By Robert A. Vella
Here’s an excerpt from the second installment of BuzzFeed‘s investigative series on free trade, titled THE BILLION DOLLAR ULTIMATUM:
Known as investor-state dispute settlement, or ISDS, this legal system is written into a vast network of treaties that set the rules for international trade and investment. It is as striking for its power as for its secrecy, with its proceedings — and in many cases its decisions — kept from public view. Of all the ways in which ISDS is used, the most deeply hidden are the threats, uttered in private meetings or ominous letters, that invoke those courts. The threats are so powerful they often eliminate the need to actually bring a lawsuit. Just the knowledge that it could happen is enough.
An 18-month BuzzFeed News investigation into ISDS for the first time casts a bright light on the use of these threats. Based on reporting from Asia, Africa, Central America, and the US; interviews with more than 200 people; and inspection of tens of thousands of pages of documents, many of which have never before been made public, the series has already exposed how executives accused or convicted of crimes have turned to ISDS to help them get off the hook. Stories later this week will show how some financial firms have used ISDS to protect their most controversial and speculative practices and how the US, a major booster of the system, is surprisingly vulnerable to ISDS suits. Today’s story reveals how corporations have turned the threat of ISDS legal action into a fearsome weapon, one that all but forces some of the countries where these corporations operate to give in to their demands.
ISDS was originally devised as a forum in which to resolve conflicts between countries and the foreign companies that do business within their borders. But the system puts countries at a striking disadvantage.
Only companies can bring suit. A country can only defend itself; it cannot sue a company. Arbitrators who decide the cases are often drawn from the ranks of the same highly paid corporate lawyers who argue ISDS cases. These arbitrators have broad authority to interpret the rules however they want, without regard to precedent and with almost no public oversight. Their decisions carry extraordinary power. Often, countries are obligated to obey ISDS judgments as if they came from their own highest courts. And there is no meaningful appeal.
From the Richmond Times-Dispatch – France wants halt to ‘imbalanced’ EU-US trade deal talks:
PARIS (AP) — The French government wants the European Union to end talks with the U.S. on forging a sweeping trade deal that it sees as too friendly to U.S. businesses.
French President Francois Hollande said Tuesday that talks on a landmark trade deal between the U.S. and European Union are unbalanced and cannot be completed before President Barack Obama leaves office.
“France prefers to look things in the face,” Hollande said in a diplomatic speech. “These discussions cannot result in an agreement by the end of the year. The negotiations have bogged down, the positions have not been respected, the imbalance is obvious.”
It’s the latest blow to the proposed free-trade zone that would encompass half the world’s economy. There’s resistance on both continents, and the talks are complicated by Britain’s planned exit from the 28-nation EU and upcoming presidential elections in the U.S. and France.
From Bloomberg – U.S.-EU Trade Deal Gets Hung Up on Politics:
Germany’s vice chancellor, Sigmar Gabriel, says talks about a major trade deal between the European Union and the U.S. have failed, though “nobody is really admitting it.” That statement should be taken with a grain of salt, but the Trans-Atlantic Trade and Investment Partnership appears to be doomed, at least until after elections in the U.S. and major European countries.
The three most sensitive areas concern trade in agricultural goods, the mutual opening of government procurement and the resolution of disputes between governments and investors.
Investor conflict resolution is another politically fraught issue. To anti-globalization activists both on the left and on the right, the deal attempts to make multinational corporations unaccountable to national governments. The EU is pushing for a greater role for governments in regulating foreign investors’ activities.