By Lambert Strether of Corrente.
The left critique on TPP starts with how it hurts labor, and moves on to how it hurts the environment. The difficulty here is that these critiques don’t appeal to the right, and it will take left and right, ganging up, to defeat the party establishments on TPP. I would like to suggest that a focus on national sovereignty — more concretely, framing the proponents of TPP as traitors — is a better approach, because left and right can agree on it. Let’s start with this gem from the press:
In my inbox: "Sanders Welcomes McConnell Decision to Block TPP." Interesting to see Sanders cheering on a Republican pic.twitter.com/owpdiBDpIm
— Yamiche Alcindor (@Yamiche) August 26, 2016
(“Interesting that…” on the Twitter is never interesting in a good way; openers like “Interesting that puppies are cute” do not figurely largely there, and certainly not in political Twittter. Personally, I find it interesting that Times stenographer Alcindor is not only displaying open bias against Sanders, but vending the Clinton line that Sanders is really doing the Republicans’ work (“cheering on”). Perhaps I’m guilty of oldthink; after all, we have so few reporters these days, and so very many public relations operatives in training. But I digress.) What I find interesting is that it’s possible for a socialist like Sanders and a reactionary like McConnnell to find common cause in opposing TPP (assuming, for the sake of the argument, that McConnell isn’t simply trying to muscle Obama to get a better deal for Kentucky tobacco interests). More like that, please.
First, I’ll show how to frame the proponents of TPP as traitors. Then, I’ll look at the political state of play, and apply the framing.
Why the Proponents of TPP Are Traitors
There are two reasons: First, they consciously seek to weaken the national defense. And second, the Investor-State Dispute Settlement (ISDS) system is a surrender of national sovereignty.
National Defense
This might be labeled the “Ghost Fleet” argument, since we’re informed that Paul Singer and Augustus Cole’s techno-thriller has really caught the attention of the national security class below the political appointee level, and that this is a death blow for neoliberalism. Why? “The multi-billion dollar, next generation F-35 aircraft, for instance, is rendered powerless after it is revealed that Chinese microprocessor manufacturers had implanted malicious code into products intended for the jet” (Foreign Policy). Clearly, we need, well, industrial policy, and we need to bring a lot of manufacturing home. From Brigadier General (Retired) John Adams:
In 2013, the Pentagon’s Defense Science Board put forward a remarkable report describing one of the most significant but little-recognized threats to US security: deindustrialization. The report argued that the loss of domestic U.S. manufacturing facilities has not only reduced U.S. living standards but also compromised U.S. technology leadership “by enabling new players to learn a technology and then gain the capability to improve on it.” The report explained that the offshoring of U.S. manufacturing presents a particularly dangerous threat to U.S. military readiness through the “compromise of the supply chain for key weapons systems components.”
Our military is now shockingly vulnerable to major disruptions in the supply chain, including from substandard manufacturing practices, natural disasters, and price gouging by foreign nations. Poor manufacturing practices in offshore factories lead to problem-plagued products, and foreign producers—acting on the basis of their own military or economic interests—can sharply raise prices or reduce or stop sales to the United States.
The link between TPP and this kind of offshoring has been well-established.
And, one might say, the link between neo-liberal economic policy “and this kind of offshoring has been well-established” as well.
So, when I framed the issue as one where pro-TPPers “consciously seek to weaken the national defense,” that’s exactly what’s going on. Neoliberalism, through offshoring, weakens the national defense, because it puts our weaponry at the mercy of fragile and corruptible supply chains. Note that re-industrializing America has positive appeal, too: For the right, on national security grounds; and for the left, on labor’s behalf (and maybe helping out the Rust Belt that neoliberal policies of the last forty years did so much to destroy. Of course, this framing would make Clinton a traitor, but you can’t make an omelette without breaking eggs. (Probably best to to let the right, in its refreshingly direct fashion, use the actual “traitor” word, and the left, shocked, call for the restoration of civility, using verbiage like “No, I wouldn’t say she’s a traitor. She’s certainly ‘extremely careless’ with our nation’s security.”)
ISDS
The Investor-State Dispute Settlement system is a hot mess (unless you represent a corporation, or are one of tiny fraternity of international corporate lawyers who can plead and/or judge ISDS cases). Yves wrote:
What may have torched the latest Administration salvo is a well-timed joint publication by Wikileaks and the New York Times of a recent version of the so-called investment chapter. That section sets forth one of the worst features of the agreement, the investor-state dispute settlement process (ISDS). As we’ve described at length in earlier posts, the ISDS mechanism strengthens the existing ISDS process. It allows for secret arbitration panels to effectively overrule national regulations by allowing foreign investors to sue governments over lost potential future profits in secret arbitration panels. Those panels have been proved to be conflict-ridden and arbitrary. And the grounds for appeal are limited and technical.
(More from NC on the ISDS panels, the TPP clauses on ISDS, the “code of conduct” for lawyers before the ISDS, pending ISDS settlements, and the potential constitutional challenges to the ISDS system.)
Here again we have a frame that appeals to both right and left. The very thought of surrendering national sovereignty to an international organization makes any good conservative’s back teeth itch. And the left sees the “lost profits” doctrine as a club to prevent future government programs they would like to put in place (single payer, for example). And in both cases, the neoliberal doctrine of putting markets before anything else makes pro-TPP-ers traitors. To the right, because nationalism trumps internationalism; to the left, because TPP prevents the State from looiking after the welfare of its people.
The Political State of Play
All I know is what I read in the papers, so what follows can only be speculation. That said, there are two ways TPP could be passed: In the lame duck session, by Obama, or after a new President is inaugurated, by Clinton (or possibly by Trump[1]).
Passing TPP in the Lame Duck Session
Obama is committed to passing TPP (and we might remember that the adminstration failed to pass the draft in Maui, then succeeded in Atlanta. And the House killed Fast Track once, before voting for it (after which the Senate easily passed it, and Obama signed it). So the TPP may be a “heavy lift,” but that doesn’t mean Obama can’t accomplish it. Obama says:
[OBAMA:] And hopefully, after the election is over and the dust settles, there will be more attention to the actual facts behind the deal and it won’t just be a political symbol or a political football. And I will actually sit down with people on both sides, on the right and on the left. I’ll sit down publicly with them and we’ll go through the whole provisions. I would enjoy that, because there’s a lot of misinformation.
I’m really confident I can make the case this is good for American workers and the American people. And people said we weren’t going to be able to get the trade authority to even present this before Congress, and somehow we muddled through and got it done. And I intend to do the same with respect to the actual agreement.
So how would Obama “muddle through”? One way is to appeal to legislators who won’t have to face voters again:
So it is looking like a very close vote. (For procedural and political reasons, Obama will not bring it to a vote unless he is sure he has the necessary votes). Now let’s look at one special group of Representatives who can swing this vote: the actual lame-ducks, i.e., those who will be in office only until Jan. 3. It depends partly on how many lose their election on Nov. 8, but the average number of representatives who left after the last three elections was about 80.
Most of these people will be looking for a job, preferably one that can pay them more than $1 million a year. From the data provided by OpenSecrets.org, we can estimate that about a quarter of these people will become lobbyists. (An additional number will work for firms that are clients of lobbyists).
So there you have it: It is all about corruption, and this is about as unadulterated as corruption gets in our hallowed democracy, other than literal cash under a literal table. These are the people whom Obama needs to pass this agreement, and the window between Nov. 9 and Jan. 3 is the only time that they are available to sell their votes to future employers without any personal political consequences whatsoever. The only time that the electorate can be rendered so completely irrelevant, if Obama can pull this off.
(The article doesn’t talk about the Senate, but Fast Track passed the Senate with a filibuster-proof super-majority, so the battle is in the House anyhow. And although the text of TPP cannot be amended — that’s what fast track means! — there are still ways to affect the interpretation and enforcement of the text, so Obama and his corporate allies have bargaining chips beyond Beltway sinecures.[2])
Now, when we think about how corrupt the political class has become, it’s not hard to see why Obama is confident that he will win. (Remember, “[T]he preferences of economic elites have far more independent impact upon policy change than the preferences of average citizens do.”) However, if the anti-TPP-ers raise the rhetorical stakes from policy disagreement to treason, maybe a few of those 80 representatives will do the right thing (or, if you prefer, decide that the reputational damage to their future career makes a pro-TPP vote not worth it. Who wants to play golf with a traitor?)
Passing TPP after the Inaugural
After the coronation inaugural, Clinton will have to use more complicated tactics than dangling goodies before the snouts of representatives leaving for K Street. (We’ve seen that Clinton’s putative opposition to TPP is based on lawyerly parsing; and her base supports it. So I assume a Clinton administration would go full speed ahead with it.) My own thought has been that she’d set up a “conversation” on trade, and then buy off the national unions with “jobs for the boys,” so that they sell their locals down the river. Conservative Jennifer Rubin has a better proposal, which meets Clinton’s supposed criterion of not hurting workers even better:
Depending on the election results and how many pro-free-trade Republicans lose, it still might not be sufficient. Here’s a further suggestion: Couple it with a substantial infrastructure project that Clinton wants, but with substantial safeguards to make sure that the money is wisely spent. Clinton gets a big jobs bill — popular with both sides — and a revised TPP gets through.
