Planet Not For Sale
USDA Stands Firm on Consumer Meat Labels, but Will the WTO Continue its Anti-Consumer Legacy and Authorize Trade Sanctions?
Today, on the deadline for the United States to comply with the World Trade Organization’s (WTO) 2012 ruling against the popular U.S. country-of-origin labeling (COOL) meat labeling program, the U.S. Department of Agriculture (USDA) announced it will strengthen rather than eliminate or weaken the consumer label. The welcome decision raises the critical question: will the WTO accept the change supported by 87 percent of the U.S. public or continue its legacy of undermining consumer safeguards?
Mexico and Canada, the countries that won a final June 2012 WTO ruling against COOL, stated that they opposed the proposed U.S. resolution to the case released in March, which closely aligns with today’s final rule, and would challenge it as a WTO violation. Under WTO rules, if the countries contest the new U.S. regulations, the WTO will decide whether the new U.S. policy complies with WTO requirements, or whether Mexico and Canada may impose trade sanctions against the United States.
Consumer groups have applauded the USDA approach, which stands in stark contrast to past U.S. responses to WTO rulings, which have involved weakening public interest safeguards ruled against by the WTO. The new USDA rule eliminates the WTO violations identified in this case and complies with the WTO ruling, but does so by strengthening the consumer labels.
The WTO ruling against the COOL meat labels, which inform U.S. consumers where their meat comes from and assist regulators in tracking food-borne illness outbreaks, followed WTO rulings against two other popular U.S. consumer policies. In May 2012 the WTO ruled against voluntary “dolphin-safe” tuna labels that, by allowing consumers to choose to buy tuna caught without dolphin-killing fishing practices, have helped to dramatically reduce dolphin deaths. In April 2012, the WTO ruled against a U.S. ban on clove-, candy- and cola-flavored cigarettes, enacted to curb youth smoking.
For the COOL case, USDA found a way to rectify the specific WTO rule violations identified in the WTO’s final ruling by giving consumers even more information about the country of origin of the beef and pork they consume. The WTO ruling had identified ambiguities in the labels that limited consumer information as a reason why the policy violated WTO rules. In filing the case, Mexico and Canada had sought an elimination of mandatory U.S. country-of-origin labeling.
If the WTO accepts the strengthening of COOL as compliance with its final ruling, it will mark a stark departure from precedent. WTO lawyers are accustomed to seeing governments scuttle constituent interests and roll back domestic policies in an attempt to comply with WTO directives. If the WTO does not accept USDA’s new policy and instead authorizes trade sanctions against the United States, it will reinforce the anti-WTO public sentiment spurred by last year’s spate of anti-consumer rulings.
Mexico and Canada Openly Threaten Retaliation
The question of the WTO’s determination of U.S. compliance is relevant because Mexico and Canada may well challenge USDA’s final rule, shifting the decision back to a WTO panel. When USDA released its rule change proposal in March, Canada’s Agriculture Minister Gerry Ritz minced no words in stating: “Our Government is extremely disappointed with the proposed regulatory changes put forward by the United States today with respect to Country of Origin Labeling. We do not believe that the proposed changes will bring the United States into compliance with its WTO obligations.” A letter from the Mexican Embassy identically stated that the regulatory change “will not bring the United States into compliance with its WTO obligations.”
Both Canada and Mexico have already threatened retaliatory action, which the WTO will authorize if it deems that USDA’s new rule to provide consumers with further information about their food does not satisfy WTO rules. The list of punishments that the WTO could impose on the United States for maintenance of country-of-origin meat labels include U.S. taxpayer compensation to Mexico and Canada, or authorization of trade sanctions by those countries against the United States. Mexico has already voiced its support for the latter, stating in March that if USDA would not abandon its proposed strengthening of COOL, “Mexico would be forced to pursue the available mechanisms for withdrawing trade benefits from the United States.”
The open threats of retaliation from Mexico and Canada come while both countries are engaged in negotiations with the United States on the Trans-Pacific Partnership (TPP), the sweeping “free trade” agreement (FTA) that the Obama administration is currently negotiating with 10 Pacific Rim countries. The hard line that Mexico and Canada appear ready to take against the United States on COOL will at least significantly complicate the TPP negotiations. Most observers, including TPP proponents, have already given up hope that the negotiating governments will meet their goal of concluding negotiations by this October’s Asia-Pacific Economic Cooperation summit. Fresh tension from the COOL dispute will only further encumber TPP negotiations.
Background on COOL, the WTO Dispute and the USDA Rule
After 50 years of U.S. government experimentation with voluntary country-of-origin meat labeling and efforts by U.S. consumer groups to institute a mandatory program, Congress enacted mandatory labeling for meat in the 2008 farm bill. The policy requires American retailers to label certain foods with the country (or countries) in which animals were born, raised and slaughtered. Polls indicate that 90 percent of the U.S. public approves of COOL.
In their successful WTO challenge, Mexico and Canada argued that the mandatory program violated the limits that the WTO sets on what sorts of product-related “technical regulations” WTO countries are permitted to apply. Canada and Mexico suggested that the United States should eliminate mandatory labeling and return to voluntary COOL, or to standards suggested by the Codex Alimentarius, which is an international food standards body at which numerous international food firms play a central role. Neither option would provide U.S. consumers with the same level of information as the current U.S. labels.
