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investorstate dispute settlement
Repairing the Harmful Legacy of Corporate-Dominated Trade in the Americas
As a former ISDS defense attorney, I represented Latin American governments against corporations and witnessed firsthand the devastating impacts of this mechanism on local communities, economies, and environments.
Jul 31, 2024
For decades, U.S. trade policy across Latin America has prioritized the profit of U.S. mega-corporations over the well-being of communities, workers, democracy, and human rights. Now, as trade ministers from the U.S. and eleven countries in our hemisphere convene at the Americas Partnership for Economic Prosperity (APEP) Ministerial in Quito this week, they have an opportunity to address one of the worst manifestations of this shameful legacy.
Embedded within trade and investment agreements between the U.S. and many countries in Latin America is a relic of colonialism that empowers multinational corporations to challenge any public interest law and policy that may interfere with their profits in extrajudicial, closed-door arbitration tribunals. This insidious system is called Investor-State Dispute Settlement (ISDS), and it effectively erodes democracy while fleecing governments of taxpayer dollars and diverting public funds. Yet the secretive nature of the ISDS system ensures the public remains largely unaware.
As a former ISDS defense attorney, I represented Latin American governments against corporations and witnessed firsthand the devastating impacts of ISDS on local communities, economies, and environments.
Time and again, I saw how ISDS granted corporations unprecedented power beyond domestic laws to sue foreign governments for any action they argue violates their broad investor rights, even if governments attempt to protect human rights, workers, or the environment.
Only corporations can launch suits, meaning governments cannot hold corporations accountable. Therefore, if a corporation engages in harmful practices and a government tries to mitigate them, the company can launch an ISDS claim. This system has awarded corporations over $100 billion in taxpayer dollars in known cases, with fossil fuel companies being the primary beneficiaries. The actual sum is likely much higher since awards are often kept secret.
The impact of ISDS on Latin America and the Caribbean has been particularly severe. The region faces a disproportionate number of ISDS disputes (nearly a third of all cases) despite having less than 10% of the world’s population. Latin American governments have been forced to pay corporations $33.8 billion in known awards and settlements, diverting critical resources from social needs.
Following colonization, newly independent nations were pressured to adopt trade and investment deals with ISDS provisions supposedly to attract investment. Despite proponents’ claims, studies show no meaningful increase in foreign investment due to ISDS provisions. Brazil does not have any treaties with ISDS and yet receives the most foreign investment in the region. Instead, ISDS has entrenched an imbalanced system where multinational corporations wield disproportionate power and pillage resources unchecked, often at the expense of the environment and local communities, echoing the colonial paradigm.
I have also witnessed many times how ISDS undermines the will of the people and places Indigenous communities in danger, particularly when corporations want to extract resources from their lands.
The right to Free, Prior, and Informed Consent is a cornerstone of Indigenous rights, allowing them to agree to or reject proposals impacting their lands. However, governments may sideline these rights to avoid costly ISDS litigation, undermining Indigenous sovereignty and self-determination. While Indigenous rights are enshrined in international law, they are often inadequately enforced, whereas ISDS obligations are both binding and highly enforceable. Furthermore, ISDS tribunals frequently restrict the participation of local communities before issuing their awards, effectively silencing the voices of the most impacted and vulnerable.
Notably, the APEP ministerial is taking place in Ecuador, a country that has endured egregious ISDS cases highlighting the erosion of sovereignty and environmental injustice perpetuated by the system. For example, after being found guilty of severe pollution and environmental damage to the Amazon and ordered to clean up by Ecuadorian courts, U.S. oil giant Chevron launched an ISDS suit against Ecuador for $9.5 billion instead of complying. Another case involved Occidental Petroleum, which was awarded $1.4 billion after Ecuador terminated a contract due to the company’s violation of domestic laws.
In 2009, after undertaking an extensive audit of its investment treaties, Ecuador denounced ISDS, withdrew its membership from the World Bank’s venue where most ISDS cases are heard, and terminated 16 bilateral investment treaties. Subsequent Ecuadorian governments have unsuccessfully tried to reinstate ISDS. In response to a referendum this past April, Ecuadorian voters rejected ISDS in a landslide. This is a powerful, democratic statement against a system that prioritizes corporations.
Ecuador’s struggle with ISDS is emblematic of the broader issues countries face, and the global opposition to ISDS is growing. The European Union recently exited the Energy Charter Treaty, which granted ISDS powers to fossil fuel companies, citing concerns that it undermined the fight against climate change. Bolivia, Honduras, India, Indonesia, Pakistan, South Africa, and Venezuela have also taken steps to eliminate their ISDS liability. United Nations experts have called for the abolition of ISDS, citing its undermining of state sovereignty, democracy, and the rule of law.
Domestically, there is increasing bipartisan pressure to end ISDS. Both the previous and current administrations have taken steps away from ISDS. President Biden pledged to abstain from including ISDS provisions in new trade deals. Last year, over 200 U.S. labor unions, faith groups, and environmental organizations urged President Biden to eliminate ISDS from existing treaties, highlighting its detrimental impact on public health, climate protections, Indigenous land rights, and democratic sovereignty. Members of Congress have echoed these calls, emphasizing the need to address ISDS to tackle the root causes of migration, protect the environment, and uphold democratic values.
Achieving APEP’s stated goals of fostering inclusivity and sustainable economic development hinges on reconciling past policy mistakes. Members of Congress recently urged USTR to establish a working group within APEP to explore options for eliminating ISDS provisions in existing trade deals. Not only is this possible, but it is also essential to align trade policy with the values of democracy, human rights, and environmental protection.
