Have you heard of CETA, cousin to TTIP?

[BungoWomble]

I hadn't.

We have all been sold out. As if GATS wasn't bad enough. All these ISDS are bad news.

leftfootforward.org/2015/10/meet-ceta-ttips-dangerous-cousin/

touchstoneblog.org.uk/2015/10/ceta-ttip-petition-eu/

[claig]

'We have all been sold out'

Who sold us out?

[unexpsoc]

Thanks BW

I will have a look tonight. I don't remember the EU being put in place so that we would fall foul of this kind of sh*t.

[PausingFlatly]

"Advocates of CETA have tried to assure us that public services are protected in the deal. This is clearly false. There is no carve out for public services from the investment chapter of CETA and inadequate carve outs in the market access chapter, which mean that states are laid open to challenges for regulating their public services in ways that can be interpreted as disadvantaging foreign investors."

That's actually worse than TIPP, isn't it? Which IIRC has some protection for public services, even if it's feared to be inadequate.

[BungoWomble]

All of the bloody neoliberalist politician fools in Europe and across the Atlantic who've negotiated this and the damned TTIP. It's these ISDSs, which pretty effectively hand national sovereignty over to any private company that wants to make money out of us. They fairly effectively mean that ordinary people have lost the public domain, and all public services, unless the profiteers allow us to keep a few scraps because they can't make money out of them.

[BungoWomble]

[PausingFlatly]

Indeed, unexpsoc.

There are people who are against the EU specifically because they feel it undermines sovereignty. There's a whole segment of the Tory party Cameron is struggling to deal with because of this, for example.

I'd expect such people to be automatically against TIPP and CETA for the same reason.

[eurochick]

If the state treats foreign investors unfairly, shouldn't it be held to account for that? I know I want to live in a country in which foreign investors cannot be discriminated against. There is an awful lot of scaremongering about these treaties.

[BungoWomble]

I don't actually believe that leaving the EU is the best answer to these deals. In the case of TTIP, at least the EU can negotiate on an equal footing with the US. I don't think the UK alone will do anything other than ask 'how high' if the US says jump. I'm not sure about Canada. But if this one has actually gone through, at least leaving the EU would gain time?

[BungoWomble]

The trouble is eurochick that 'unfairly' can mean daring to have an NHS that believes healthcare should be available for all at the cheapest price for all, or having an education system that attempts to educate in anything other than being a good consumer, or any other public service and infrastructure that is there fundamentally for the good of the people, all the people, not the rich private company owners.

As for looking after foreign investors, how much interest do you think they have in our welfare and wellbeing? Our own 1% care little enough, you think China's are a bunch of philanthropists do you?

[PausingFlatly]

eurochick, our idea of "unfairly" may differ slightly from a multinational's idea of "unfairly"...

Classic examples include Philip Morris vs Uruguay and Philip Morris vs Australia.

In both cases, the governments were passing legislation about packaging design, affecting all tobacco companies equally. But Philip Morris tried to claim the govts weren't allowed to do this.


"The Philip Morris tobacco company is currently suing the Australian government over its tobacco plain packaging legislation, using an obscure 1993 Hong Kong- Australia investment treaty. Philip Morris is actually a US-based company, but could not sue under the US-Australia Free Trade Agreement, because public opposition kept this clause out of the agreement. Philip Morris rearranged its assets to become a Hong Kong investor in order to use an obscure treaty." Australia Fair Trade and Investor Network

It has taken four years and cost the Australian govt millions to win this case. And IIUC they managed to stop it at step one, where the court decided it didn't have jurisdiction. It could have moved to step two and gone on for much, much longer.

[BungoWomble]

The other weird thing is that the global economy will crash again if it doesn't find some kind of balance with the needs of the ordinary people - it's already going. They can't just keep pumping out consumerist goods, they can't create markets when no one has the means to buy anything. An economy cannot exist independently of people fgs. It needs a public domain.

That's before we get onto the problem of how consumerism and the global economy is wrecking the environment and therefore will kill people, and therefore will destroy their precious markets.

[unexpsoc]

If the state treats foreign investors unfairly, shouldn't it be held to account for that?

Yes. With limits. A state should retain the right to protect and provide for its citizens in line with a democratic mandate. The rights of foreign investors should not override the rights of individuals.

[eurochick]

Surely the point with the Philip Morris cases is that justice was done - the cases failed. Most cases do fail. Only around 43% of investors prevail. I could bring a case in the English court tomorrow claiming that the local council stole my dog. I would (rightly) lose (I don't have a dog) but that doesn't mean that the law shouldn't protect against dog thefts or provide a forum in which such disputes can be heard.

