4 ms·

ISDS does not "trump national sovereignty" and in no conceivable way can a business "strong-arm" sovereign entities. This is complete nonsense. The "tribunals"

by nebolo 12y ago

ISDS does not "trump national sovereignty" and in no conceivable way can a business "strong-arm" sovereign entities. This is complete nonsense. The "tribunals" are arbitral tribunals and as such are manned by lawyers chosen and agreed on by BOTH sides - just like any other arbitral tribunal. They can apportion compensation for damages caused by breaches of international law. No international court can "force" a state to change a law (this is constitution 101), and it is not the case here. Philip Morris is seeking compensation for the purported expropriation of intellectual property rights (their brand). Almost no-one believes they have any chance of winning. In fact, it seems that they are doing it solely to press for time in other jurisdictions: i.e. some countries are waiting for the result of the arbitration before introducing similar laws. They probably figured out that potential lost profits in foreign markets in that time frame are likely higher than legal fees. Not one of your points is accurate (and you reference John Oliver and a comic).

leesalminen 12y ago
What if an ISDS tribunal continually levied fines against a nation-state member for damages caused by a breach of international law? Would that nation-state eventually feel pressured to change its laws to avoid crippling fines?
- nebolo 12y ago
  If the nature of the law, is such as to continually breach international law, and companies are consistently and successfully challenging that law, a state may feel pressured to either: 1. Withdraw from the free trade agreement, or 2. change its laws to conform to the terms of the free trade agreement. This is not a bug but a feature: the ISDS is designed to ensure that states abide by international law and respect the terms of the free trade agreement they consented to. This is fully in line with the concept of pacta sunt servanda and the relationship between international and municipal law. Finally, if you are the United States, you can also simply ignore the arbitral tribunal and continue to be in breach of the agreement and international law, because, well, what are they gonna do?

by nebolo 12y ago

leesalminen 12y ago

What if an ISDS tribunal continually levied fines against a nation-state member for damages caused by a breach of international law? Would that nation-state eventually feel pressured to change its laws to avoid crippling fines?

nebolo 12y ago
If the nature of the law, is such as to continually breach international law, and companies are consistently and successfully challenging that law, a state may feel pressured to either: 1. Withdraw from the free trade agreement, or 2. change its laws to conform to the terms of the free trade agreement. This is not a bug but a feature: the ISDS is designed to ensure that states abide by international law and respect the terms of the free trade agreement they consented to. This is fully in line with the concept of pacta sunt servanda and the relationship between international and municipal law. Finally, if you are the United States, you can also simply ignore the arbitral tribunal and continue to be in breach of the agreement and international law, because, well, what are they gonna do?