APEP ministers should seize this opportunity and eliminate ISDS once and for all to give a sustainable future for people and the environment a fighting chance. The stakes are too high to do otherwise.
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Sensing Keystone XL Rejection, TransCanada Scopes NAFTA Lawsuit
Provisions in trade pact may provide legal basis for suing U.S. over tar sands pipeline
Aug 10, 2015
TransCanada Corporation, the company behind the controversial Keystone XL tar sands pipeline, is furtively planning its next steps--including suing the U.S. government--if U.S. President Barack Obama rejects the permits which would allow construction of the project to move forward, the Canadian Press reported on Monday.
While the company has publicly maintained hope that Obama will permit it to build the pipeline, those close to the project say TransCanada expects rejection and is quietly considering suing the government under the North Atlantic Free Trade Agreement (NAFTA), using articles in the pact that protect companies from discrimination, unfair or arbitrary treatment, and expropriation.
NAFTA also includes a mechanism known as the Investor-State Dispute Settlement (ISDS), which allows corporations to sue a country for damages based on projected "lost profits" and "expected future profits." As Common Dreams has previously reported, the potential award has no monetary cap.
Experts have warned that TransCanada could bring a NAFTA challenge over Keystone XL. Natural Resources Defense Council international program director Jake Schmidt toldPolitico in February that such a case was "definitely a possibility."
Derek Burney, former Canadian ambassador to the U.S. and chief negotiator on the trade deal, as well as its U.S.-Canada predecessor, told Politico at the time, "If the pipeline is actually vetoed on so-called environmental grounds, I think there is a very strong case for a NAFTA challenge."
But would suing the government under NAFTA work? It's unlikely.
The Canadian Press continues:
The U.S. government has a 13-0 record in NAFTA cases. A suit would likely fail, cost the company a few million dollars, and possibly antagonize the U.S. government, said David Gantz, who was been a panelist on NAFTA cases and who teaches trade law at the University of Arizona.
....But another expert said the company might as well try. She said a recent decision against the Canadian government in the Bilcon case involving a Nova Scotia quarry could give TransCanada some hope.
"Why not? And see where it goes," said Debra Steger[.]
Another option on TransCanada's radar is immediately filing another permit application with the U.S. State Department ahead of the 2016 presidential election.
Opponents of the Trans-Pacific Partnership (TPP), a corporate-friendly agreement between the U.S. and 12 Pacific Rim nations described as "NAFTA on steroids," have cautioned against including an ISDS mechanism in the still-pending deal.
"Given NAFTA's record of damage, it is equal parts disgusting and infuriating that now President Barack Obama has joined the corporate Pinocchios who lied about NAFTA in recycling similar claims to try to sell the [TPP]," Lori Wallach, director of Public Citizen's Global Trade Watch, said in February.
The project source told the Canadian Press that whenever the announcement comes, TransCanada will "let it cool for a while. And then we'd have this more vigorous discussion."
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Why the TPP is Worse than Mystery Meat
Jun 20, 2015
Remember the World Trade Organization, which slipped into the shadows after massive Seattle protests in 1999? The same day last week that Congress initially blocked the possibility of fast track approval for the Trans-Pacific Partnership trade agreement, the House voted to overturn rules requiring country-of-origin labeling for meat. Those supporting the vote said they were responding to a World Trade Organization ruling, judging US country-of-origin labeling unfair competition with meat coming from foreign countries like Canada and Mexico, and therefore a violation. They said they had no choice for fear of triggering sanctions or lawsuits from countries exporting meat across our borders.
I don't know about you, but I like knowing whether my meat comes from Iowa or Uzbekistan, Montana or Mexico, Kentucky or Kenya. So do 93% of Americans, according to a Consumer's Union survey. People like supporting US farmers, cutting down the distance traveled, knowing there will be at least minimal inspection standards, even if the delights of E. coli occasionally slip through. It seems commonsensical that we'd want at least the chance to become informed consumers, whether with the origins of our meat, GMO-derived crops, or the amount of sugar and calories in our baked goods.
Maybe the House members are wrong in insisting that the international tribunals that adjudicate trade disputes would deem this a violation. But if this particular House bill passes the Senate and gets signed by Obama, even the mere possibility of a lawsuit will have struck down a wholly reasonable law that protects our health and supports our local economies. And if TPP passes the Senate, other attempts to regulate commerce for the common good will be potentially gutted as well, from attempts at financial regulation to limits on the prices charged for drugs, to environmental rules and seemingly innocuous actions like requiring accurate labeling. Some of this could occur through legal action, and some through the mere fear that such action could occur.
Now maybe TPP won't contain rules on meat. Maybe it will simply limit other ways we might try to exert our sovereignty over critical choices that affect us. But we do know that this agreement, involving countries constituting 40% of the global economy, and that, through what's called the Investor-State Dispute Settlement process, it will establish unaccountable tribunals with the power to let corporations collect damages for loss of profits. We don't know the precise reach of the agreement because ordinary citizens haven't seen it. Even Congressional opponents were prohibited from taking notes when they looked at it, and "cleared advisors" who've seen it have been legally prohibited from talking specifics. Yet we're told it represents an inevitable future, that the benefits will trickle down to ordinary citizens, and that those who ask reasonable questions about its profound implications are merely obstructionist whiners.
So do we demand full transparency before moving ahead? Or do we trust that the corporations that negotiated these rules have our interests at heart, and would never, in the slightest, harm our democracy? Whether or not the country-of-origin labeling on meat survives or is ended by the House bill and WTO ruling, TPP plays for far larger stakes, the ground rules that affect our very potential to take common action. The meat bill is one more warning that there are some rules and agreements where we should be careful to eagerly swallow.
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