Finally, an even more radical proposal, again from a conservative source:
What Clinton needs is a significant revision to TPP that she can tout as a real reform to trade agreements, one that satisfies some of the TPP’s critics on the left. A minor tweak is unlikely to assuage anyone; this change needs to be a major one. Fortunately, there is a TPP provision that fits the bill perfectly: investor state dispute settlement (ISDS), the procedure that allows foreign investors to sue governments in an international tribunal. Removing ISDS could triangulate the TPP debate, allowing for enough support to get it through Congress.
Obama can’t have a conversation on trade, or propose a jobs program, let alone jettison ISDS; all he’s got going for him is corruption.[3] So, interestingly, although Clinton can’t take the simple road of bribing the 80 represenatives, she does have more to bargain with on policy. Rubin’s jobs bill could at least be framed as a riposte to the “Ghost Fleet” argument, since both are about “jawbs,” even if infrastructure programs and reindustrialization aren’t identical in intent. And while I don’t think Clinton would allow ISDS to be removed (her corporate donors love it), at least somebody’s thinking about how to pander to the left. Nevertheless, what does a jobs program matter if the new jobs leave the country anyhow? And suppose ISDS is removed, but the removal of the precautionary principle remains? We’d still get corporate-friendly decisions, bilaterally. And people would end up balancing the inevitable Clinton complexity and mush against the simplicity of the message that a vote for TPP is a vote against the United States.
Conclusion
I hope I’ve persuaded you that TPP is still very much alive, and that both Obama in the lame duck, and Clinton (or even Trump) when inaugurated have reasonable hopes of passing it. However, I think raising the ante rhetorically by framing a pro-TPP vote as treason could help sway a close vote; and if readers try that frame out, I’d like to hear the results (especially when the result comes from a letter to your Congress critter). Interestingly, Buzzfeed just published tonight the first in a four-part series, devoted to the idea that ISDS is what we have said it is all along: A surrender of national sovereignty. Here’s a great slab of it:
Imagine a private, global super court that empowers corporations to bend countries to their will.
Say a nation tries to prosecute a corrupt CEO or ban dangerous pollution. Imagine that a company could turn to this super court and sue the whole country for daring to interfere with its profits, demanding hundreds of millions or even billions of dollars as retribution.
Imagine that this court is so powerful that nations often must heed its rulings as if they came from their own supreme courts, with no meaningful way to appeal. That it operates unconstrained by precedent or any significant public oversight, often keeping its proceedings and sometimes even its decisions secret. That the people who decide its cases are largely elite Western corporate attorneys who have a vested interest in expanding the court’s authority because they profit from it directly, arguing cases one day and then sitting in judgment another. That some of them half-jokingly refer to themselves as “The Club” or “The Mafia.”
And imagine that the penalties this court has imposed have been so crushing — and its decisions so unpredictable — that some nations dare not risk a trial, responding to the mere threat of a lawsuit by offering vast concessions, such as rolling back their own laws or even wiping away the punishments of convicted criminals.
This system is already in place, operating behind closed doors in office buildings and conference rooms in cities around the world. Known as investor-state dispute settlement, or ISDS, it is written into a vast network of treaties that govern international trade and investment, including NAFTA and the Trans-Pacific Partnership, which Congress must soon decide whether to ratify.
That’s the stuff to give the troops!
NOTE
[1] Trump: “I pledge to never sign any trade agreement that hurts our workers.” Lotta wiggle room there, and the lawyerly parsing is just like Clinton’s. I don’t think it’s useful to discuss what Trump might do on TPP, because until there are other parties to the deal, there’s no deal to be had. Right now, we’re just looking at Trump doing A-B testing — not that there’s anything wrong with that — which the press confuses with policy proposals. So I’m not considering Trump because I don’t think we have any data to go on.
[2] In-Depth News explains the mechanisms:
To pacify [those to whom he will
corruptappeal], Obama will have to convince them that what they want will anyway be achieved, even if these are not legally part of the TPP because the TPP text cannot be amended.He can try to achieve this through bilateral side agreements on specific issues. Or he can insist that some countries take on extra obligations beyond what is required by the TPP as a condition for obtaining a U.S. certification that they have fulfilled their TPP obligations.
This certification is required for the U.S. to provide the TPP’s benefits to its partners, and the U.S. has previously made use of this process to get countries to take on additional obligations, which can then be shown to Congress members that their objectives have been met.
In other words, side deals.
[3] This should not be taken to imply that Clinton does not have corruption going for her, too. She can also make all the side deals Obama can.
150 comments
Comments are closed.
Attention to the “actual facts behind the deal” (BHO) would be nice–if they weren’t secret.
https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text
Haven’t they been released? Unless I’m missing something.
Don’t worry, he will make the case for it after it passes. Good of him really.
It’s just a shame that we only have one vote to withhold.
Except, of course, that they’re not at all secret.
The entire TPP text was published when the agreement was signed.
The section on ISDS is just a summary provided by the NZ government. It’s not the actual language. Why?
No, the entire text of the TPP is on that page. It is the actual language.
New Zealand is the official repository of the TPP, which is why I provided that link.
If it makes you more comfortable (I can’t see why it should) you can read the same words on the USTR website.
You seem to have a vested interest in the TPP. So perhaps you’d like to introduce yourself, who you work for, and what you believe you have to gain from the TPP, TISA, etc.
Historically, trade agreements have hurt workers. As a mere worker, I have little reason to believe that any of these agreements have labor’s best interests at heart.
PS Interesting. The language for Dispute Settlement included only the notes. When I just revisited the link, there was a new PDF with the complete text.
And no, I’m not an idiot. I’m perfectly capable of reading.
That’s a lot to read, much less digest, and much less debate, especially given the imposed urgency of the schedule (fast-track gimmick). Your point comes down to “trust the merited meritocrats to know what’s best for all”.
” (I can’t see why it should)”
Did you read Lamberts post? The theme is “surrendering national sovereignty”. Can you specifically refute any of the points made, e.g., weakening defense, weakened productive capacity etc..
Did you read my post? The “can’t see why it should” comment was a reference to my assumption that the OP might prefer to read the TPP text on a US site rather than the official New Zealand site.
Three days to respond to my comment, and what you offer is a clarification of YOUR assumption, yet fail to address the sovereignty concerns presented in the post. Three days for a single comment on a single post, and it doesn’t take much to conclude that “fast-track” is either disingenuous or untenable.
To be fair Craig, I didn’t say it was secret. I just noted that Obama said he would make the case for it post passing.
My guess is that the fewer eyes the better for those in favour of it passing.
Which is probably why we have so little time with the text itself. But thanks anyway for posting the link.
I was actually answering timotheus, Harry. He said:
It might appear that I was answering you because my post follows yours, but the indentation should suggest otherwise. Unless you’re using a phone perhaps.
RE: Alcindor — remember when the election was all about who could get along on key issues and work with Republicans more efficiently? ahh…. the primaries.
The real dichotomy this tweet frames is oligarch v. public, not Democrat v. Republican.
It will be nice if ever the sycophants start looking at policy and not the color t-shirts they and their friends have on (or which Twilight character was their favorite: “Team (uh) Edward! Boooo the other people!”–as if this is some lame high school cheer rally.
Whatever happened to the phrase “economic Benedict Arnold”?
It used to be quite the thing, but Google seems to want to bury it far down in the search results.
But there was this Iraq-style playing card for Robert Zoellick.
So, how about producing a crowd-funded deck of (US-made, of course) playing cards
with the worst 52 trade traitors, including all the Dems who voted for fast track,
to hand out at campaign events.
I like your thinking!!!
second; now sell the idea to one of the poster sellers on amazon.
And still people wonder why anyone would vote for an infantile egomaniac like Trump who kinda promises to resist TPP instead of the political prostitute Clinton.
I first heard about giving away sovereignty from George Monbiot at The Guardian. That was a couple of years ago. I was flabbergasted. This has been one of the many reasons that I have opposed TPP.
Your article is GREAT!
This is the way to frame the debate on TPP
This appeals to all parts of the political spectrum
Since Hillary “won” the primary, issues have gone away, and “jobs” is the new motherhood and apple pie phrase that is thrown around and around.
Treason – walk the plank, matey
The Brexit Gambit!
this is not just a strategy. it is an actuality. it is loss of sovereignty and democracy and it’s obvious. i’ve been saying this to all my friends for months. spread the word.
It seems to me there has been a 40 or so year effort to denigrate the very idea of the nation state (Imagine no countries….). Was all the yammering about open boarders just a Trojan horse for unrestrained capitals flows??? These guys think long term, and selling something is always a matter of deflection.
Now, the nation state is no bowl of cherries, but what replaces it? How’s that IMF doing? The “trade” courts we already have? I think we are seeing it now – a plutocracy that has as its governing unit the corporation. It really is amazing how many articles I see that are of the “quit your bitching – things have never been better” genre. Is unemployment at 5% today the same as when unemployment was 5% when I was young??? See:
http://money.cnn.com/2016/02/06/news/economy/obama-us-jobs/
From the article: “Our military is now shockingly vulnerable to major disruptions in the supply chain, including from substandard manufacturing practices, natural disasters, and price gouging by foreign nations. Poor manufacturing practices in offshore factories lead to problem-plagued products, and foreign producers—acting on the basis of their own military or economic interests—can sharply raise prices or reduce or stop sales to the United States.”
