cheald 10y ago
    > I admit that I still have trouble seeing the plaintiffs in these cases as any kind of victims. The allegations are breach of contract by the government (Veolia), local government changing the rules after signing a contract in order to make it difficult or impossible for the company to fulfill the contract (Vattenfall), and allegations that the government seized a company's IP without due compensation (Phillip-Morris). If the claims hold up, those are three very good examples of companies being victimized by local governments. The "chilling effect" that you mention is in regards to the Phillip-Morris case, where the author speculates that PM was attempting to use the suit to discourage similar behavior in other signatory countries. It didn't work out for them[0] - the system did what it was supposed to in that case, and (properly) no chilling effect was produced. We cannot simply say that because any threat of legal action may have a chilling effect that the possibility for companies to seek legal remedies is a bad thing. > So I come away wondering what is the value proposition for the public. Or is this provision all carrot? The value proposition is that by having an arbitrating entity that is not likely to be under the thumb of this or that sovereign entity, companies are much more willing to conduct business in those countries when they have some assurance that their disputes against a local government won't be heard and denied by a sock puppet court controlled by that same government. It's much the same reason that we domestically use our judicial system and neutral third-party arbitration to resolve disputes, rather than just relying on counterparties to self-police themselves. [0] http://www.theguardian.com/australia-news/2015/dec/18/australia-wins-international-legal-battle-with-philip-morris-over-plain-packaging http://www.theguardian.com/australia-news/2015/dec/18/austra...

by gavinpc 10y ago

cheald 10y ago

> if they take any measures that they can claim hurts their business? This is just flat-out false. The second link you provided clearly lays out the criteria for resolution of a conflict via the ISDS: > the dispute settlement provisions of this Chapter shall apply...wherever a Party considers that an actualor proposed measure of another Party is or would be inconsistent with the obligations of this Agreement or that another Party has otherwise failed to carry out its obligations under this Agreement; or wherever a Party considers thata benefit it could reasonably have expected to accrue to it under [this agreement] is being nullified or impaired as a result of the application of a measure of another Party that is not inconsistent with this Agreement. That is, the ISDS is for resolution of conflicts which are alleged to be in violation the the treaty, not for "any measures that they can claim hurts their business". The Phillip-Morris case you cite is because PM alleges that the Australian government expropriated their intellectual property without due compensation. This post[0] has a very nice breakdown of ISDS cases, rationale, and outcomes. Also give this thread[1] a read - SavannaJeff is a well-known professional trade economist, and has a lot of very valuable expert insight on the TPP that's worth reading. [0] https://www.reddit.com/r/europe/comments/390p5l/over_2000000_europeans_have_now_signed_the/cs0hyfx https://www.reddit.com/r/europe/comments/390p5l/over_2000000... [1] https://np.reddit.com/r/TrueReddit/comments/2srn0u/trade_secrets_why_will_no_one_answer_the_obvious/cnsffwo https://np.reddit.com/r/TrueReddit/comments/2srn0u/trade_sec...

gavinpc 10y ago
Okay, thanks for the correction. I read the posts you linked and understand the issue better. Although we have a different definition of clearly. And I admit that I still have trouble seeing the plaintiffs in these cases as any kind of victims. The first of your links states that companies can use the mere existence of an ISDS mechanism to produce a real "chilling effect" on countries not even part of the dispute. Is that "fair" to the people of those countries? But okay, there are two sides. And we know which side the "sensationalist media" is on. And also the people of Europe, who (according to your second link) drove the EU to qualify and then scuttle ISDS language in the TTIP after "a lengthy public consultative process." So I come away wondering what is the value proposition for the public. Or is this provision all carrot?
- cheald 10y ago
  > I admit that I still have trouble seeing the plaintiffs in these cases as any kind of victims. The allegations are breach of contract by the government (Veolia), local government changing the rules after signing a contract in order to make it difficult or impossible for the company to fulfill the contract (Vattenfall), and allegations that the government seized a company's IP without due compensation (Phillip-Morris). If the claims hold up, those are three very good examples of companies being victimized by local governments. The "chilling effect" that you mention is in regards to the Phillip-Morris case, where the author speculates that PM was attempting to use the suit to discourage similar behavior in other signatory countries. It didn't work out for them[0] - the system did what it was supposed to in that case, and (properly) no chilling effect was produced. We cannot simply say that because any threat of legal action may have a chilling effect that the possibility for companies to seek legal remedies is a bad thing. > So I come away wondering what is the value proposition for the public. Or is this provision all carrot? The value proposition is that by having an arbitrating entity that is not likely to be under the thumb of this or that sovereign entity, companies are much more willing to conduct business in those countries when they have some assurance that their disputes against a local government won't be heard and denied by a sock puppet court controlled by that same government. It's much the same reason that we domestically use our judicial system and neutral third-party arbitration to resolve disputes, rather than just relying on counterparties to self-police themselves. [0] http://www.theguardian.com/australia-news/2015/dec/18/australia-wins-international-legal-battle-with-philip-morris-over-plain-packaging http://www.theguardian.com/australia-news/2015/dec/18/austra...