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What's your proposed alternative to this sort of international tribunal? To me it feels like obviously the correct solution, and e.g. the EU/EEA has this with t

by avar 8y ago

What's your proposed alternative to this sort of international tribunal? To me it feels like obviously the correct solution, and e.g. the EU/EEA has this with the EFTA courts and the WTO has it with its courts. Point in favor: 1. It makes sense for a corporation in say Malaysia to be able to sue Australia over state subsidies, otherwise they need to convince their own governments to bring it up at the inter-state level, and Malaysia may consider it too small of an issue to piss off Australia 2. There needs to be one centralized enforcing mechanism. A Malaysian company can't sue the Australian government in its own courts (or Australia's), both would have an obvious bias towards their own country. Even if we assume the courts are fair you'll create N^2 amount of enforcement relationships for the N countries in the deal. That's just redundant, and everyone has an interest in centrally set legal precedent. 3. There need to be damages so countries can't circumvent the trade deal with what amounts to state-sponsored favoritism with impunity.

afiori 8y ago
The presence of a central court that can regulate goverment that act rashly is one thing, to allow individual companies to sue governments is another.
- avar 8y ago
  Yes it's a different thing. I'm asking you to make the case that it's a bad thing, which you're not doing. You're also assuming that all trade disputes are going to involve country X having an issue with country Y, whereas e.g. in the EU/EEA companies sometimes sue their own government for being in breach of the trade rules, and prevail in front of the EFTA court. E.g. a meat importing company in Iceland sued the Icelandic state over the Icelandic government's ban on the import of fresh meat from the EU/EEA[1]. They prevailed, and now Iceland's having to allow that, over the objections of its powerful farming lobby. It wouldn't have made sense for any foreign EU/EEA government to start a trade dispute with Iceland over this matter, but it got resolved because a local company was able to sue and have the EFTA court rule on the matter. Why shouldn't the aggrieved party be able to sue? 1. http://www.eftasurv.int/media/press-releases/Fact-sheet-Iceland_s-restrictions-on-the-import-of-fresh-meat,-egg-and-dairy-products-in-breach--ENG.pdf http://www.eftasurv.int/media/press-releases/Fact-sheet-Icel...
  - cyphar 8y ago
    As I mentioned in my sister comment, because we have evidence that allowing companies to do this would've resulted in the tobacco lobby being able to overturn public health laws in Australia (because they tried to do it within an arbitration courts that they didn't have jurisdiction in). If the TPP was signed in 2011, Australia would've had to pay damages to Phillip Morris for passing plain packaging laws (something that is now becoming a more common law in many jurisdictions). The problem with the EFTA (or ECJ) comparison is that those courts are designed to deal with the laws and directives passed by the EU/EEA. The entire point of the EU/EEA is that members democratically vote on laws that will affect members -- thus a violation of said laws by a government is similar (in principle) to any other violation by a government where an individual can sue the government for violating a law. The TPP arbitration process is not like this at all. There is no democratic agreement on common laws that member states must not violate -- it's a process to allow a corporation to sue a government for enacting "discriminatory" laws (unless those laws are "fair and proportionate" -- which obviously is a very wishy-washy constraint).
- andrewmutz 8y ago
  We've had this for a long time in NAFTA and it hasn't been a big deal: https://en.wikipedia.org/wiki/Investor-state_dispute_settlement https://en.wikipedia.org/wiki/Investor-state_dispute_settlem...
irrational 8y ago
The people in the international tribunal come from somewhere. Wouldn't they still be biased toward the part of the world they come from?
- bobthepanda 8y ago
  Presumably a panel of said international tribunal would have equal members of participating countries to avoid such favoritism in the first place.
cyphar 8y ago
Having a process like the ECJ or EFTA (where governments breaking international agreements can go through a tribunal process) is one thing. Giving corporations the ability to sue governments for laws that are "discriminatory" is another thing entirely. In Australia we have a concrete example of what negative effects such a court would have. When we introduced plain packaging laws, many tobacco companies have attempted to use international trade agreement arbitration systems to overturn the law. They first tried persuading several governments (Ukraine, Cuba, Honduras and the Dominican Republic) to use the WTO court system to start legal proceedings against Australia[1]. When it looked like that attempt would fail, they tried to use the international arbitration system that was part of a trade agreement from 1939 that Australia has with Hong Kong[2]. This also failed because of a jurisdictional issue. However if there was a court that was specifically designed to allow companies to sue governments for discrimination, Phillip Morris and similar tobacco companies would've had jurisdiction for such a claim (and likely they would've won, because the plain packaging laws explicitly discriminate against tobacco companies and were seen as very extreme at the time). In fact, the only reason why the TPP explicitly excludes tobacco is because Australia complained and gave this same example. The response was just to remove tobacco from the agreement, not redesign the international tribunal system they wanted (which misses the point of the complaint). Unfortunately we've changed government since then, so we've now signed the new version of the TPP. [1]: https://www.nytimes.com/2013/05/07/business/global/07iht-smoke07.html https://www.nytimes.com/2013/05/07/business/global/07iht-smo... [2]: https://www.theguardian.com/australia-news/2015/dec/18/australia-wins-international-legal-battle-with-philip-morris-over-plain-packaging https://www.theguardian.com/australia-news/2015/dec/18/austr...

