Reprinted from Elizabeth Warren Blog
I have serious concerns about ISDS -- a policy in the new TPP trade agreement that would let foreign companies challenge American laws outside of American courts.
I'll give you a recent example of how it works: A big mining company wanted to do some blasting off the coast of Nova Scotia. The Canadian government refused to provide permits because it thought the blasting would harm the local environment and scare off fish that local fishermen needed to make a living.
Thanks to an ISDS provision in a past trade agreement, that mining company didn't have to go to a Canadian court to challenge the permit decision -- they went right to a special ISDS panel of corporate lawyers. Last month, the international panel ruled in favor of the mining company, and the decision cannot be challenged in Canadian courts.
ISDS isn't a one-time, hypothetical problem -- we've seen it in past trade agreements. Just in the past few years:
- A French company sued Egypt after Egypt raised its minimum wage.
- A Swedish company sued Germany because Germany wanted to phase out nuclear power for safety reasons.
- A Dutch company sued the Czech Republic because the Czech Republic didn't bail out a bank that the Dutch company partially owned.
- Philip Morris is using ISDS right now to try to stop countries like Australia and Uruguay from implementing new rules that are intended to cut smoking rates -- because the new laws might eat into the tobacco giant's profits.
The Obama Administration has said that they have fixed all the problems, and nothing like that will happen here. They just won't show you how.
I'm not the only one worried about ISDS. Former Secretary of State Hillary Clinton wrote in her book last year:
"We should avoid some of the provisions sought by business interests, including our own, like giving them or their investors the power to sue foreign governments to weaken their environmental and public health rules, as Philip Morris is already trying to do in Australia. The United States should be advocating a level and fair playing field, not special favors."
In March, more than a hundred law professors from all around the country wrote a letter about their concerns about ISDS. And five of the country's top legal and economic experts -- Joseph Stiglitz, Larry Tribe, Judith Resnik, Cruz Reynoso, and H. Lee Sarokin -- all agree:
"ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve. Proponents of ISDS have failed to explain why our legal system is inadequate to the task. For the reasons cited above, we urge you to uphold the best ideals of our legal system and ensure ISDS is excluded from upcoming trade agreements."
This isn't a partisan issue. I don't often agree with the conservative Cato Institute, and I suspect they don't often agree with me. But the head of Cato's trade policy program said:
"[ISDS] raises serious questions about democratic accountability, sovereignty, checks and balances, and the separation of power... Sen. Warren's perspective on ISDS is one that libertarians and other free market advocates should share."
The Obama Administration says you have nothing to worry about -- to trust them that nothing could possibly go wrong. But they won't release the text of the TPP agreement to the public for you to see it for yourself.
Frankly, "just trust us" isn't good enough -- not for a trade deal that multinational corporations have been working on for years while the public has been kept in the dark.