Instead of pursuing such a watering down of the popular program, USDA proposed a COOL rule change in March 2013 that would strengthen the labeling regime to address the problems identified in the WTO’s ruling. Today’s final rule from USDA maintains that approach. The WTO’s Appellate Body ruled that the program’s requirement that meat producers gather a greater amount of information about meat origins than is ultimately conveyed to consumers downstream violated WTO requirements. To address this concern, USDA’s new rule will offer consumers more precise labels that specify the country in which each step in the meat production process occurred. The change will better fulfill COOL’s policy objective and consumers’ rising demand for greater transparency regarding the production of their food, while also satisfying the issues raised in the WTO’s final ruling.
As the 17th round of the Trans-Pacific Partnership (TPP) negotiations continue in Lima this week, objections to the proposed sweeping NAFTA-style deal (with 10 Pacific Rim countries) have been heard from a diverse spectrum of voices, including experts, activists, and even a Peruvian Member of Congress.
Last Thursday, a public forum was held in Lima to discuss concerns about the TPP. Advocates and experts, including Global Trade Watch's own Melinda St. Louis, discussed topics ranging from intellectual property and internet freedom, to labor standards and the investment chapter.
One of the most notable speakers was Pablo Fabian Mosau, a representative from La Oroya, the town that has been severely polluted by a metal smelter owned by U.S.-based Renco/Doe Run (considered one of the ten most polluted sites in the world). Renco/Doe Run has launched an $800 million investor-state claim against Peru using the investment privileges enshrined in the U.S.-Peru FTA –- privileges that the TPP aims to expand. Mosau gave an emotional account of the dire situation in his community, where 99.7% of the children suffer from lead contamination, and flowers and trees have died as a result of the pollution.
The audience also heard from Verónika Mendoza, a Peruvian Member of Congress, who expressed concern about a negotiation process that locks out citizen and government participation. She cited investor-state cases such as Renco/Doe Run and Eli Lilly as indicators that Peru needs to take a strong position to protect environmental health in the face of proposed investment privileges and protect access to medicines in the face of proposed monopoly patent expansions.
On Friday, activists took to the streets to protest the TPP negotiations. Protestors wore masks to symbolize the danger the TPP poses to access to medicines and health and chanted “No es negociable!” (Not negotiable!). The protest was covered by several prominent Latin American news outlets, including CNN, La Pr1mera, the Associated Press, and many others. La Mula posted a video of the protest.
After the protest, advocates organizing around the TPP negotiations in Lima hosted a webinar to update activists from around the globe and answer questions about the TPP. Click here to check out a video of the webinar if you missed it.
Though the negotiating round in Lima round is coming to an end, many Peruvians -- including the citizens of La Oroya -- still have to live with the damaging effects of the investor privileges embodied in "trade" pacts. Australia has already refused to sign on to such privileges in the TPP. Hopefully Peru will follow suit. In the meantime, it is crucial that civil society around the globe carry Peruvians' message to their own governments: our right to health, a clean environment, fair labor standards, and internet freedom are not negotiable.
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Civil society from around the globe are in Lima, Peru for the 17th round of Trans-Pacific Partnership (TPP) negotiations to tell negotiators that a trade agreement that prioritizes the rights of corporations above the well-being of citizens is not acceptable. For the latest news, click here at 5pm today (May 17) to participate in a webinar hosted by activists in Lima.
Several Peruvian organizations have joined together to launch the No Negociable! (Not Negotiable!) campaign to highlight the grave threats that the TPP poses to Internet freedom, the environment, workers' rights, and public health.
Events kicked off on Wednesday when Peruvian activists took part in a press conference to express their concerns about the TPP:
+Julia Cesar Cruz (Red Peruana de Pacientes y Usarios),
representing Peruvians living with HIV, tuberculosis, and cancer, said that
patients of these diseases and others are terrified about how the TPP proposals
could affect the lives of those living with chronic illness. She called on
President Humala to follow through on his campaign promise to guarantee access
to medicines for Peru’s poorest.
+Jose de Echave (CooperAcción) expressed concerns about how TPP’s investment chapter would allow crucial policies to protect indigenous communities and the environment to be challenged.
+Juan Jose Gorritti (CGTP) rejected a trade agreement model that does not respect workers' rights and encourages a race to the bottom.
+Crisólogo Cáceres (ASPEC) expressed concerns about how the TPP would impact consumer rights and privilege corporations over consumers.
+Alejandra Alayza (RedGE) spoke about a Peruvian petition that will be sent to President Humala. (Spanish speakers can find a video of Alayza speaking at the press conference here).
Several other civil society events have been planned during the round, including an all-day public forum, a protest, and the delivery of signatures to President Humala.
Today: You can also learn more about what is happening on the ground by connecting to a webinar hosted by activists in Lima. To take part in the interactive webinar, join this link TODAY, Friday, May 17th, at 5 PM EST.
First House Hearing Today on the Trans-Atlantic Free Trade Agreement
Submission of more than 10,000 public comments on the Trans-Atlantic Free Trade Agreement (TAFTA) to the U.S. Trade Representative’s (USTR) docket last week punctured the notion that the pact will avoid the controversies that have dogged past trade deals. The cause of controversy is that negotiations will focus primarily on “behind-the-border” policies and “regulatory and other non-tariff barriers,” given tariffs between the United States and EU are already quite low.