==========================================
I saw that point made 30 years – than as now, it didn’t seem to me very many paid any attention to it.
And, when you look at who are “allies” are, whom we go to war with, etcetera, it seems to me that idea that our army is for OUR national defense is a rather quaint, outmoded idea. We don’t fight to protect our industries (on land IN the America), our (international) industries field an army to make their profits.
Maybe framing the TPP as the “United Nations of Trade” will be sufficiently odious to conservatives to work.
” failed to pass the draft in Maui, ”
Aloha, Lambert. It’s ON Maui. An island. Like “on Puerto Rico.”
Insert winking smiley face here.
As a person who has served on a local government’s Board of Directors, I am VERY concerned about the TPP ISDS court process with results being the surrendering of governmental sovereignty to corporate interests, foreign and domestic.
Basically due to secretive deliberations, this “judicial” process is designed to favor corporate over governmental concerns and interests. This agreement should not allow corporations to use this judicial process, but should demand they use our existing judicial process as it relates to governmental entities. How many state and local governments can afford to be involved in such a process? Just by the threat of suits through ISDS, a climate where governmental units cave in will be created. Look at what has happened under NAFTA and the WTO as it relates to our right to know where our food comes from. Look at how a Canadian corporation is using NAFTA to sue the U.S. on the Keystone project.
This will mean that by said threat political topics such as minimum wage increases and housing and zoning laws may be pre-empted by just the threat of a suit through the ISDS process. Look at what happened with Egypt when a corporation tried to use a process analogous to the ISDS to prevent Egypt from raising their minimum wage laws. (Veolia v. Egypt)
Therefore, I recommend, in the national interest, this agreement not be approved. When people find out how this can be used to prevent them from finding out things such as where products are made, etc., there will be charges of treason and the political process will never recover the trust of the American citizens.
Under the TPP, ISDS arbitration proceedings are not secret.
Governments win ISDS proceedings more often than do investors.
State and local governments are not involved in ISDS disputes. The ‘I’ stands for Investor, and the ‘S’ stands for tate, as in ‘country’.
If you’re referring to the WTO COOL decision, that has nothing to do with ISDS.
What about it? It’s not the first, and it won’t be the last ISDS dispute raised against the US. What about the many times that US investors have raised disputes against Canada?
A complete misrepresentation of the facts. Veolia had a contract which specified, amongst other things, that it be compensated if the cost of its operations went up due to the actions of the contracting party, the Alexandria Government. When wages went up, the Government refused to compensate Veolia. An ISDS dispute (not a ‘process analogous to ISDS) was then initiated. At no time did Veolia either protest the increase in the minimum wage, nor did it try to stop it from happening.
“What about it? It’s not the first, and it won’t be the last ISDS dispute raised against the US”
while it may not be the first and last, why, in your opinion, do we need it at all?
You mention, “Governments win ISDS arbitration proceedings more often than investors”.
However, is there financial symmetry in which the prevailing governments receive the same “estimated lost profits” transferred from the ISDS losing claimant investors to the government coffers?
Most people will be delighted to gamble in a game in which their side will incur frequent small losses that are more than covered by less frequent large gains.
It will be slim satisfaction for the other side (the governments in this case) to say, “we won more often than they did” while watching their national bank accounts incrementally emptied.
Do you have numbers for the amount of money transferred to/from BOTH sides of the historical ISDS suits?
Are sovereign governments net losers to date?
https://www.opendemocracy.net/ourkingdom/thomas-mc-donagh/who-really-wins-more-isds-cases-governments-or-corporations
Your link mentions the win/loss ratio of ISDS, but does not mention the heads I win a lot, tails I lose some legal fees aspect that businesses should view potential ISDS.
actions they may initiate.
The underlying UN report, at http://unctad.org/en/publicationchapters/wir2015ch3_en.pdf mentions this “Of the 10 decisions finding the State liable, 6 found a violation of the FET provision and 7 a violation of the expropriation provision. At least 8 decisions rendered in 2014 awarded compensation to the investor, including a combined award of approximately $50 billion in 3 closely related cases, the highest known award-by far-in the history of investment arbitration.”
This 50 billion likely represents funds transferred from a nation to corporations
If TPP allows for corporations to sue, and collect, for damages in developing countries
from, say, expropriation, this has the effect of lowering the corporate risk of doing business overseas, leading to more risk-free outsourcing of US labor and factories.
And those who say not to worry, relatively few ISDS actions are initiated, cannot predict the future.
Some have suggested that “do not worry, ISDS will be used very little”
It would be far more prudent to NOT have ISDS provisions at all, than to codify an ISDS system that could be used and abused greatly in the future in unanticipated ways.
Are you saying that the proceedings are not explicitly secret, or are you saying that the proceedings are required to be public? There’s a difference. Could you please point us to the part of the TPP that requires the proceedings to be public?
Does this mean that the state and local governments won’t be able to participate in an ISDS panel? Will they be entirely dependent on the federal government to advocate on their behalf? If so, you have confirmed the loss of sovereignty by the 50 state governments of the U.S.
I don’t believe you. It’s possible the procedure was named something other than “Investor State Dispute Settlement”, but it was substantially the same.
Certainly.
Article 9.24: Transparency of Arbitral Proceedings
9.24(2) The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. If a disputing party intends to use information in a hearing that is designated as protected information or otherwise subject to paragraph 3 it shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect such information from disclosure which may include closing the hearing for the duration of the discussion of that information.
Yes. A dispute can only be raised against a party to the agreement. There are 12 parties. The United States is one of them.
It was an arbitration dispute between two countries. There was no Investor. Quite a different matter. Remember the ‘I’ in ISDS?
BTW, the TPP also has provision for disputes between two countries.
This is interesting, do you have a link to where I could read the actual ISDS language in the TPP?
Sure, here’s the TPP text, and the ISDS provisions are outlined in Chapter 9, ‘Investment’.
Chapter 28, from the link he provided previously. If that doesn’t put all your fears to rest, nothing will.
No Katharine, ISDS provisions are outlined in Chapter 9, ‘Investment’.
Not that lawyerly parsing of legalese is comforting, but can you be more specific? Are you claiming to have identified “all fears”, and that there’s nothing to worry about, that any concerns are illusory?
I could be mistaken, but I suspect that Katharine is being sarcastic about putting fears to rest.
No, I was indulging in heavy sarcasm because the chapter on Dispute Settlement inspires anything but confidence. And while I regret not realizing that Investor-State Dispute Settlement is not covered in the chapter on Dispute Settlement (silly of me! who would think to find it there?), I think that adds yet another reason for distrust. An agreement that is neither intelligibly organized nor presented in a format that is easily searchable appears to be designed to prevent citizens from finding out how badly they are being screwed until it is too late.
Thanks for clarifying…my sarc-sensors need upgrading.
I disagree. The governments of Canada and Mexico were acting as agents for the meat industry investors in their countries.
If an investor objects to a local law, the investor will file a grievance against the United States. If the U.S. loses or chooses not to defend the case, the federal government will apply severe pressure to the state or local government to change the state or local law. As I said, this confirms the loss of sovereignty under the TPP.
There are no defined grounds to raise an arbitration dispute even remotely along the lines of ‘we don’t like a given law’.
The only grounds for a dispute are alleged breaches of the terms of the agreement.
There is a vast number of words in the agreement. It will be a simple matter for clever corporate lawyers to find breaches of the agreement in laws and regulations all over the U.S.
There are not so many words in the Investment Chapter. Disputes can only be raised on grounds defined in that Chapter.
Finding something in a law or regulation does not serve any function. First, there has to be an investment by a foreign party. The investor has to be cognisant of, and comply with, existing laws. If a government then takes some action in breach of the agreement, causing damage to the investor (such as expropriation) a dispute can be raised.
at best you’re saying that there is equal sovereignty between unknown investors and nations with physical boundaries and restraints regarding their responsibilities to their citizens. I disagree with this view and think it gives the investor the upper hand, due to the same restraints and responsibilities.
First, there has to be an investment by a foreign party. The investor has to be cognisant of, and comply with, existing laws. If a government then takes some action in breach of the agreement, causing damage to the investor (such as expropriation) a dispute can be raised.
@Craig Welch. This is actually funny. Or it would be funny if I were sure you were trolling.
