There are few prospects so chilling. The developing world: bought and sold by foreign nationals. It’s a nightmarish cocktail of cheap labor, litigious strong-arming, and American deregulation, served in a garish golden chalice and paired with the corpse of the American factory worker. This is the new era of private expansionism. This is the TPP.
The Shadowy Courts of Corporate TyrannyEven as Asia-Pacific countries join the Trans-Pacific Partnership, backlash to the agreement’s language is growing in Democratic circles. Outrage reached fever-pitch when the roguish Julian Assange exposed Washington’s closely-guarded secret: the TPP not only favors business, it gives private investors an unprecedented amount of power in foreign countries.
Of particular concern are so-called investor-state dispute settlements, which we’ll abbreviate to ISDS. The Conversation defines the concept thus:
“This mechanism allows foreign investors to sue governments over discriminatory and abusive practices, such as unreasonable government seizure of assets.”
Instead of these lawsuits going before a national court, they’re decided by external arbitration panels. Prominent critics of the TPP have said these shadow-courts favor business interest and will give private investors unprecedented power in shaping a country’s legislative landscape.
As Senator Elizabeth Warren puts it, the shadow-courts give multinational corporations “the right to challenge laws they don’t like – not in court, but in front of industry-friendly arbitration panels that sit outside any court system.”
The Conversation continues:
“To make things worse, ISDS allows these corporations to redo their legal matches in more friendly turfs. A case in point is Eli Lilly’s US$500 million complaint against Canada, which was filed after Canadian courts invalidated two of its patents.”
ISDS provisions also allow foreign investors to sue the United States Government.
More Criticism of ISDSIn April of 2015, Lori Wallach, director of the Public Citizen’s Global Trade Watch, offered this criticism of the TPP’s ISDS provisions:
"We consider it inappropriate to elevate an individual investor or company to equal status with a nation state to privately enforce a public treaty between two sovereign countries", … "[ISDS] gives extraordinary new privileges and powers and rights to just one interest. Foreign investors are privileged vis-a-vis domestic companies, vis-a-vis the government of a country, [and] vis-a-vis other private sector interests", "... the basic reality of ISDS: it provides foreign investors alone access to non-U.S. courts to pursue claims against the U.S. government on the basis of broader substantive rights than U.S. firms are afforded under U.S. law".[102]
Last year, leading economists Adam S. Hersh and Joseph Stiglitz wrote:
"To be sure, investors — wherever they call home — deserve protection from expropriation or discriminatory regulations. But ISDS goes much further: The obligation to compensate investors for losses of expected profits can and has been applied even where rules are nondiscriminatory and profits are made from causing public harm. ... Imagine what would have happened if these provisions had been in place when the lethal effects of asbestos were discovered. Rather than shutting down manufacturers and forcing them to compensate those who had been harmed, under ISDS, governments would have had to pay the manufacturers not to kill their citizens. Taxpayers would have been hit twice — first to pay for the health damage caused by asbestos, and then to compensate manufacturers for their lost profits when the government stepped in to regulate a dangerous product.”
Exporting the American Dream of the 1990sAny Obama-spearheaded project that hasn’t faced relentless partisan obstructionism should raise eyebrows. Our bought-and-paid-for representatives hastily pushed the TPP through the House and Senate, careful not to rock the boat—sure to resume their obstructionist duties soon afterward.
They weren’t counting on the increasingly vocal progressive movement to catch wind of the agreement. Obama wasn’t counting on dissension within his own party. The American people weren’t counting on a liberal Democrat drafting international legislation that’d make Karl Rove feel all warm inside. But this is the still-Clintonian Democratic Party of 2016. The working party has abandoned the working person to chase the dreams of yore, to resurrect the deregulated optimism of the 1990s, to define liberalism by social issues and bow to the whims of their donors. This socially liberal, business-friendly policy kills American jobs and promotes austerity abroad, and we can’t blame all of that on eight years of Bush.