Critical comments were submitted by a panoply of consumer, farmer, labor, environmental, health and tech groups concerned about the negotiations being used to roll back critical public interest safeguards. In addition, nearly 10,000 comments were generated in 32 hours after an email sent by Rep. Alan Grayson (D-Fla.) alerted the public that the deal is slated to include controversial “investor-state” provisions. The investor-state proposal would empower foreign corporations to skirt U.S. legal systems and directly challenge domestic health, environmental and other public interest policies before extrajudicial foreign tribunals authorized to order taxpayer compensation. The investor-state system has generated controversy across the political spectrum. Conservatives have objected to the notion that the United States would be subjected to the jurisdiction of United Nations and World Bank tribunals. Progressives have viewed the system as a backdoor means to attack domestic health and safety policies.
To date, most U.S. agreements including investor-state enforcement have been with developing countries. TAFTA would break that mold, empowering corporations to circumvent the U.S. and EU court systems, not typically criticized for being unfriendly to investors, to attack U.S. and EU policies in extrajudicial tribunals. As a result, foreign firms operating in the United States would enjoy greater rights than those provided to domestic firms. Moreover, because many European firms are established here, U.S. taxpayers would face unprecedented liability from investor-state suits, in contrast to past U.S. pacts with developing countries whose firms have relatively few investments in the United States.
In contrast to the bulk of public comments on TAFTA, the four witnesses presenting to the House Ways and Means Trade Subcommittee in Congress’ first hearing today on proposed TAFTA negotiations all represent business interests. This includes two witnesses representing the trans-Atlantic coalition of large corporations that has pushed for TAFTA negotiations for years. The business interests view TAFTA negotiations as a means to eliminate an array of consumer, environmental and other public interest safeguards that they have identified as “trade irritants.” The corporate agenda is closely mirrored by the official framework for talks announced in February in a report of a high-level U.S.-EU government commission, advised by many of the same corporate interests.
Despite growing public scrutiny of the TAFTA proposal, President Obama met this week with British Prime Minister David Cameron, to discuss how to rush the completion of this sweeping “trade” agreement by the end of next year. Obama and Cameron announced plans to launch formal talks during the G8 Summit in Northern Ireland next month.
What Generated 10,000 Comments in 32 Hours: Proposed Inclusion of the “Investor-State” System that Would Empower Foreign Corporations to Challenge the U.S. Government in Extrajudicial Tribunals, Undermine Domestic Public Interest Policies, and Cost U.S. Taxpayers Millions
U.S. and EU officials have confirmed that they plan to include in TAFTA a mechanism included in prior U.S. “free trade” agreements (FTAs) called “investor-state dispute resolution.” This mechanism, which is facing growing controversy in many countries, elevates foreign corporations to the level of sovereign governments, empowering them to privately enforce the terms of a public treaty. This is done with trade pact terms that authorize individual foreign firms and investors to skirt domestic laws and courts and directly challenge signatory countries’ public interest policies before foreign tribunals, demanding taxpayer compensation for claims that those policies undermined investors’ expectations. The cases are decided by panels comprised of three private sector attorneys, unaccountable to any electorate, who rotate between serving as "judges" and bringing cases against governments for corporations.
Foreign investors have used the broad “rights” granted by this system, which are superior to those afforded to domestic firms, to demand taxpayer compensation for environmental, energy, land-use, toxics, water, mining, labor, and other non-trade domestic policies that they allege undermine their “expected future profits.” A recent Bloomberg exposé “Coup d’Etat to Trade Seen in Billionaire Toxic Lead Fight” details one such case under the U.S.-Peru FTA. When an investor-state tribunal rules in favor of the foreign investor, the government must hand the corporation an amount of taxpayer money decided by the tribunal. There is no appeal mechanism. Even when governments win, they often must pay for the tribunal’s costs and legal fees, which average $8 million per case, wasting scarce resources to defend public interest policies against corporate challenges.
More than $380 million in taxpayer compensation has already been paid out to foreign corporations in a series of investor-state cases brought under the North American Free Trade Agreement (NAFTA) and related U.S. FTAs. Of the over $14 billion in the 18 pending claims under NAFTA-style deals, all relate to environmental, energy, land use, public health and transportation policies – not traditional trade issues. In November 2012, U.S. pharmaceutical corporation Eli Lilly used the investor-state provisions of NAFTA to attack Canada’s entire legal basis for granting patents, demanding $100 million in compensation.
The investor-state system was initially established to provide a venue for foreign investors to obtain compensation when a government expropriated an investment in a country that did not have a well-functioning domestic court system. In the past, it was included in pacts between a developed and developing country with the developed country firms launching investor-state cases against developing country governments. The United States was not exposed to significant liability under this regime because the only agreement that included a major capital-exporting country was NAFTA. Ninety percent of investor-state challenges against the United States under NAFTA have come from Canadian firms. Inclusion of this regime in an FTA with the EU would expose U.S. taxpayers to enormous new liabilities.