What’s frightening is that there are people who talk like this in real life and mean it (to the extent anyone can “mean” what they say when speaking in gobbledygook). (or who, when pressed, would deny that this statement is intended to say that such disputes would not be successfully brought, and instead dodge that question entirely by repeating a different variation of same, w/further dodges ad infinitum, except in cases of actual litigation/arbitration of said non-existing until such time as they actually existed disputes, in which case they would then point to where they said this sort of thing as “reassurance” that such cases would never happen, and instead claim this was an example of the other party being clearly informed of their rights beforehand and as such evidence that the contract was indeed valid and therefore !of course! the people living in countries which passed the TPP knew that passing an environmental regulation which adversely affected the potential future profits of NeedingToDieScum, Inc from the years 2020 through such time as the likely collapse of the universe meant not only that the laws were invalid, but the law passers had now signed over not only everything they owned but the rights of all their future earnings and those of their descendants to NeedingToDieScum, Inc until such time as the debt was ruled to be discharged. That complete impossibility of calculating the debt under these terms short of words like “possibly infinite” should not thereby be understood to mean, imply or signify any sort of undue burden or trigger any relevant shocks the conscience or other policy related clause, even assuming such terms had any more meaning other than the impossibly vague “fairness” or the completely ludicrous and impossible to discuss because of said vagueness “survival of the planet” arguments opposing council had ridiculously attempted to interject)
(Such arguments and the people, who make them and worse, the other people who take them seriously, are a prime example of why courts of equity might be preferable to courts of law, or what the proper balance of equity and law should be, but that’s a whole ‘nother matter)
Please tell me you realize the Lovecraftian level horror of your words here, and that the appropriate sort of response from the more straightforwardly inclined is something along the lines of “Hi Ken! Wanna see my impression of Ghandi?”
And backing you up here, re US country of origin labelling:
“WTO’s appellate body said Monday that the mandatory rule violates U.S. trade obligations and imposes a disproportionate burden in record-keeping and verification requirements on meat producers and processors.”
From a long-ago “The Hill”
(my efforts to reply to Craig keep getting thrown into the mod queue even w/out links, so not about to put one in)
I think this counts as acting in the interests of businesses, even if the government brought the suit. Likewise the US suing India (successfully) for their domestic solar push. And anyone saying things like this won’t happen under TPP ISDS is either being ironic or duplicitous.
This contains a loophole big enough through which one could sail a supertanker. The investor merely claims that there is protected information, and the corporate lawyers who are acting as “judges” will close the hearing for the duration of the discussion of that information. And surprise, the entire hearing will be used for the discussion of that information, so the entire hearing will have to be closed.
On what do you make that assumption? Arbitration disputes are common – you might enter one of your car dealer reneges on a sales purchase. And it’s quite common to redact commercially sensitive material from published decisions.
Look, for example, at the recent dispute between Philip Morris and Australia over plain packaging of tobacco products (PM lost). The published decision has sections redacted, with the press saying that it was ‘heavily redacted‘. But even a cursory perusal of the judgment shows that it was only lightly redacted, and nothing containing the sense, the logic of the decision was missing.
Yes, arbitration is unfortunately quite common nowadays, and it is heavily weighted in favor of corporations. For examples of the unfairness of arbitration, see:
http://www.citizen.org/documents/UnfairAndEverywhere.pdf
Why would anyone assume anything else? Large corporations and ultra-rich individuals depend on secrecy to help maintain their dominance over the rest of us. The history of the TPP is infused with secrecy. Sure, the text of the agreement is available now, but for a long time the drafts of the TPP were guarded a heck of a lot more securely than Hillary Clinton’s email server. With good reason, too. The corporations and their government agents who negotiated the agreement knew how harmful the TPP would be. The same will be true of the kangaroo “panels”.
Oh, I thought you would make your point by indicating some, from the hundreds of ISDS disputes that have taken place, that were purportedly public but in reality were secret on the basis that you’ve indicated.
Did my Philip Morris example not mean anything to you? How about the earlier Philip Morris v Uruguay dispute, also lost by PM (proving once again that it’s all loaded in favour of the corporations … not) where the judgment was not redacted at all?
Well, my first reply was eaten by Skynet. Comment 2661250. Anyhow, PM may have lost, but they also won, because they forced Uruguay, with substantial financial assistance from Michael Bloomberg to mount a very expensive defense. Would Uruguay have been able to do this without Bloomber’s money? I doubt it.
Whether or not the dice are loaded in favor of corporations depends on the state in question. I believe that the governments of both Australia and Uruguay are more accountable to their citizenry than is ours.
Wrong. States WILL be in the middle of this. States DO pass laws that corporations dislike and would happily use ISDS to kill. California anti-pollution rules, mandates on electric vehicles, etc, would all come under attack via ISDS and it doesn’t matter one iota if the entity put forward in the ISDS panel is a Fed standing in for the state, the fact remains that corporations get to eliminate regulations and laws ANY time they see them as an impediment to maximizing profits (the fantastical and nonexistent “future profits” – as if corporations are GUARANTEED profits no matter what…and TPP does guarantee them profits on the taxpayer dime).
State passes GMO labeling law. Whiny corporations go to ISDS and claim it is “anti-competitive” and “hurts future profits”. US govt loses and tells the State that the Supremecy Clause ensues and the state law violates federal law so the law on GMO labeling must go…or the state is “responsible” for sending taxpayer monies to the corporation to prop up fantasy “lost future profits”. NO state keeps laws on the books with this so no such laws will ever pass again.
Veolia doesn’t need to stop the wage increase. They win in ISDS and they are given their non-existent “lost profits due to wage increase” thanks to the govt handing over taxpayer money. Veolia doesn’t need to complain because they receive unearned free money at out expense. Negating the value of the wage increase.
How so? So long as the Government does not discriminate against foreign investors, it has the right to legislate in the interests of public health and safety, the environment and so on.
Neither of those is a ground for a dispute. Only grounds are a breach of the agreement.
No it doesn’t. I invite you to advise which section does. Absent a breach of the agreement, an action by a government that compromises profits is not a ground for a dispute. See for example Article 9.6(4)
@Craig Welch — I truthfully cannot tell if you are trolling, i.e. making the sort of arguments people might expect to see from proTPP advocates in order to show how absurd they are and the sort of duplicitious toxic excrescence we should expect to hear from its advocates, or if you really mean what you are saying.
So long as the Government does not discriminate against foreign investors, it has the right to legislate in the interests of public health and safety, the environment and so on.
Neither of those is a ground for a dispute. Only grounds are a breach of the agreement.
If you are howling with laughter as you type these things, I congratulate you on your dry wit, though I think you are being a wee bit too subtle, and pointlessly so. If you are being serious … well, see previous statement about duplicitous toxic bilge.
Should an investor make an investment in California in the context of existing regulations and then California pass new regulations that, while not singling out that investor or any investor, cost said investor future profits anticipated (for which investment was made), would this be a case for ISDS?
Written like a great corporate lawyer! Are you seriously suggesting that demanding huge amounts of “compensation” in the event that something happens isn’t really an attempt to prevent it from happening.
Imagine that my daughter calls me up and asks if its o.k. for her to borrow my favorite car for a trip up to Maine. I tell her “sure, as long as you deposit thirty million dollars in an escrow account to cover any possible negative outcomes of my agreement to your request.” Any reasonable observer of that exchange would think that I was attempting to get her to drop her request, no?
Veolia had a contract. You might fault the Alexandria government for agreeing to the contract, but as they needed Veolia for an important public service, they did agree to it. Just as the US government agrees to all sorts of contracts when, for example, it pursues a defense initiative or similar. Those contracts nearly always include some form of offsetting for matters outside the control of the supplier or contractor.
Yes, I’m suggesting that demanding that the other party adhere to the contract is not an attempt to prevent something from happening. Are you saying that the correct response to breach of contract is “oh well, shit happens”? What do you do if you have a contract to buy a house, for example, and the vendor stiffs you? You can no longer prevent it happening, but you’re sure going to pursue the breach of contract.
Your analogy is flawed. You and your daughter do not (I assume) have a contract regarding the use of your car. In fact, your relationship is familial, not commercial.
You actually found the rub, another flaw of the capitalist system. Why on earth should any nation rely on a corporation for a vital service?
There is an inherent conflict of interest which Marx and Engels wrote about in “The Communist Manifesto” after the British trade war with China over the trade of opium.
Old stuff, but, as we know, this country has been in a capitalist echo chamber for decades and is not educated in the full spectrum of economic theory, particularly the criticism of captitalism and Marx.
You highlight a silver lining of sorts, and certainly a potential route of resistance.
Local and state governments can commit the “offense,” but ONLY the Federal government,w hich made the agreement, either defends the suit OR PAYS THE PENALTY. Of course, it’s the one with the deep pockets.
Next question: why should the aforesaid state and local governments care? In fact, they can mount a very effective protest by ignoring the agreement and imposing high costs on the feds. What can the federal government do about it?
In fact, there is a movement for local governments to express their opposition, since it would constrain them without their consent; there is a threat implicit in that.
Furthermore, if the feds DO find something to do about it, the principle of federalism is gone, banished, over. Our conservative friends aren’t going to like that, and neither are blue states like Oregon that lead on issues like pollution control. So this is another argument that appeals to both sides. In fact, it’s an extension of the sovereignty argument.
A colleague and I tried to explain the TPP, TTIP, TISA and ISDS to our neighbors with this column in the local community newspaper:
http://heightsobserver.org/read/2016/07/28/alphabet-soupuhm-uhm-not-good
We have tried, without success, to get our local city council to declare our suburb a TPP and TTIP-free zone, as I understand thousands European cities have done.
