Why the Tribunals in the TPP are so bad and how we know that.

WHY THEY'RE BAD FOR EVERYONE BUT CORPORATIONS AND INVESTORS

We know a great deal about how damaging these tribunals are from NAFTA and other so-called trade agreements (treaties). What we know is that the tribunal system is heavily stacked toward corporations and against the defendants in the cases that have been adjudicated.

Last year parts of the investment chapter of the TPP were leaked and we found out that U.S. negotiators have argued for, and succeeded (at least preliminarily) at strengthening the hand of corporations within the tribunal system. In part, this has been done by expanding the role of tribunals.

As bad as tribunals are the U.S., they're far worse for poor nations, which can be effectively bankrupted by tribunal findings. That's a huge "incentive" to meekly go along with whatever schemes that corporations may have. For instance, water rights, mining pollution, etc.

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Countries would be obliged to conform all their domestic laws and regulations to the TPP’s rules—in effect, a corporate coup d’état. The proposed pact would limit even how governments can spend their tax dollars. Buy America and other Buy Local procurement preferences that invest in the US economy would be banned, and “sweat-free,” human rights or environmental conditions on government contracts could be challenged. If the TPP comes to fruition, its retrograde rules could be altered only if all countries agreed, regardless of domestic election outcomes or changes in public opinion. And unlike much domestic legislation, the TPP would have no expiration date.

Failure to conform domestic laws to the rules would subject countries to lawsuits before TPP tribunals empowered to authorize trade sanctions against member countries. The leaked investment chapter also shows that the TPP would expand the parallel legal system included in NAFTA. Called Investor-State Dispute Resolution, it empowers corporations to sue governments—outside their domestic court systems—over any action the corporations believe undermines their expected future profits or rights under the pact. Three-person international tribunals of attorneys from the private sector would hear these cases. The lawyers rotate between serving as “judges”—empowered to order governments to pay corporations unlimited amounts in fines—and representing the corporations that use this system to raid government treasuries. The NAFTA version of this scheme has forced governments to pay more than $350 million to corporations after suits against toxic bans, land-use policies, forestry rules and more.

http://www.thenation.com/article/168627/nafta-steroids#

HOW THE TRIBUNALS FUNCTION:

They're formally known as International Arbitration Tribunals. When a corporation has a grievance against the laws of a nation or state, be it environmental, health or many others, under investor privileges and rights, they can bring this grievance to a tribunal. Historically, as noted, tribunals heavily favor the investor/corporation.

Who sits on the NAFTA tribunals, empowered by Chapter 11? Well, we don't really know. It's a secretive process. That's been known for a long time. We know each tribunal is comprised of 5 lawyers from various countries. How do they get selected?

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Settlement of Disputes between a Party and an Investor of Another Party

Chapter 11

Chapter 11 establishes a mechanism for the settlement of investment disputes that assures both equal treatment among investors of the Parties to the Agreement in accordance with the principle of international reciprocity and due process before an impartial tribunal. A NAFTA investor who alleges that a host government has breached its investment obligations under Chapter 11 may, at its option, have recourse to one of the following arbitral mechanisms:

the World Bank's International Centre for the Settlement of Investment Disputes (ICSID);

ICSID's Additional Facility Rules; and

the rules of the United Nations Commission for International Trade Law (UNCITRAL Rules).

Alternatively, the investor may choose the remedies available in the host country's domestic courts. An important feature of the Chapter 11 arbitral provisions is the enforceability in domestic courts of final awards by arbitration tribunals.

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http://www.nafta-sec-alena.org/en/view.aspx?conID=615
https://en.wikipedia.org/wiki/Investor-state_dispute_settlement
https://en.wikipedia.org/wiki/North_American_Free_Trade_Agreement#Chapter_11

http://www.nytimes.com/2001/03/11/business/nafta-s-powerful-little-secret-obscure-tribunals-settle-disputes-but-go-too-far.html?pagewanted=all&src=pm

http://www.nytimes.com/2004/04/18/us/review-of-us-rulings-by-nafta-tribunals-stirs-worries.html

(the two NYT articles are old but really good)

I hope this is helpful in understanding why the tribunal system sucks.

in goddamned opposition to the TPP,

cali