The global World Trade Organization rules do not include private enforcement. Thus, EU corporations currently do not enjoy greater legal privileges than U.S. firms and cannot directly challenge the U.S. government in foreign tribunals over U.S. domestic policies. If TAFTA is enacted with investor-state provisions, EU corporations would be newly empowered to demand U.S. taxpayer compensation for being required to comply with the same policies enacted by Congress and state legislatures that apply to domestic firms. U.S. corporations would gain the same privileges in EU countries.
Growing Public Outcry over TAFTA
When Rep. Grayson alerted citizens of TAFTA’s proposed inclusion of the investor-state regime, nearly 10,000 individuals submitted comments within 32 hours to denounce the extreme provision as an affront to democracy and the public interest. In addition, more than 370 groups and individuals filed concerns and remarks on the deal in response to USTR’s invitation for public input. Below are links to comments submitted by the diverse array of organizations concerned about TAFTA’s threats to food safety, climate change policy, family farmers, Internet freedom, workers’ rights, access to medicines, financial regulation and other critical public interest objectives.
Public Citizen: http://www.citizen.org/documents/TAFTA-comments.pdf
National Farmers Union: http://nfu.org/images/stories/policy/05%2010%2013%20Transatlantic%20Trade%20-%20USTR.PDF
Electronic Frontier Foundation: https://www.eff.org/deeplinks/2013/05/dear-us-trade-rep-dont-shut-the-public-out-from-us-eu-trade-negotiations
Coalition for Sensible Safeguards:
Consumer Federation of America: http://www.consumerfed.org/pdfs/TTIP-Comments-Consumer-Federation-of-America.pdf
Library Copyright Alliance: http://www.librarycopyrightalliance.org/bm~doc/lca-ttip-comments-final-10may13.pdf
U.S. Public Interest Research Group: http://www.regulations.gov/contentStreamer?objectId=09000064812dac68&disposition=attachment&contentType=pdf
International Association of Machinists and Aerospace Workers: http://www.regulations.gov/contentStreamer?objectId=09000064812bff6b&disposition=attachment&contentType=pdf
Public Knowledge: http://publicknowledge.org/files/PK%20TTIP%20comments.pdf
Communications Workers of America: http://www.regulations.gov/contentStreamer?objectId=09000064812d7715&disposition=attachment&contentType=pdf
Center for Democracy and Technology: https://www.cdt.org/files/pdfs/CDT-TTIP-Comments-5-10-13.pdf
Center for Digital Democracy: http://www.centerfordigitaldemocracy.org/sites/default/files/CDDUSTRMay102013.pdf
Maine Citizen Trade Policy Commission: http://www.regulations.gov/contentStreamer?objectId=09000064812dc78a&disposition=attachment&contentType=pdf
Knowledge Ecology International: http://keionline.org/sites/default/files/KEIcomments_TTIP_9May2013.pdf
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Today, Bloomberg published an in-depth piece highlighting the secretive public policy “coup d’etat” that allows corporations to use trade agreements to attack domestic health, environmental, and other public interest policies they feel undermine their ability to make a profit. The use of this "investor-state" system, which was once considered a last resort for companies that had been wronged by countries with weak legal infrastructure, has exploded in recent years as a first-resort way to circumvent strong domestic legal systems. In 2012, corporations used the system to launch a record-breaking 62 new cases against sovereign governments.
Outlined in the article are some of the most egregious cases, including that of Doe-Run/Renco, the company that, after refusing to fulfill its contractual obligations to clean up the pollution of a lead smelter that caused lead poisoning in 99.7% of the community’s children, is now suing Peru under the Peru-U.S. "free trade" agreement (FTA) for $800 million. The story also mentions the record-breaking $1.8 billion judgment that Occidental Petroleum Corp. won against Ecuador last year -- a staggering penalty imposed on Ecuador's taxpayers that amounts to 16% of the country’s external debt.
As the number of investor-state cases balloons, more and more countries are expressing concerns and opting out of investor-state provisions. Despite U.S. pressure, Australia has refused to be a party to the investor-state provisions in the Trans-Pacific Partnership (TPP). In April, 12 Latin American governments met at a summit focused on investor-state concerns, resulting in a declaration by seven of the governments to coordinate efforts to replace the investor-state regime. Bolivia and Venezuela have already pulled out of the International Centre for Settlement of Investment Disputes (ICSID), and in March, Ecuador moved to annul its Bilateral Investment Treaty (BIT) with the US. Other countries such as Brazil, India, and South Africa have either outright rejected the investor-state regime or have made strides to abolish investor-state clauses. Hopefully, these steps forward, combined with increased media attention, will motivate more countries to discard harmful investment provisions that threaten crucial environmental, health, and regulatory policies aimed at improving the lives of the majority.
As Korean President Addresses Congress Today, First Year of Korea Free Trade Agreement Data Shows U.S. Exports Down, Trade Deficit with Korea Up
After First Year of U.S.-Korea FTA, U.S. Exports to Korea Down 10 Percent, Imports from Korea Up and Deficit With Korea Swells 37 Percent, Contradicting Obama Promises of U.S. Export and Job Growth
Just-released government trade data, covering the first year of implementation of the U.S.-Korea Free Trade Agreement (FTA), shows a remarkable decline in U.S. exports to Korea and a rise in imports from Korea, provoking a dramatic trade deficit increase that defies the Obama administration’s promises that the pact would expand U.S. exports and create U.S. jobs, Public Citizen said today.