Oops. Also meant to say, thank you, Lambert for an excellent post. Tried to immediately edit my comment to say this, but somehow didn’t get the edit function.
I recently wrote to my two senators and my representative and pointed out that voting on the TPP during the lame-duck session is the very definition of cowardice. On second thought, given that Americans are mainly about bluster and generally are craven, which is why our politics are indeed an endless rerun of U.S. high school, my senators and representative may enjoy being cowards.
Mark Kirk may be a lame duck this fall. His politics are such a mess that I’m not sure how he will vote, even if he claims to oppose TPP. At this point, Durbin has no great need to mollify Obama further. Schakowsky has come out against the TPP but is surrounded by many local “liberals,” you know, charter-school liberals.
Another question is why the famously prickly U.S. Supreme Court has given away jurisdiction in these matters. I realize that treaties are considered the law of the land, but adjudication belongs the the Supreme Court. Unless perhaps the Supreme Court is all about property and not about human rights.
I’m leery of using the word ‘traitor,’ which gets thrown around so much the days as an all-purpose insult, along with misogynist, racist, and patriarchy.
+1. Along with feeding into Cold War revivalism, it skews the argument to a nationalist framing when the antidemocratic impact of ISDS panels could often be local.
Before losing her seat to gerrymandering, Gwen Graham’s (D-FL) office indicated they were well aware that conservatives were angry about ISDS. She’d taken the seat from a Tea Partier, and her staff was alert to issues that would either set them off or serve as a bridge.
The Supreme Court only makes decisions on matters brought before it.
One would think this was something new. The US is a member of a number of organisations which specify arbitration procedures, the WTO being one of them. It’s also a signatory to the New York Convention.
The Supreme Court is a domestic court. ISDS procedures are held under the conventions of International Law.
But the supremes could find the TPP is unconstitutional… Not that current justices would.
Haven’t you heard? The U.S. doesn’t believe in international law. We’re always exempt. Besides, who says the WTO is such a great deal?
Kirk voted in favor of fast track Trade Promotion Authority:
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=114&session=1&vote=00218
I think that how he has already voted in the Senate carries more weight than how he has promised to vote in the future. Whether he wins or loses in November, I think we can expect Mark Kirk to vote in favor of the TPP in the lame duck period.
The TPP, if passed, will not have the status of a treaty, unless it is passed by 2/3 of the Senators present for the vote. There may be some other procedural requirements, too. It will be an “agreement” (whatever that means), so it will really just be another federal law, which can be revoked by a future law.
Ha! Yes, if the TPP passes, I guess we’ll find out!
I’ve written my Senators and Congressman in the past but I will write them again today. Lambert has constructed two brilliant and strongly convincing arguments against the TPP et al. Like you I am reluctant to use the word “traitor” — even as in the construct “economic traitor”. But “surrender of sovereignty” and undermining our “national defense” most plainly expose the threats the TPP and other “trade” programs pose to the United States and to other nations. I will also add a promise to never forget anyone who votes for the TPP in lame duck session or any future Congress. I think the dis-honorific “the Dis-Honorable” might be the appropriate title to forever follow those Senators and Representatives who vote for the TPP. The TPP offers the clearest litmus test yet for separating those who represent the People from those who represent Corporate Persons.
The TPP is 100% Obama’s deal. As you say, to him, it’s his “legacy”. I have no problem calling Obama a traitor for concocting and pushing the TPP. Unfortunately, Democrat loyalists also tend to be Obots, or Dembots. While I totally agree with the concept of identifying any politician or citizen supporting the TPP as a traitor, Dems are going to have massive cognitive dissonance with this approach. We saw the same thing with die-hard Repubs defending George “War Criminal” Bush. I also think it’s pretty clear we’re not going to have any sympathetic articles from the propaganda press, which will continue to push TPP as a trade deal rather than as an abandonment of national sovereignty in favor of corporate sovereignty.
On a side note, some of us who are way to the left are also nationalists. Buying cheap stuff from abroad isn’t at the time of my priority list, for starters. I also don’t believe in American Exceptionalism and waging wars around the globe in the name of commerce (always presented as “humanitarian” interventions).
Stolen from The Office.
I have some good news and some bad news. The bad news is that to get a great deal on US IP, we needed to trade away your consumer rights and sovereignty and allow you to get price gouged by cororates. But the good news is that drug companies and tech companies get their economic rents totally entrenched. Kat-ching!…..
I see you are still thinking about the bad news.
Obama concocted the TPP? That’s a new one. The TPP was being negotiated by a number of Pacific Rim countries well before the US asked if it could join in.
Pacific Rim countries or their/our corporations?
Prior to the US joining the TPP it was pretty much about just trade. Tariffs and stuff. The US strong-armed the other countries into demands placed by corporations. Big Pharma, Big Bank, Big Hollywood and so on.
The only corporate lobby that lost was Big Tobacco.
For our purposes, it’s entirely his deal. And how much did the US change the original plan, in order to join in?
In any case, merely adding highly developed countries to the mix changes the nature of any “trade” deal. You don’t say who came up with it originally, but a deal among countries with comparable economies is very different from one involving widely disparate ones.
Except for ISDS; that gives “investors” sovereignty.
Well done. There is a question of how to make ‘TPP/ISDS is Treason!’ either less ranty, or find a way to yell it loud enough that it makes the point to amygdalas everywhere. There are two viable targets which I have not seen refuted:
1. The ISDS tribunals subverting the Constitution. But Godel noted the Constitution contains provisions for self-reflectively subverting itself, the way you give up the right to a trial by jury of peers when you join the military. And an Editor of the Harvard Law Review might pave the way by proclaiming that it’s okey-dokey enough to make the lame-duck session a serious threat.
2. ‘Washington-based reporters tell us that one potent force in Syria, al-Nusra, is made up of “rebels” or “moderates,” not that it is the local al-Qaeda franchise.’ (Boston Globe via tgs.) Petraeus was explicit. If offering aid to al-Qaeda is not treason, it’s a ‘definition of what is is’ legal hairsplit.
(Footnote/Tangent: “Interestingly, Buzzfeed”. Why is that interesting, consistent with the framing farther up the piece?)
Excellent!! Let’s act on that right now!
great article and I hope it gets a lot of attention. I am constantly impressed by the standard of articles, usually found by Yves and often given some intro and necessary context. It’s a real education for us ordinary Joes & Joannes trying to follow the money – as Freeman said in The Wire. So true yet so scary too?and yet most of all, I’m grateful someone is bothered enough to do the hard years of finding these articles in the first place. Please keep it up…
TPP is loss of sovereignty and democracy and repugnant on those grounds, but treason consists solely in giving aid and comfort to our enemies. For that you have to have a clearly defined enemy, and though some of China’s behavior certainly might warrant the label we have not formally declared it to be one. I don’t see how you can maintain diplomatic ties and do extensive business with a country but then selectively call it an enemy when that suits your purposes. If China is an enemy, every business that deals with it is treasonous. If they aren’t, then promoting TPP is not treason no matter how despicable and destructive it may be. I’m not sure what the right word may be, but given the constitutional definition, treason is not it.
You do know that China is not a party to the TPP don’t you?
Yes. It’s interesting that one of the pitches the US admin is making to east Pacific Rim countries is that the TPP will ‘protect’ them from China’s growing hegemony. The US makes this claim while China pushes into the Sea of Japan and the South China Sea – one of the world’s major shipping routes — without effective response from the US.
Know and forgot while writing–comes of trying to do more than thing at a time. But the error does not affect my argument: without a clearly defined enemy you don’t have treason as defined by the Constitution, you have some other despicable effort to destroy the established law of the land.
The defined enemies are the various corporations pushing the TPP. Exxon, for example, has been an enemy to not only this country, but to this planet, for some time now.
You can’t possibly expect those like Obama, those being accused of committing treason, of declaring a defined enemy. Your argument is circular and, I find, deceptive.
I don’t think so. An enemy of the state has to be identified by the state or an accusation of treason will not stand. Historically, “the enemy” in that context is a hostile state or its armed forces. Citizens’ opinions on whether corporations are enemies of the state can carry no weight unless a case comes before a jury, and prosecutors following the historic understanding of the law are unlikely to attempt that. And even if you regard corporations as your enemy, or the planet’s, giving aid to your personal enemy is not treason, but another form of betrayal. I don’t say it’s less heinous; I might even in this case say it is more so. But I don’t think it can be called treason.
Corporations are colluding to set themselves up as a “foreign power”, not as an “enemy” per se. Letting a foreign (” located outside a particular place or country and especially outside your own country” – Merriam-Webster dictionary) entity dictate, by threats of financial punishment, US laws, surrenders US sovereignty to the corporations’ legal entity. (Corporations that have managed to get themselves domiciled both everywhere and nowhere for tax purposes.)
