Another article, another letter and another press call from those opposed to the Trans-Pacific Partnership (TPP) and particularly its investor-state dispute settlement (ISDS) provisions emerged today. What we’ve seen over the past two weeks is, in reality, just more of the smoke-and-mirrors approach that opponents have been using for years, rehashing the same tired, false and discredited critiques of ISDS. These critiques have been rejected again and again by:
- The Obama administration when it fully considered and rejected these same arguments in its 2009–2012 Model BIT review, which included a broad public comment process;
- The Senate last year when it strongly rejected Sen. Elizabeth Warren’s (D-MA) amendment to eliminate ISDS from Trade Promotion Authority;
- Both the House and Senate when they rejected such arguments and voted in favor of Trade Promotion Authority legislation last year with its explicit direction to negotiate ISDS in new trade agreements; and
- A broad range of well-grounded academics, think-tank experts and media outlets, including The Washington Post and the Center for Strategic and International Studies.
But like a group of vaudeville magicians—and equally out of date—the anti-trade and anti-ISDS crowd is using a sleight of hand to distract from the clear facts: that ISDS is a respected mechanism, fully in line with our own Constitution and basic rules, that helps protect individuals, NGOs and businesses alike from discriminatory and unfair conduct.
For those who may be new to the debate, here is a mini-video course of why ISDS is valuable.
Recent ISDS coverage, including a shockingly biased recent BuzzFeed series, largely addresses non-U.S. ISDS cases and wholly ignores the best-in-class transparency of the U.S. system included in the TPP. Even more disappointing, it relies on name-calling, innuendo and carefully selected anecdotes to build a case that ignores or fails to understand the most basic fact—that investors are already fully subject to foreign government jurisdiction through their court systems, police powers and beyond. It doesn’t even try to analyze the provisions in the TPP that represent the most advanced system of investment protections ever and ignores the United States’ undefeated record in these cases, claiming unnamed sources to say that the United States has simply “gotten lucky.”
At its core, ISDS is about ensuring individuals, NGOs and businesses that are or have invested some basic protections so that foreign governments cannot steal their property or deny them basic rights, such as due process and nondiscrimination. This article simply tries to corral a new batch of cases to complain about—since previous cases that the anti-trade lobby had broadly touted were in fact not the smoking guns they sought, since they were in fact decided for the governments involved. The anti-trade lobby was mysteriously silent about those cases; even they helped to underscore that ISDS is—at it has always been—a neutral, apolitical mechanism to resolve disputes. If you want an honest read, take a look here.
As for the letter, let us go back to letters from those who are actually experts in the field. Take a moment to look at this letter from academics whose actual expertise is in international law, arbitration and dispute settlement that states, among other important points:
“The obligations commonly found in investment agreements—including non-discrimination on the basis of nationality; due process; expropriation of property only for a public purpose and on payment of prompt, adequate and effective compensation; and repatriation of profits—are the hallmarks of a society that is governed by law.”
Or consider the statement of the International Bar Association, the world’s leading organization of international legal practitioners, bar associations and law societies that felt the need to correct the record on ISDS because “erroneous information is subverting debate.”
As a final takeaway, consider these six must-read points:
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