The coincidence of the dismal trade data coming out just before the Korean president’s Wednesday address to a joint session of Congress can only heighten attention to the gap between the administration’s promises and the outcomes of its trade agreements.
“The Korea pact’s damaging outcomes being the opposite of the administration’s promises will certainly complicate the administration’s current efforts to use the same claims about export expansion to persuade Congress to delegate away its constitutional trade authority or to build support for the administration’s next trade deal, a massive 11-nation Trans-Pacific Partnership (TPP) based on the same model,” said Lori Wallach, director of Public Citizen’s Global Trade Watch.
U.S. export growth to countries with NAFTA-style pacts like the U.S.-Korea FTA has been particularly lackluster; growth of U.S. exports to countries that are not FTA partners has exceeded U.S. export growth to countries that are FTA partners by 38 percent over the past decade.
In contrast to the Obama administration’s promise that the U.S.-Korea FTA would mean “more exports, more jobs,” U.S. goods exports to Korea have dropped 10 percent (a $4.2 billion decrease) under the Korea FTA’s first year, in comparison to the year before FTA implementation. U.S. imports from Korea have climbed 2 percent (a $1.3 billion increase). The U.S. trade deficit with Korea has swelled 37 percent (a $5.5 billion increase). The ballooning trade deficit indicates the loss of tens of thousands of U.S. jobs.
“Most Americans will not be shocked that another trade agreement has increased our trade deficit, because they know that these NAFTA-style deals are losers, but anger toward the politicians who keep supporting these deals is soaring,” said Wallach. “The question is why any member of Congress would buy the same tired promises that once again have proven false and cede to the administration’s demands that Congress give away its constitutional authority over trade to allow the administration to Fast Track into effect yet another deal, TPP, that will increase our trade deficit and cost U.S. jobs.”
The decline in U.S. exports under the Korea FTA contributed to an overall disappointing U.S. export performance in 2012, placing the United States far behind Obama’s stated goal to double U.S. exports by the end of 2014. At the sluggish 2012 export growth rate of 2 percent, the United States will not achieve the president’s goal until 2032, 18 years behind schedule.
“The sorry Korea FTA numbers beg the question: How can the administration call for a rebirth of American manufacturing and job growth while pushing the TPP, a sweeping deal that would expand the failed Korea FTA model to low-wage countries like Vietnam, ban Buy American provisions and offshore tens of thousands more U.S. jobs,” said Wallach.
Many of the sectors that the Obama administration promised would be the biggest beneficiaries of the Korea FTA have actually been some of the deal’s largest losers:
- U.S. pork exports to Korea have declined 24 percent under the first year of the FTA relative to the year before FTA implementation.
- U.S. beef exports have fallen 8 percent.
- U.S. poultry exports have plunged 41 percent.
The U.S. deficit with Korea in autos and auto parts increased 16 percent in the first year of the FTA. U.S. auto imports from Korea have surged by more than $2.5 billion under the FTA’s first year. FTA proponents have shamelessly touted “gains” in U.S. auto exports without revealing that this increase totaled just $130 million, with fewer than 1,000 additional U.S. automobiles sold in Korea relative to the 1.3 million Korean cars sold here in 2012.
Read additional analysis of the government data on U.S. trade with Korea under the U.S.-Korea FTA.
Public Citizen and Sierra Club Denounce World Trade Organization Attack on Successful Clean Energy Program
In Final Appeals Ruling, WTO Orders Canada to Roll Back Green Jobs Program
A World Trade Organization (WTO) final ruling against Ontario’s successful renewable energy incentives program, which has reduced carbon emissions and created clean energy jobs, underscores the threat the WTO poses to a clean energy future, Public Citizen and Sierra Club said today.
In November 2012, the WTO ruled that Ontario’s incentives program for renewable energy companies at home – or “feed-in tariff” program – violates WTO rules that forbid treating local or domestic firms and products differently from foreign firms and products. On Monday, the WTO struck down Canada’s appeal of that initial ruling in a decision that went even further to condemn the green jobs program as a violation of WTO rules.
“By ordering the rollback of a successful program that is reducing carbon pollution and creating green jobs after recently sacking three popular U.S. consumer protection policies, the WTO is destroying whatever shred of legitimacy it still had after years of imposing its anti-consumer, anti-environment dictates,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “Just like the WTO rulings ordering the U.S. to gut popular laws on country-of-origin meat labels, dolphin-safe tuna labels and limits on candy-flavored cigarettes marketed to kids, this latest attack against an initiative promoting renewable energy, localization and green job creation is simply unacceptable.”
Ontario’s renewable energy incentives program was established under the Green Energy and Green Economy Act of 2009. It increases incentives to develop clean and safe renewable energy by guaranteeing that the provincial public electricity utility, Ontario Power Authority, will pay a preferential price for 20 years to companies for the wind, solar and other clean energies they produce. Although the program is new, it already has achieved significant success, including contracts for an estimated 4,600 megawatts worth of clean energy and the creation of more than 20,000 jobs in just two years.