It surrenders the sovereignty of all nations who sign on.
adding: The trade dispute resolution mechanism of the WTO involves:
“The DSB is, in effect, a session of the General Council of the WTO: that is, all of the representatives of the WTO member governments, usually at ambassadorial level, meeting together. It decides the outcome of a trade dispute on the recommendation of a Dispute Panel and (possibly) on a report from the Appellate Body of WTO, which may have amended the Panel recommendation if a party chose to appeal. Only the DSB can make these decisions: Panels and the Appellate Body are limited to making recommendations.” – Wikipedia
Representatives of member governments… meeting together. The corporations or corporate combinations are not granted “power” status in themselves.
The TPP dispute resolution mechanism, the ISDA, in contrast,
“The key provision in TPP grants new rights to thousands of multinational corporations to sue the U.S. government before a panel of three corporate lawyers. ….
“And if that were not bad enough, many of the lawyers involved in this outrageous system rotate between judging these cases and representing corporations when they sue governments. This is an obvious conflict of interest that is forbidden under U.S. law where judges are forbidden from simultaneously represent private clients. And unlike judges, these corporate lawyers are paid by the hour – on average $375-$600 hourly – to act as “judges,” providing a perverse incentive to keep cases going for years to earn huge sums even if they eventually dismiss the cases.
….
“This system is a major way in which the TPP gives multinational corporations that come to the U.S. even more rights and privileges than the American people and our businesses. This system literally elevates individual multinational corporations to equal status with the U.S. government by allowing them to privately enforce a public treaty by suing our country in special corporate tribunals.” (my emphasis)
-Public Citizen
http://www.citizen.org/Page.aspx?pid=5411
The TPP creates a foreign power, in a way that the WTO does not.
typo: ISDA should be ISDS. (Investor State Dispute Settlement)
Nobody’s making an “official” accusation of treason; it’s commonly used more loosely, for any severe betrayal. “Traitor” also has a wider meaning.
If you wish, you can be more careful and accuse them of “betraying” American sovereignty – a severe accusation, nonetheless.
If Congress is presented with an extensive laundry list of laws to be changed to be “TPP compliant” the assault on the Constitutional legislative powers will be exposed in plain sight. All it would take is a poison pill (like something remotely about abortion) to deadlock the TPP implementation instructions into a tailspin. Think Zika bill deadlock.
How is this an ‘assault on the Constitutional legislative powers’?
If Congress doesn’t like the legislation presented, it can just vote ‘no’.
The point is that this one potential law, the TPP, through its ISDS provisions, could override all other federal laws. ISDS makes the rule of law illusory. We already had an example of that when the Congress was faced with the choice between paying onerous penalties mandated by the WTO, and repealing country of origin labeling for some types of food. Naturally, they caved in to pressure from the WTO. We can expect more of the same if the TPP passes.
The TPP is not a law. It contains no law. It is ratified by each country modifying its own laws as necessary, to be in conformance with an agreement.
ISDS cannot over-ride any domestic law. It can affect financial penalties only. If states choose to change their laws to suit, that’s their decision. A tribunal can neither direct nor enforce such an action.
see argentina and paul singer. and related see ecb and greece. The tribunal can and will impose fines and have a mechanism in place to enforce them. Are you claiming that states will not alter activity under the threat of massive and debilitating (for instance having accounts frozen until payment is made) You are either very optimistic, or a dyed in the wool globalist who sees the need to squelch dissenting opinions.
In the U.S., since the TPP is not a treaty, it will be a law (if passed). There is no Constitutional basis for “agreements” that are not treaties. Therefore, the TPP, if it is to have any authority, must be a federal law.
As we saw in the case of COOL, the Congress and the President rapidly changed the law when faced with onerous penalties when the WTO rules against the U.S. Many other countries have done the same. To say that ISDS cannot override any domestic law is true in a narrow legalistic sense. In reality, it is completely false. Faced with multimillion dollar penalties, few countries will hesitate to change their laws to comply with ISDS rulings.
Not passing the TPP would appear to be a more effective way of preventing corporatist profit protection laws from being passed to support it than fighting each one of those laws domestically, given the disparity of resources between corporatist upporters and opponents.
What the fuck are you talking about ?
TPP is much worse than a law: it´s blackmail. Pay us what we want or change your damn laws.
Nice little public health laws you got there; shame if something were to happen to them.
This is how the mafia operates.
X1000!!
What’s worse a permanent, completely unaccountable Star Chamber, the “Regulatory Coherence Committee,” is set up to actively search for opportunities to blackmail formerly sovereign nations.
http://www.citizenstrade.org/ctc/wp-content/uploads/2011/10/TransPacificRegulatoryCoherence.pdf
You are being ridiculous and obtuse on this point. Losing in ISDS means WE TAXPAYERS are penalized and have to pay the corporations OUR tax dollars to prop up their fantasy “lost profits”. THAT is bad enough. Second, the Congress will NOT pass laws that they believe will violate any provision of TPP so many MANY consumer, worker, environmental protection laws, and even regulations, will be stillborn. Killed off before going into force because NO congressman is going to pass a law that leads to penalties paid to corporations on an ongoing basis. OF COURSE states will be compelled to change their laws so the US government doesn’t have to keep paying penalties to corporations.
I don’t want a single penny of my tax dollars going into CEO bonuses for nonexistent “lost future profits”. You start a business, then you suck up the fact that you can go out of business due to unprofitability FOR ANY REASON.
Do you suppose the Congressmen and women have read it?
http://www.prosperousamerica.org/151116_action_have_you_read_it
correct me if i’m wrong but is not the point made in the article that the 80 odd legislators who lost or retired can vote purely in their own self interest for million dollar lobbying jobs, and also do not those lobbying jobs pay a million because it makes tptb all that many more billions?
There is no laundry list of laws that have to be changed to be TPP compliant. The ISDS is predominantly civil in nature and deals with monetary damages. The government can regulate anything it wants, but will be obliged to make up “lost” profits anytime it interferes with business. You can have all the regulation you can pay for.
Buzzfeed has an informative article.
See my posts elsewhere in this thread. The Government is not required to make up profits any time it interferes with business. It may be required to compensate an Investor if it breaches the agreement, and that causes damage to the investor. But a change in, say, minimum wage rates, would not be grounds.
And it breaches the agreement if it doesn’t pay the damages assessed by the ISDS court. This is weaseling.
A long legal article on buzzfeed on legal aspects of ISDS
I have to run so have not read it, but looks like a useful link
The Court that Rules The World: A parallel legal universe, open only to corporations and largely invisible to everyone else, helps executives convicted of crimes escape punishment. Part one of a BuzzFeed News investigation.
Interesting that the first error is in the title!
‘Open only to corporations’ should read ‘open only to investors’.
yes, absolutely, this thing is totally for my mom to protect her investments /s
Even taken as baldly as you state it, “open only to investors”, it is an extra judicial system of civil law only open to those with spare cash: this is a narrowly propertarian overwrite of civil due process. Obviously corporations can be investors while poor people cannot.
And corporate decision makers can arrange lack of proximity between themselves and the externalities of their investments while the poor cannot.
“Our military is now shockingly vulnerable to major disruptions in the supply chain, including from substandard manufacturing practices, natural disasters, and price gouging by foreign nations. Poor manufacturing practices in offshore factories lead to problem-plagued products, and foreign producers—acting on the basis of their own military or economic interests—can sharply raise prices or reduce or stop sales to the United States.” – Brigadier General (Retired) John Adams
“can sharply raise prices or reduce or stop sales…” on things like rare earths and lithium, used in missile guidance systems and advanced communication devices. China has become the primary source of rare earths. (the US once manufactured most of the rare earth/lithium compounds) Not that China would slow or halt sales in a dispute…
http://investingnews.com/daily/resource-investing/critical-metals-investing/rare-earth-investing/rare-earth-wto-dispute-heightens-china-us-divide/
The Adams comment reminded me of that quote Lenin may or may not have said about rope. The 21st century, up to date, bells and whistles public version:
Globalists outsource rope and F-35 critical supply chain.
Hire H1-B Visa people to engineer and code.
Solicit state and local welfare subsidy for H1-B living expenses.
Gin up property tax forgiveness for new HQ.
Arrange tax-free financings through Special Investment Vehicles (at this point, they are self-driving).
Sell shares to CalPERS.
Collect management and performance fees regardless of performance.
Send bill to American public through ISDS Obama-Put mechanism.
I think focusing on access to medicines is an issue with cross-party appeal also. “Sovereignty” is a little abstract (although I think we should take this tack too), but higher drug prices is concrete. Doctors without Borders and others are constantly pointing out the drug price implications (it will raise drug prices both here and abroad).
Alas, I agree. On a slightly more benign topic, one day while eating my lunch at work, a colleague began a discussion about local tribes not paying taxes and how wrong that was. When I brought up the issue of sovereignty, the employee started screaming, sovereignty didn’t matter, the tribes had to pay taxes!!
It was pointless to try and explain what sovereignty is.
I used to think empathy was a shared human characteristic. I’ve come to realize it’s actually quite rare.
I had exactly the same thought – while wallowing in despair – as I read the Buzzfeed article. Short of hanging a few ISDS lawyers for treason how do you get that genie back in the bottle? Cancel all of the thousands of “trade treaties” that include ISDS?
