Proponents say it will be good: Good for trade, good for the economy, good for all of us.
Detractors say it will be bad, by ceding to foreign investors (read: "transnational corporations") "our" sovereignty over our laws, regulations and public policy, municipal, state and national, granting "shadowy" tribunals the power to arbitrate where we understand our courts are chartered to adjudicate, and generally eroding rights and protections for persons, laborers, employees, and everyone but the masters of capital and minions.
As far as such assertions by advocates and opponents go, they're probably all correct. And they're all similarly worthless for their vagueness, claims to universality and general lack of context. And, anyway, no one can make credible or verifiable claims about contemplated provisions of the draft agreement because the drafts and negotiations are secret. Completely secret. Except for the occasional odd senator willing to submit his or her stylus and notebook, and representatives of our own favorite nominally-American transnational corporations, their executives, their lobbyists, their PACs, their chambers of commerce and their centers of excellence.
WikiLeaks has published several documents purporting to be draft chapters from the treaty. The chapter on investment caused substantial stir and widespread, although mostly insubstantial, discussion of the treaty's promised doom or benefit. Few of those discussing the treaty do so in such a way that their broad assertions concerning its impact carry the speaker's self-evident, responsible, immersion in the context and subject matter of international investment, and, particularly international investment dispute. Instead they offer generalizations of glowing platitude and ominous misfortune.
Context matters.
International investment treaty dispute arbitration is one prodigiously corpulent corpus of context, and, as such, difficult to meaningfully discuss in soundbytes, seventh-grade-reading-level public statements, and newsmagazine programs.
International investment disputes, under the ascendant liberalized international trade regime marked by international trade organizations, an increase in (or simply increased attention to) foreign direct investment activities and the proliferation of multilateral and bilateral investment treaties, are typically resolved through binding commercial arbitration between states and states, or multinational business enterprises and states, by tribunals selected by the parties, convened, according to the rules of a specified convention, to implement terms of a particular regional, multilateral or bilateral investment treaty with respect to a particular investment.
See? Within that context,
The advent of investment treaty arbitration stands out, not as the vanguard of a broad movement to protect individuals in international law, but as an anomalous and exceptionally potent system that protects one class of individuals by constraining the governments that continue to represent everyone else.is a pretty good soundbyte (from Gus Van Harten's 2007 Investment Treaty Arbitration and Public Law), though maybe still too long.
I am not an authority, but a dabbler, having had occasion some years ago to research and write about bilateral investment treaty minutia, which did require broad reading to spin up, discern authorities and standards, learn the context, and focus on the question at hand. I am probably more qualified to address the subject than I was to evaluate the warlike character of Stuxnet via the Schmitt Analysis, but only marginally so.
It just so happens that all of that reading concerned what we've been discussing generally as "Investor State Dispute Settlement," specifically standards employed by tribunals convened to arbitrate international investment disputes according to rules of the International Centre for Settlement of Investment Disputes, the United Nations Commission on International Trade Law, or similar conventions.
Today, DemocracyNow! aired Julian Assange and Amy Goodman -- both of whose voices I value -- talking about how the "secretive deal isn't about trade, but corporate control," a thesis with which I more or less agree. As with many things, Assange is worth hearing on this topic (him and Sen. Warren) for the deep engagement and broad contextual awareness his assertions clearly evince.
But he presented a scenario in which environmental and health regulation law and municipal development may be chilled by the prospect of a foreign investor suing the government for the loss of expected future profits: "This is not an actual loss that has been sustained, where there's desire to be compensated; this is a claim about the future."
Such suits are a real threat; the chilling effect is already manifest.
But this scenario is incomplete, and the quoted passage not entirely accurate, for, a foreign investor who has built a hospital already has realized a loss--was wooed and courted by the municipality in which the hospital was built specifically to make that investment in that municipality with both parties' mutual agreement that operation over a contemplated period of time would recover some reasonable return on the initial investment. The foreign investor has realized a loss that the agreement with the municipality specifically contemplates it recovering.
This is how natural resources of the commonweal are privitized. Also, it leads nicely to the omitted issue of the legitimate expectations of the investing party. [excerpt from 2009 memorandum follows]
As arbitral case law develops . . . some principles of construction and scrutiny are emerging to give contour to an investor’s legitimate expectations and a host state’s due process obligations. (See.)
As the tribunal in Tecnicas Medioambientales Tecmed, S.A. v. United Mexican States observed:
The foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations. . . The foreign investor also expects the host State to act consistently, i.e., without arbitrarily revoking any preexisting decisions or permits issued by the State that were relied upon by the investor. . . . The investor also expects the State to use the legal instruments that govern the actions of the investor or the investment in conformity with the function usually assigned to such instruments, and not to deprive the investor of its investment without the required compensation.On the other hand, “in order for them to be protected," a foreign investor’s expectations "must rise to the level of legitimacy in light of the circumstances.” For example, the political environment in the host State will be significant in determining the legitimate expectations of the investor: In the case of Lithuania’s transition from a Soviet State to a member of the European Union, “no expectation that the laws would remain unchanged was legitimate.”
[(not certain I'm happy merely replacing bluebook citations with suggestive links) end excerpt]
I really just wanted to add the fact of "legitimate expectations" to Assange's example. It doesn't add a lot, but, as one rich detail, stands for all the technicality and nuance omitted from every aspect of each clause of the secret provisions of the secret draft treaty that is described and discussed in our public discourse.
In actual fact, the municipality that invited the foreign investor to build the hospital simply would not build another hospital nearby; this, more than the scope of the potential award (which - don't misunderstand - might well be enormous), is the essence of the chilling effect. Also wanted to offer the prospect of the greater breadth and depth of issues implicated by the proposed treaty, and the general trend in which it is merely the most recent example. All the rest is establishing shot, background and tangent.
In my own view, the TPP is another instance in the continuing trend even further empowering transnational commercial entities over people, just like van Harten said, except I am also not certain that governments--at least my own state's government--actually represent the people and myself.
Beyond the dire promise of that trajectory, what is offensive about the TPP is the secrecy with which it is being drafted, and the essential vapidity of the public discourse.
It is worth noting that provisions of the published draft chapters of the secret treaty that I've read appeared to be standard, potentially even more protective of the sensitivity of legislators for "environmental, health, or other regulatory objectives" than those of many other investment treaties. Fairly standard . . . in context.
Separately, Dear Reader, I have taken the twitter; I tweet. It's exhausting for one already disinclined to chase after the topics of the daily news cycle. But that's where I've been being a gadfly, rather than a long-winded one over here, and where this year's flower pictures have been going. Will try to get some of them up here, too, before long.