“As people around the world grapple with consequences of the climate crisis, their governments should and must use every tool available to reduce dangerous carbon pollution and create new clean energy jobs,” said Ilana Solomon, Sierra Club trade representative. “To avoid climate chaos, the WTO needs to get out of the way of innovative and successful climate solutions and job creators.”
The Sierra Club and Public Citizen support calls of Canadian allies, including the Council of Canadians, to keep Ontario’s renewable energy incentives program in place.
Last week 12 Latin American governments gathered in Guayaquil, Ecuador to craft a common response to an increasingly common menace: costly "investor-state" suits in which foreign corporations are dragging sovereign governments to extrajudicial courts to demand taxpayer compensation for health, environmental, and other public interest policies.
Ecuador, the host of this "Ministerial Conference of Latin American States Affected by Transnational Interests," has taken a particularly hard battering from the investor-state system enshrined in NAFTA-style Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs). The country currently faces a ruling from one tribunal to hand $2.4 billion to Occidental Petroleum after Oxy broke Ecuador's hydrocarbons law, while confronting a ruling from another tribunal that the government should breach its own Constitution and block the enforcement of an $18 billion court ruling against Chevron for massive pollution of the Amazon. Many of the other countries present have also faced a taxing litany of investor-state cases in recent years: Mexico (e.g. losing $170 million in a NAFTA-created tribunal to the same U.S. agribusinesses that, under the same NAFTA, displaced over two million farmers), Argentina (e.g. losing a slew of cases to foreign financial firms for using financial regulations to mitigate the country's 2001 financial crisis), Guatemala (e.g. losing $13 million to a railroad company that failed to build a railroad because the tribunal thought that the government had failed to fulfill the company's expectations), etc.
These countries have indeed been "affected by transnational interests." And they are tired of it.
So they put together a conference, officiated by Ecuador's foreign minister Ricardo Patiño, to address the investor-state system that has empowered a multitude of foreign corporations to mount a skyrocketing number of challenges against the public policies of sovereign goernments. Several civil society organizations from around the world attended to deliver presentations on the dangers of the investor-state system. I was there on behalf of Public Citizen and summarized the exceptionally broad privileges that unaccountable tribunals have granted to foreign investors in this Wild West frontier of international law, and the equally broad array of public interest policies that have been directly attacked as a result. Cecilia Olivet of the Transnational Institute detailed the deep conflicts of interest among the private attorneys who alternate between acting as judges in investor-state tribunals and as prosecuting lawyers who bring the cases on behalf of corporations. Martin Khor of the South Centre explained that while attacks on public interest policies have grown under this investor-state system, foreign investment (the ostensible objective for such an extreme system) has not--study after study has shown no correlation between binding a country's policies to this anomalous regime and attracting foreign direct investment.
At the end of the day, seven of the governments present signed a declaration to coordinate efforts in seeking to replace the investor-state regime with an alternative investment framework that respects sovereignty, democracy, and public wellbeing. They announced the launch of an International Observatory, a intergovernmental commission based in Latin America to audit investor-state tribunals, draft alternative investment agreements, and collaborate in strategies for reform. The group will be headed by an executive committee that will help Latin American countries exchange information about emergent investor-state cases and collaborate in mounting defenses against such claims. Representatives from the remaining five governments participated as observers and are now taking the declaration back to their capitals to discuss joining the emerging Latin American coalition.
By launching this effort, these dozen Latin American countries are joining a mounting effort by governments to halt, renegotiate, or leave the now-notorious investor-state system. Australia has publicly refused to sign on to the proposed expansion of the extreme regime in the Trans-Pacific Partnership FTA, despite significant U.S. pressure to do so. India has moved to abolish investor-state dispute clauses in FTAs. South Africa is re-examining its policy on investor-state disputes and has refused to renew BITs with the EU. And now Ecuador's National Assembly is considering a bill to terminate its investor-state-embodying BIT with the United States. Last week's conference adds another dash of momentum to this growing global push to ditch this rather radical regime.
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Global Civil Society Expresses Rejection of the Report, “The Future of Trade: The Challenges of Convergence”
The following media release was issued by the global Our World is Not for Sale (OWINFS) network rejecting a panel report released yesterday at the World Trade Organization (WTO). Public Citizen's Global Trade Watch is a participating member of OWINFS.
April 24, 2013 -- Global Civil Society Expresses Rejection of the Report, “The Future of Trade: The Challenges of Convergence”
Contact: Deborah James +41 (0) 76 652 6813
Civil society experts from the global Our World Is Not for Sale (OWINFS) network expressed rejection of the panel report “The Future of Trade: The Challenges of Convergence,” released today at the World Trade Organization (WTO), both in terms of its content and process.
Last year, at the time of the launching of the panel, OWINFS sent a letter to Pascal Lamy objecting to the formation of the panel, in terms of its lack of diversity, such as its exclusion of LDCs, its inclusion of only one Latin American and one African, its exclusion of the United Nations Conference on Trade and Development (UNCTAD), and its paucity of participation by civil society beyond the private business sector.
Today, at the launching of the panel’s report, we reiterate our criticism that we “find the process of the composition of the panel to have been autocratic and not in keeping with the rhetoric of a member-driven organization.” It was clear that even despite the best efforts of representative organizations such as the International Trade Union Confederation (ITUC), which participated in the panel, to include issues such as “to have the dominant context of inequality and unemployment recognised and the trade regime located in the context of a failed model of globalization,” such concerns were not included in the final text.