Exactly. If you call it treason, then a whole lot of trade agreements must be canceled forthwith and many thousands of negotiators and attorneys and employees of entire departments must be sent to trial if not to tumbrels and the guillotine.
The ruling class want these agreements pretty much as they are. After all, they are the ones who negotiate and benefit from them. The rest of us can pound sand as far as they’re concerned. There is no alternative, and there is nothing we can do to alter the inevitable course of events.
Short of the overthrow of the ancien regime, what is to be done?
@Craig Welch — What is your position/opinion of the TPP? You’ve done a nice job of correcting errors in our understanding and thinking about the details of the TPP — though sometimes it seems you are skinning fleas here and there [cases where a statement made is false or inexact but the intent of the statement and often the reason for the mistake is seems clear — e.g. the statement about ISDS proceedings being secret @ArizonaRoadrunner.]
So what is your position/opinion of the TPP and why?
I am opposed to the TPP. As I mentioned in another post, the US strong-armed the other countries into demands placed by corporations. Big Pharma, Big Bank, Big Hollywood and so on. It has implications for patents, biologic data protection, copyright and so on that have no common sense reason for being part of a ‘trade’ agreement.
As for ISDS secrecy, I’ve quoted the actual paragraph in the agreement – what more can I do or say?
Thanks! I don’t question the correctness of anything you have written here and I greatly appreciate the expertise and breadth of your knowledge in this area. My comment was to suggest that the tone of your corrections seems slightly niggling at times.
Given your knowledge of this issue I became curious about how you stood on it and — though all opinions are or should be welcome here — I’m gratified that you are also opposed to the TPP. You help educate the rest of us. It’s hard — and embarrassing — to argue a position if I get my basic facts wrong. Thank you again.
If you are against the TPP, what are your reasons for opposing it?
What points do you single out as objectionable, and why?
Thanks.
Good question to put to Craig Welch! I shouldn’t have let him off so easily. Someone knowledgeable will probably have lots of strong arguments for their position.
For me — just the way the TPP et. al. are being or were negotiated suffices to elicit my suspicions and knee-jerk opposition. Add in the ISDS tribunals and that ices the deal. I’m not happy with the government we have but I most certainly do not want a de facto government by ISDS tribunals.
One problem I have with the National Defense part of the argument against TPP is the extent to which National Defense is already compromised — without further help from the TPP — by the deconstruction of American Industry and export of “know-how”. — Little bit of the closing the barn door after the horse has left.
I do believe if both parties agree that the ISDS case will not be public. Unfortunately I can see that occurring. Do correct if I am incorrect in this assertion.
Does it really matter if the case is public? A train wreck isn’t much improved by being able to watch. Besides — how many things are public but wrapped up in so much obscure jargon and innuendo that only insiders really know how bad the screwing is.
I only focused on that tiny issue as a particular to use for suggesting a somewhat lighter hand for correcting errors. I must apologize if my purpose was unclear or out-of-line.
Many thanks to Craig Welch for intrepidly defending accurate information. I am dismayed by how many respondents have attacked him as a secret globalization supporter who wishes to harm Labor, for merely pointing out misapprehensions about the TPP.
Ugh! I do hope you didn’t count me among the attackers. I don’t always do it myself but I believe correcting people is something done with a delicate though firm hand. I very much appreciate Craig Welch’s defense of accurate information. He clearly knows the facts well but I didn’t notice any indication of his stand on the issue — which made me curious. I might start to question my opposition to the TPP if someone as knowledgeable as Craig Welch favored it and I would definitely want to hear any arguments he might made in its favor were he to favor it — which he indicated he does not.
Congressman Poliquin (R) Maine, says he’s opposed
Per his August 4, 2016 letter to constituents, “After poring through the 2,00 pages of the deal, I have concluded it is NOT in the best interest of our Second District workers and their families.”
Here is the link again
WikiLeaks – The US strategy to create a new global legal and economic system: TPP, TTIP, TISA.
Beware of zombies
The national defense argument is one I have used writing my to my own conservative Republican US Representative, who voted against fast-track and has stated he will oppose TPP. My small-town west conservative friends and co-workers are totally on board the argument — they seem to have reached a kind of “enough is enough, this has gone too far” line.
ISDS can also be viewed as a case of rent-seeking — nations will be charged for using their legislative powers in ways that violate the rules. Countries will still be free to use their powers, but only for a price, if they stray off the reservation. Where once there was a free space for self-determination by nations, now somebody else “owns” it and can charge us for the privilege of using it.
In addition to ISDS, Senator Jeff Sessions has pointed to provisions in TPP which will create power for future rule-making within TPP-created bodies — another encroachment on sovreignty. The space for free ability to legislate will shrink. I bring this up talking to people — TPP seems to be removing regulation, but actually adds another layer of control and more rules — and everyone gets it.
In conservative cow country these arguments have easy success, and the pro-TPP “free trade” memes have zero traction. The Country Of Origin Labeling (COOL) repeal law passed last June to execute the WTO decision against the US is connected by all with the 30% to 40% drop in cow prices last Fall. I can see support on the right for “free trade agreements” collapsing every day.
I am a really long-term reader and I have been wondering of late what’s up with this Lambert person and the various hidden and not so hidden pro-Trump positions. Nationalistic, jingoism is alive and well in so-called extreme left land. Congratulations.
Dear Ajay;
You consider this blog to be infested by “extreme left(ies)?” Oh my, you don’t get out much, do you.
how many extreme lefties do you imagine they would encounter if they “got out”. While this is not an extreme left site, the “extreme” left is actually very small in the U.S..
well a lot of us are wondering what is going on with this clinton person that the democrats have foisted on us, and the various hidden and not so hidden neocon and neoliberal positions she supports. this doesn’t imply trump support. or nationalism, or jingoism. heck, you don’t even have to be an extreme lefty.
Saying not nice things about Hillary is not pro-Trump either hidden or not so hidden. If those of us on this blog say anything positive about Trump — at least if I say anything positive about Trump — its as a salve. I strongly oppose both Hillary and Trump and I have limited inclination and no enthusiasm about the Greens. The way past elections have worked — one of the two major party candidates have come out the winner. I’m not ready to vote for Trump — though the lesser evil argument grows stronger as Hillary’s corruption and inclinations toward continuing and possibly expanding war become more clear. If I had to choose between Hillary or Trump and couldn’t leave an undercount, vote Green or write-in Sanders — I’d take Trump. For me the TPP and the other “trade” deals are make or break issues. I think Trump is sick joke but he seems more committed than Hillary to not sign the TPP if it comes to his desk. The Vice-President selections by both candidates are highly problematic and worrisome. I agree with the opinion expressed by a commenter here that no matter whether Hillary or Trump wins we are going to see another “Charlie McCarthy/Edgar Bergen” [or “Mortimer Snerd/Edgar Bergen”] relationship between the President and the Vice President
Please specify what you consider to be nationalistic and jingoistic elements in the article, and point out the hidden and not so hidden pro-Trump positions. Give us the evidence!
The left has usually been internationalist — does that mean every international agreement is good?
Popular control has always been a left position; a sovereign nation-state has usually been the instrumentality through which such control has been exercised, when it has been. TPTB, with TPP, are trying to do an end run around the legislative function of the representative lawmaking body, and replace it with very non-representative institutions that can penalize us for realizing the public’s political will. How is supporting the basis of popular power and legitimacy against a illegitimate scheme like TPP pro-Trump? Why would anyone on the left not avail themselves of a good argument for its defeat?
I just sent off an e-mail missive to my local Rep. Lite Member of the House.
The treason argument looks good in pixels.
Also good to see in ‘print’ is the argument that the cession of sovereignty is anti-Conservative philosophically.
Curious that this man has nothing on his web page about TPP and TTIP yet. Time to hold some feet to the fire.
{The left critique on TPP starts with how it hurts labor, and moves on to how it hurts the environment. The difficulty here is that these critiques don’t appeal to the right …}
Depends. If you were to have outreach to the right as part of this, who would you be targeting? If it’s the congressmen on the right, then I would agree with your assessment.
But if your outreach would be to the people who would vote for Trump, I think you would find plenty of common cause on “hurts labor”. Without them, Trump wouldn’t have captured the nomination.
And their target is bigger than the TPP. It’s balanced trade for all trade, whether covered by NAFTA or WTO (China) or whatever.
As I can attest from firsthand experience, THIS ARGUMENT WORKS. I’ve said this or alluded to this at least a couple of times before in comments, at least once recently, but I dunno who or how many see what, so I figure it’s worth mentioning again.
My Republican House or Rep guy was initially on the fence about fast track when it came up, and I both called and e-mailed his office and very politely focused on how the ISDS was a corporate powergrab against national sovereignty. I also complimented his areas of past performance in office that I approved of, and that I have a small business which in part serves a clientele that is near and dear to his heart, and I really appreciated and respected all the good work he had done on behalf of those people, that I had voted for him in the past (true! and I had good reason*) but that I would never again for so long as I lived vote for anyone who supported the TPP or fast track, making pretty much exactly the case Lambert did above in different and many fewer words (I could have told you exactly how I focused and phrased at the time, but it’s been a while and I don’t have the time/energy/patience to look this up now).
