Investor State Dispute Settlement (ISDS)

(Deutsche Untertitel, Sous-Titres Français, Subtítulos En Español)
This film presents some of the dangers of the investor rights within the proposed EU-US trade deal. We need to stop this corporate attack on our democracy and policies to protect the public interest.

Introduced in the TTIP, ISDS allows corporations to sue governments, such as that of the UK or of the EU, for any government action (at any level , including local government level) that limits a corporation’s future profits. the corporations can sue for the loss, or ‘expropriation’ of its future profits.

The case will be heard by an arbitration panel of trade lawyers, in a jurisdiction of the corporation’s choosing.

The dispute panel will only take account of ‘free trade’ values, disregarding values of public health, human rights, environmental protection, or labour or other social rights .

The justification for introducing ISDS was for trade deals with countries where the judicial system was not developed or robust enough to protect foreign investors. This is not the case with either the EU, EU Member states or the US.

So the reasoning now is that national courts, and even the European Court of Justice, which has tended to rule for corporations anyway, may be biased, thus ISDS ,with arbitration panels, is required.

ISDS is place in other trade agreements around the world, for instance in the North American Free Trade Agreement (NAFTA). There have been many ISDS challenges. The outcomes show that ISDS frequently leads either to big payouts to corporations from the public purse, or, perhaps more seriously, a chilling of legislation, with regulators afraid to act for fear of being sued. The sorts of regulations most likely to negatively affect future corporate profits are those supporting health and safety, the environment , workers’ and other social rights.

This is an international ‘trade’ agreement so this remedy is only available to foreign corporations or transnational corporations using a cross-border subsidiary.

ISDS is the enforcement means to hold the rest of the agreement in place., regardless of, for instance, changes of government.

ISDS is included in the Canada /EU free trade agreement (Comprehensive Economic Agreement – CETA). However, although this was signed ‘in principle’ in mid October 2013, it is still being negotiated and the text of the agreement is still secret.

As at January 2014, there is growing civil society resistance to ISDS and its inclusion in TTIP negotiations. The commitments that the EU is making about ‘transparency ‘ of arbitration panels, the exclusion of ‘post-box’ companies and of ‘frivolous’ claims ( undefined) , these do not change the basic structure of ISDS provision and it is to this that organisations are objecting.

In the EU’s previous trade agreements, including in its engagement with World Trade Organisation agreements, the dispute settlement has been state-to-state, and the remedies only about trade sanctions by one state towards another. Private corporations are not able to sue governments under these conditions, even through disputes are generally brought by a government on behalf of one or more corporations.

E.g the Australian government’s plain cigarette packaging legislation, introduced as a public health measure, was first tested in the Australian High Court in a case brought against the government and its legislation by British American Tobacco and Japan Tobacco, supported by Phillip Morris International.

The Australian High court judged for the Australian government and the legislation.

Immediately after (5 hours later) the government of The Ukraine lodged a dispute against Australia at the World Trade Organisation, in relation to Australia’s commitments under the WTO Trade Related intellectual Property agreement, TRIPS.

The Ukraine has no tobacco trade with Australia but does have a Phillip Morris International subsidiary based there.

Although Australia did not respond the first time the dispute was brought it has to the second time.

In parallel to this Phillip Morris International is bringing a case against Australia under its Bilateral Investment Treaty with Singapore. BITs have included ISDS provision.

Now Australia is not signing up to any more ISDS in trade deals and wants to be exempt from ISDS in the negotiations on the Transpacific Partnership (TPP).

The long but very much hitting-the-spot debate organised by FOEE in Brussels with one of the biggest snakes in the Commission.

http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%208614%202014%20INIT

Glyn Moody TTIP Conference, including explanation of economic claims 0 -19 mins

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