Two representatives of the OWINFS network intervened in the public discussion of the report at the WTO. Deborah James told the audience that based on this lack of representation, “it is thus no surprise that even though the report alleges to be focused on not immediate issues but the future, the report them makes specific recommendation to accept Trade Facilitation – which is the current demand of developed countries – for the proposed Bali package!
“At the same time, the report does not call for approval of the LDC (Least Developed Country) package demanded by the LDCs. And it does not deal with emergence of the Food Crisis and need for more policy space for developing countries to feed their poor including increasing livelihood of their poor farmers, which we all know is the emphasis of the G33 proposal. These – along with a fundamental re-taking up of the Implementation agenda issues – are the first steps of the changes needed to be made towards the transformation of the global trading system, to address historical inequities and asymmetries between developed and developing countries, and between benefits for corporations, and the negative impacts on workers and farmers. And I am quite aghast that the report even goes so far as to endorse the long-term developed country proposals that were explicitly rejected by developing countries in Cancun, of course I’m talking about the Singapore issues of competition policy and investment.
“So this report does not have any legitimacy; because it does not reflect the membership of the WTO, and therefore, with all due respect to the hard work of the participants, it must be said that it has no role in the future of the negotiations. This is a point that has already been made by several members at the last General Council meeting. But I also fail to see any way that this report reflects any future pathway of using trade for development, which is not even appear to be its goal, but rather I’m afraid that we must conclude that it is more reflection of the Secretariat’s continued emphasis on helping developed countries achieve their negotiating goals of simply expanding liberalization for the benefit of their corporations, rather than addressing the serious challenges facing the multinational trading system in terms of fundamental transformation needed to achieve trade for the true benefit of development and job creation.
Another member of the OWINFS network, Sanya Reid Smith of the Third World Network, said:
“I would like to thank the panelists for their work. I’ve just been speed-reading, so I haven’t finished reading it thought yet. From what I’ve read so far: in addition to concerns raised by OWINFS, I would repeat that at the beginning, the report says that trade is a means, not and end. Presumably for developing countries, development is the end goal. So it is interesting then that the report is about convergence of trade regimes, not convergence of levels of development. Usually in development, we talk about developing countries reaching desired levels of development, ie a convergence of development levels. So report seems to be about a convergence of trade regimes regardless of the levels of development as fixed time specific goals based on actual levels of development. (And as have seen, because of the financial crisis or HIV/AIDS etc, countries can actually go backwards in objective development indicators like life expectancy). This is despite the fact that there is a commitment to Special and Differential Treatment (SDT) throughout the WTO's rules. I recognize that the comments of some panelists who said that they personally don't believe in convergence at any cost, but the report itself appears to recommend violating or amending current WTO rules on SDT including for LDC status which is set objectively by UN.
Also I am shocked to see that proposal by one developed WTO Member to
multilateralise the FTAs appears taken up as recommendation.
So as to future of this report, this panel was established by the Director General, Lamy, on his own responsibility. WTO Members did not choose panel members and did not set terms of reference or review the report before it came out, or agree to the text. So as raised by WTO Members in the past, the report does not seem to be grounds for basis for ministerial conference or any further work."
OWINFS is a global network of NGOs and social movements working for a sustainable, socially just, and democratic multilateral trading system. www.ourworldisnotforsale.org.
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Situación del capital accionario de Repsol en la
empresa YPF antes y después de la expropiación.Argentina ha perdido hasta el momento solo dos demandas en forma definitiva y que deben pagarse de acuerdo al reconocimiento que el Estado ha hecho de los laudos arbitrales. Son las demandas ganadas por las empresas estadounidenses Azurix y CMS por un monto total de 318.2 millones de dólares. El resto están tramitándose, muchas de ellas dentro de las últimas instancias. Al margen de ello, la demanda de Repsol es, por lejos, la más alta en comparación con otras, como ser la de Azurix (de 185 millones de dólares), la de Saur International (de 144 millones de dólares) o de EDF (por 200 millones de dólares), hasta el año pasado las demanda más grande presentada contra la Argentina. Esto significa que el reclamo de Repsol por la expropiación del 51% de su paquete accionario en YPF es 52 veces más que la segunda demanda más grande ante el CIADI contra la Argentina.
Casi todas estas demandas ante el CIADI invocan los tratados bilaterales de protección de inversiones (TBI) que nuestro país firmó con otros 58 Estados entre los años 1990 y 2002, 54 de ellos entraron en vigencia hasta el 2002 y uno en el 2010, con Senegal. Esto se condice con los datos globales del organismo: el 63% de las demandas invocan TBIs vigentes. El 61% de los casos sometidos ante el CIADI han sido resueltos por el organismo, mientras que el 39% restante han sido acordados por las partes o abandonados por las empresas demandantes. A su vez, de las decisiones dadas por los tribunales del CIADI el 76% de los reclamos han sido total o parcialmente favorables a las empresas. Según los criterios de la Procuración del Tesoro, una parte fundamental en cualquier arbitraje está dada al momento de la selección de los árbitros que resolverán el caso.