Clearly, I wasn’t the only one making this case, because when he came out very strongly against the TPP and even publicly campaigned against it, he particularly cited the unprecedent level of concern among his consituents, so I assume I wasn’t the only one (I can’t imagine one call and e-mail did that by itself). OTOH, he did make exactly the sovereignty and national interest argument that we’re talking about here. I grew up in small town Alabama coal mining country to a family full of very right wing conservatives, and I work with a lot of conservative types, and yes, very much, the national sovereignty issue is a biggie where we should all, on both sides, be in sync (unless you favor a William Gibson/Richard Morgan/Jon Walters Williams sort of cyberpunky rule by competing corporations where countries have about the sovereignty level of cities and towns, then you should be all gung ho yay TPP)(note that these authors are not endorsing these worlds, and in the case of Morgan in particular it’s more like viciously assaulting them). (worth mentioning: it’s not that conservatives don’t care about labor or the environment, or at least lots of conservatives do, some of them very much, they’ve just bought into misinformation about these areas)
I’m not saying people should follow any particular script, but being polite and even friendly, letting them know you know something about them–ideally something you can truthfully say you approve of!–and that their vote will affect your vote are all nice adds to the whole “this side is the right side/don’t give away our sovereignty to multinational corporations or we will hate you” bit. (should go w/out saying “we will hate you” is probably not a good phrase to use here, but wanna say it anyway).
*As far why pretty far left of center on most issues me voted Republican, well, Cali has open primaries, and it was this guy, the incumbent, vs. a genuinely frightening far right idealogue. I researched this guy in depth, noticed he actually had done some worthwhile stuff while preferring to soft-pedal or avoiding many things I thought particularly noxious about Republicans, and decided I’d rather keep him than try the outright crazy Minuteman guy to see if he destroyed the Republican party through his craziness. I now feel very vindicated. Will almost certainly vote for my current GOP rep again because his this-time Democratic opponent in the run-off has taken no position whatsoever on the TPP, has a couple of positions I feel are disastrous, and also failed to take a position in the Dem primary. The TPP is a voting issue for me–it is THE voting issue this time around. Dems who supported Hillary in the primary are an automatic no vote forever for all time, same as any who support the TPP at any point, but simply playing coward or being too dim to see the difference or identy politics = outcomes for importance is also a pretty big negative that is very hard to overcome (and no, I don’t see any other possible reason to stay out of it than those three, and yes I’m still ticked off and not likely to cease this any time soon). So, yeah, I can be completely honest with my carrot as well as my stick.
In general, I think it’s better if everyone is honest on these things cause it will probably just make your whole tone on the phone call better, and that shouldn’t be too hard–almost every congressperson should have *something* you can compliment, you don’t have to say you voted for them if you didn’t, but you can still truthfully say this will be determinative of your future votes. You could also bring up the US being successfully sued under the WTO over country of origin labelling, and how the ISDS is sort of the WTO dispute resolution on steroids, and point out how even succesfully fending off these lawsuits could cost a lot of time and money and have a chilling effect, basically making the US hostage to the whims of corporations who wanted to sue us (if your congressperson is more left leaning, Bernie’s Phillip Morris Uruguay example is also a good one, and the US successfully suing India for subsidizing solar is a great one about how these kinds of deals can work, tho again, these examples are better suited to the left). OTOH, probably best to keep the phone calls short and sweet; if you wanna go detail, snail mail or email.
Thanks again Lambert for continuing to hit on this topic.
This is an idiotic, worse, a counterproductive framing.
As somebody pointed out in the comments, it reinforces “traitor” and other national security repression memes. Furthermore, it reinforces the “government is the problem” narrative. It calls into question any attempt at international agreements – this narrative works so much better in opposing e.g. arms control efforts that will “weaken the US military”.
This is about as brilliant as the disgusting “sit-in” to leverage the no-fly list as a vehicle to “frame” the debate on gun control. The question is not whether sovereignity is surrendered, but which parts of it, how, and for whose benefit. Frankly, a weakening of the “Best National Defense” – perpetual offense – might actually be an win.
You make 3 assertions with no supporting reasoning or argument. Care to elaborate?
yea don’t care, don’t care and don’t care. Because whether or not arms agreements are signed has nothing to do with ideology (internationalism or not), that’s not what drives that. So why strive for some ideological purity? Play dirty, our enemies do.
If I thought internationalism meant the Geneva conventions, the universal declaration of human rights etc., it would be one thing, we all know it doesn’t.
Calling TPP traitorous does seem overdrawn to me — treason has a specific, and probably not applicable reach.
But the national defense and national sovereignty charges against TPP are accurate and have a lot of political traction — I’ve seen it when I use the arguments. Using national defense rather than national security opens up the question of whether global forward deployment (“How come we have 800 overseas military bases to defend us, but no interceptors were on patrol off the coast on 9/11?”) is effective or affordable or worth it. Were we in Vietnam or are we in Iraq, Afghanistan or Syria to defend the United States? Is our defense improved by having our forces being worn out elsewhere? Arms control is easy to justify from a national defense perspective — negotiated reductions in, say, nuclear weapons will reduce the chance of inevitable world destruction if they are used.
TPP fits right in if approached from the viewpoint of national defense — if you have no skilled domestic production sector remaining, you have little independent defense capability.
I recently finish Rome to 565 by Boak. Rome put outposts out to the borders, but didn’t keep enough troops within the interior, so that when the Barbarians came in greater numbers there were no armies to stop them.
Your reference to the Interceptors & the 800 outlying bases, and then the rest of it all, so much, so much to keep track of, prompted the comparisons that have been helpful to see replicated by the US Empire.
The US does desire to run the world, or it would more support and reinvent the UN so that the UN worked to prevent the murders, slaughters, starvations of civilians.
I am a strong supporter of the Points for Reinvention of the UN as written by Former Chairman of the French UN Association Andre` Lewin. (March 15, NYTs 2003) – I have the complete text because Amb. Lewin added my point as concerned UNTV and we had a correspondence.
Desperate times demand desperate measures. A supranational court controlled by corporations that has the power to block any not-neoliberal policies based on the lost profits doctrine? Worse than any of the effects that you list. Far, far worse.
It is all about the meat. Arbitration panels like this are preventing consumers in the US being informed as to the country source of their beef. I would buy beef from New Zealand, but not from China. We lost our sovereignty — it is important to give real world examples. Also, refer to tobacco in South America.
In my opinion the term “treason” is too militaristic. What the trade deals do is facilitate corporate racketeering. They negate national laws and regulations. True, recent Attorney Generals looked the other way rather than jailing CEOs; but, we could be one election away from an administration that equitably enforces the law. If these trade deal are passed, there will be no protection from corporate predation. For example, charging families $600 for an EpiPen. Continued globalization at the expense of democracy is a sure guarantee of civil unrest.
If Aaron Burr wanted to sell out our national sovereignty to England, would George Washington consider him a traitor? Of course he would. When considering use of the term you have to think hard about all our past generations have sacrificed to keep our national sovereignty intact – and someone wants sell out our history with a signature??!! We’re in a battle (don’t deny it) for the very soul of America, so of course, yes it’s treasonous. Saying it isn’t is playing into the hands of neoliberal neocons. There are some things that should never be compromised, our nations dignity and our God given rights for one.
Would those that fought in the Revolutionary War consider the TPP and it’s ilk treason? How about those that fought in the World Wars? You need to consider them and what they would feel about it because that inherently is who we are.
We learned in early school out of textbooks that Nationalism was to blame for WWI. German Labor & French Labor fought each other for their nations.
I remember believing in a much more powerful UN.
I never thought that I would return to a belief in Nationalism. Further while I thought it would be cool to be around for the end of the world, I am not really for it and do what I can to fight Apocalyptic Riot.
I may have to do more.
I’m not able to leave anymore.
Life on Mars? I guess it will be run by the corporation that gets people there.
P.S. This is essentially the thesis of Ralph Nader in his latest book.
Not sure whether it was mentioned anywhere, but Europe (well, German Economy minister) is saying that TTIP is dead
http://www.independent.co.uk/news/world/europe/ttip-trade-deal-agreement-failed-brexit-latest-news-eu-us-germany-vice-chancellor-a7213876.html
Haven’t read through all the comments so I apologize if anyone has already made this observation.
Not trying to be sarcastic but isn’t the whole point of Hayek/ anarcho-capitalism/ neo liberal project based on diminishing the authority of the sovereign nation state?
I think one of the keys to the remarkable transformation of the globe since the end of WW II has been based on the belief (a fictional narrative IMO) that the world is still ordered on the primacy of the Nation State ,even as one policy after another has been adopted to the contrary.
Back in 1970 when I was taking my first economics courses, my recollection is that the implications of the neo liberal Chicago boys was being openly debated. Its not as if ideologues are obligated to explain something to people who can’t or won’t connect the dots.
I for one, see the world more closely ordered along the lines of the Medici or the Hapsburg’s, in the sense, that the elite are not restricted by language, culture or nationality. They are restricted only by number of domiciles they can accumulate.
It is a lousy situation but to be fair ,nationalism didn’t exactly cover itself in glory in the 20th century either.