There is a lot of established case law on what is fair. People are not just making this stuff up as they go along. It is quite a high bar to reach.

[PausingFlatly]

From the 2014 article linked about Uruguay:
"The tobacco giant’s attack on Australia, which is ongoing, led New Zealand to U-turn on a decision to follow its bigger neighbour with plain packaging."

Because of the cost.

Similarly, your example about the local council assumes the council has the funds to blow defending your frivolous action. If you look like you are determined and prepared to bury it in paperwork for years, it might decide to settle out of court even though both of you know you're wrong.

[PausingFlatly]

So in NZ just the threat of action, against a country whose pockets are not as deep as the multinational company, was enough for the company to win.

[BungoWomble]

eurochick I'll just quote from that 2nd link in my op "While foreign investors get special, secret international courts to claim their rights, CETA gives workers, citizens and consumers nothing: no courts or sanctions against those who violate core international labour standards, product safety or environmental protections. In other words, corporate interests get all the rights, opportunities and protections without any responsibility for their actions or having to exercise any social responsibility for the welfare of their workers."

Look at the kinds of cases brought under various ISDS laws mentioned in both, how are they 'fair'? What does that word even mean? You need to have two parties equally capable of negotiating to reach a compromise that will work for both.

Law, like everything else, is ultimately under the control of politicians, and if they're under the control of these foreign investors, or even local investors, laws will get changed in their favour. Remember the US' famous Mickey Mouse law? Copyright law here is also heavily skewed towards the needs of private companies now. Meanwhile poorer individuals in the UK have no recourse to the law nowadays.

[eurochick]

Workers and citizens have the protection of local courts, as they always have done. The treaties are designed to encourage international trade and in return the host country promises the foreign investor that it will abide by certain standards, e.g. Not to discriminate against the foreign investor in favour of a local company. They are intended to level the playing field.

[BungoWomble]

"The road to hell is paved with good intentions"

I picked up on CETa via this report about how ISDS elsewhere are being used - leftfootforward.org/2016/01/who-will-benefit-from-ttip-huge-corporations-and-the-super-rich/

Apparently the win rate for goant corporations is 71%. A bit higher than your 41%. And much much higher for the big corporations than for the small. It's levelling the playing field for the big corporations to come in and bulldoze what they like.

Local courts and local workers do not have the ability to fight large corporations through law. The laws will change in their favour. Law used to be the weapon of the rich against the poor, back in the Victorian times these neoliberalists tell us were so wonderful (for them) and it is going back that way.

[BungoWomble]

You seem to think laws are absolute. They're not. They are as pliant as any cultural value, and without a functioning democracy they are increasingly under the control of a rich propertied elite who have no idea what it is to live on minimum wage, who can spend an annual minimum wage on one meal.

[eurochick]

I'm a lawyer so thanks for that valuable lesson on what law is.

I don't think you really want to debate this. You are entrenched in your anti isds views and are just going to keep posting links to support those views. Have you actually read the text of some BITs? The vast majority are available on the UNCTAD site. Have you read any investment arbitration awards? Many can be found on the ICSID website. If you have a look at some primary sources rather than just reading blogs and articles setting out the opinions of others you might be pleasantly surprised about how the isds system works in practice.

[BungoWomble]

Yes I'm as entrenched as you are. I can see the fallout down here in ordinary folks land. You're refusing too. Go read the history of your own profession.

[eurochick]

I'm not entrenched at all. I've looked closely at the pros and cons of the investment treaty system. I've read widely around the subject and heard a lot of prominent speakers discuss it. I've even spoken myself at some conferences. I'm writing a 5000 word piece at the moment for a legal journal on one such case. I've seen the system at work and I know it has its faults. However, having looked at all the sources I have looked at, I have concluded that on balance the positives outweigh the negatives.

[PausingFlatly]

Do you mean the positives outweigh the negatives for the concept of ISDSs, eurochick?

Or that the positives outweigh the negatives in the cases TIPP and CETA? (And positives and negatives for whom?)

[PausingFlatly]

Because none of the intentions you describe were applicable in the Philip Morris case.

There was no un-level playing field.

The governments of Uruguay, Australia and indeed New Zealand were not attempting to discriminate against a foreign company in favour of a local company.

Yet the New Zealand government altered its actions about sales of tobacco because of the threat of the legislation being used against it. The process IS the punishment.

[eurochick]

And the Philip Morris case failed. So the fact that NZ experienced "regulatory chill" from a case directed at its neighbour could indicate caution or that it was poorly advised. I doubt anyone on this thread is privy to the legal advice received by the NZ government on this point.