Another Reason to Hate TPP

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Like the rest of the TPP, we only know what has been leaked. Based on that, it seems the negotiators are poised to give private corporations new tools to undermine national sovereignty and democratic processes. Specifically, TPP would give multinational companies the power to sue countries over laws that that might diminish the value of their company or cut into their expected future profits.

The provision that gives them this power is called “investor-state dispute settlement” (or ISDS for short). The policy was originally intended to ensure that investments in developing countries were not illegally expropriated by “rogue” governments, thereby encouraging foreign investment. But what began as a remedy to a specific problem has since been co-opted to serve very different purposes. Under investor-state, if a regulation gets in the way of a foreign investor’s ability to profit from its investment, the investor can sue a country for monetary damages based on both alleged lost profits and “expected future profits.” There are no monetary limits to the potential award.

Apparently a country’s own courts can’t be trusted to administer this kind of lawsuit, so investor-state also requires the creation of a new court. It would be comprised of three private-sector attorneys who take turns being judge and/or corporate advocate.

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The supposed “cause” of these lost “investments” can include environmental standards, labor standards, and yes, even intellectual property rules. So far, countries have been forced to shell out almost half a billion dollars thanks to similar provisions in other trade agreements. The cases have mostly dealt with environmental protection regulations (challenged by oil companies), or pharmaceutical companies (complaining about regulations invalidating their medicine patents). Ecuador was ordered to pay 2.3 billion dollars in damages and fees to Occidental Petroleum last year, in a dispute over oil exploration. Eli Lily and Company, a pharmaceutical giant based in the U.S., filed a $500 million lawsuit against Canada last month under a similar investor-state provision contained within the North American Free Trade Agreement (NAFTA).

But the disputes won’t stop there. Let's say a country adopts a new flexible copyright law. For instance, one that gives users a blanket right to remix songs or videos for noncommercial purpose and post them online, or one that ensures greater user protections for everyone including educational institutions, libraries, or people with visual or learning disabilities. Companies could bring an investor-state case, alleging that the policy undermines their copyright protections, and therefore, their profits. Or, more likely, it could use the threat of such a lawsuit to stop that law from getting passed in the first place. Indeed, given the perverse nature of investor-state powers, even if all the other harmful provisions are taken out of the TPP, corporations could still have the ability to attack and potentially unravel virtually any pro-user digital regulation.

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https://www.eff.org/deeplinks/2013/10/another-reason-hate-tpp-it-gives-big-content-new-tools-undermine-sane-digital