by avar 8y ago

afiori 8y ago

The presence of a central court that can regulate goverment that act rashly is one thing, to allow individual companies to sue governments is another.

avar 8y ago
Yes it's a different thing. I'm asking you to make the case that it's a bad thing, which you're not doing. You're also assuming that all trade disputes are going to involve country X having an issue with country Y, whereas e.g. in the EU/EEA companies sometimes sue their own government for being in breach of the trade rules, and prevail in front of the EFTA court. E.g. a meat importing company in Iceland sued the Icelandic state over the Icelandic government's ban on the import of fresh meat from the EU/EEA[1]. They prevailed, and now Iceland's having to allow that, over the objections of its powerful farming lobby. It wouldn't have made sense for any foreign EU/EEA government to start a trade dispute with Iceland over this matter, but it got resolved because a local company was able to sue and have the EFTA court rule on the matter. Why shouldn't the aggrieved party be able to sue? 1. http://www.eftasurv.int/media/press-releases/Fact-sheet-Iceland_s-restrictions-on-the-import-of-fresh-meat,-egg-and-dairy-products-in-breach--ENG.pdf http://www.eftasurv.int/media/press-releases/Fact-sheet-Icel...
- cyphar 8y ago
  As I mentioned in my sister comment, because we have evidence that allowing companies to do this would've resulted in the tobacco lobby being able to overturn public health laws in Australia (because they tried to do it within an arbitration courts that they didn't have jurisdiction in). If the TPP was signed in 2011, Australia would've had to pay damages to Phillip Morris for passing plain packaging laws (something that is now becoming a more common law in many jurisdictions). The problem with the EFTA (or ECJ) comparison is that those courts are designed to deal with the laws and directives passed by the EU/EEA. The entire point of the EU/EEA is that members democratically vote on laws that will affect members -- thus a violation of said laws by a government is similar (in principle) to any other violation by a government where an individual can sue the government for violating a law. The TPP arbitration process is not like this at all. There is no democratic agreement on common laws that member states must not violate -- it's a process to allow a corporation to sue a government for enacting "discriminatory" laws (unless those laws are "fair and proportionate" -- which obviously is a very wishy-washy constraint).
andrewmutz 8y ago
We've had this for a long time in NAFTA and it hasn't been a big deal: https://en.wikipedia.org/wiki/Investor-state_dispute_settlement https://en.wikipedia.org/wiki/Investor-state_dispute_settlem...

irrational 8y ago

The people in the international tribunal come from somewhere. Wouldn't they still be biased toward the part of the world they come from?

bobthepanda 8y ago
Presumably a panel of said international tribunal would have equal members of participating countries to avoid such favoritism in the first place.

cyphar 8y ago

Having a process like the ECJ or EFTA (where governments breaking international agreements can go through a tribunal process) is one thing. Giving corporations the ability to sue governments for laws that are "discriminatory" is another thing entirely. In Australia we have a concrete example of what negative effects such a court would have. When we introduced plain packaging laws, many tobacco companies have attempted to use international trade agreement arbitration systems to overturn the law. They first tried persuading several governments (Ukraine, Cuba, Honduras and the Dominican Republic) to use the WTO court system to start legal proceedings against Australia[1]. When it looked like that attempt would fail, they tried to use the international arbitration system that was part of a trade agreement from 1939 that Australia has with Hong Kong[2]. This also failed because of a jurisdictional issue. However if there was a court that was specifically designed to allow companies to sue governments for discrimination, Phillip Morris and similar tobacco companies would've had jurisdiction for such a claim (and likely they would've won, because the plain packaging laws explicitly discriminate against tobacco companies and were seen as very extreme at the time). In fact, the only reason why the TPP explicitly excludes tobacco is because Australia complained and gave this same example. The response was just to remove tobacco from the agreement, not redesign the international tribunal system they wanted (which misses the point of the complaint). Unfortunately we've changed government since then, so we've now signed the new version of the TPP. [1]: https://www.nytimes.com/2013/05/07/business/global/07iht-smoke07.html https://www.nytimes.com/2013/05/07/business/global/07iht-smo... [2]: https://www.theguardian.com/australia-news/2015/dec/18/australia-wins-international-legal-battle-with-philip-morris-over-plain-packaging https://www.theguardian.com/australia-news/2015/dec/18/austr...