La demanda de Repsol (catalogada por el CIADI como el caso ARB/12/38) está precisamente en este punto. La empresa española ya ha designado al chileno Francisco Orrego Vicuña para integrar el tribunal, quien aceptó el cargo el 6 de marzo pasado. Los antecedentes de Orrego Vicuña en lo profesional como árbitro lo perfilan como uno de los 15 árbitros más nombrado sobre el total de las demandas existentes en el CIADI. Según un reciente informe del Corporate Europe Observatory (CEO) en Bruselas y del Transnational Institute (TNI) de Amsterdam, estos 15 árbitros son una élite que reúne el total de 55% del global de las demandas ante el organismo. Las autoras Pia Eberhardt y Cecilia Olivet ubican al árbitro chileno como tercero dentro de los árbitros más seleccionados y como uno de los favoritos de las empresas transnacionales, generalmente desempeñándose como presidente de los tribunales, pero en este caso elegido directamente por la empresa demandante. Ocupó varios cargos en el Gobierno durante los 16 años que duró la dictadura de Pinochet (1973-1989), de los que cabría destacar el de embajador de Chile en el Reino Unido (1983-1985). Destacó su fuerte respaldo al dictador cuando el juez Baltazar Garzón solicitó su extradición por delitos de lesa humanidad perpetrados contra nacionales españoles durante su régimen, diciendo que en Chile no había habido desapariciones bajo el gobierno pinochetista. Es un firme defensor del arbitraje de inversiones y se opone a que los tribunales nacionales resuelvan las demandas de inversores extranjeros, por lo que es un crítico abierto a la denominada “Cláusula Calvo” abrazada por toda América Latina por más de 150 años.
Argentina ha propuesto a la francesa Brigitte Stern, quien aceptó su nombramiento el 25 de marzo pasado. Stern es sin dudas la más elegida por los Estados demandados, lo cual la lleva a ser la que mayor casos ha atendido dentro de esta “élite de los 15”. Quizás sea la única árbitro dentro de este grupo que no trabaja dentro del sector privado sino enteramente para el sistema académico Catedrática en la Universidad de París I, Panthéon-Sorbonne.Según CEO & TNI, sólo una "élite de los 15" árbitros más
frecuentes en el CIADI reúne el 55% de los casos resueltos.
Elegidos los árbitros por la empresa y por el Estado, resta ahora seleccionar al árbitro que se el presidente del tribunal. Por los antecedentes dentro del CIADI, son siete las personas que posiblemente ocupe ese lugar definiendo la terna y los votos dentro del tribunal que atenderá el caso más caro para la Argentina. Una fuerte posibilidad recae en el canadiense Marc Lalonde quien ha trabajado repetidas veces dentro de este trío. De acuerdo al informe de CEO & TNI, Lalonde ha sido árbitro seleccionado 17 veces por empresas transnacionales, entre ellas CMS, Camuzzi, Sempra e ICS en casos planteados contra la Argentina y es directivo del Citibank Canadá, Air France y de algunas empresas mineras canadienses. Los casos relacionados con la energía y la minería representan la mitad de su trabajo conocido en el ámbito del arbitraje en materia de tratados de inversión. Sus fuertes vínculos con el mundo corporativo podrían explicar por qué los inversores lo han designado en 17 ocasiones y los Estados solo tres.
Otro nombre posible es el de L. Yves Fortier, también canadiense. Al igual que Lalonde, Fortier ha combinado cargos en el Gobierno con el ejercicio privado de la abogacía, el arbitraje y altos puestos corporativos. Fue embajador de Canadá en las Naciones Unidas y presidente del Consejo de Seguridad de la ONU en 1989. Actualmente, participa en el panel de arbitraje de dos de los casos más grandes en cuanto a monto reclamado: Yukos contra Rusia (103.600 millones de dólares) y Conoco Phillips contra Venezuela (30.000 millones de dólares). Ha sido miembro del directorio de varias empresas químicas, mineras y productora de aluminio.
El tercero de los posibles candidatos es Albert Jan van den Berg, holandés. Tiene una carrera muy activa como abogado y como académico. Ha sido nombrado al menos ocho veces por compañías en casos relativos a tratados de inversión; cinco de esos casos eran contra Argentina y a raíz de la respuesta del Estado a la crisis económica de 2001-2002. En dos de los casos, van den Berg respaldó resultados contradictorios, incluso cuando los hechos y los razonamientos de la defensa de ambas demandas fueron casi idénticos. Argentina cuestionó después la imparcialidad del árbitro, pero su petición fue desestimada.
Otro candidato a ocupar la presidencia del tribunal del caso Repsol es el francés Jan Paulson, alguien conocido en el ramo del arbitraje internacional y con oficinas en Londres, Miami y Bahrain. Es uno de los pocos árbitros de élite que sigue formando parte de una firma de abogados global, Freshfields, que es nada menos que el bufete que asesora a Repsol en la demanda contra la Argentina. Su imparcialidad fue cuestionada en 2008, durante el caso de Lemire contra Ucrania, porque el bufete Freshfields estaba defendiendo a Ucrania en otro caso. Actualmente, representa al gigante petrolero Conoco Phillips en su demanda de 30.000 millones de dólares contra Venezuela. En 2009, publicó una crítica devastadora sobre los Gobiernos que están intentando recuperar el control de sus recursos naturales de inversores extranjeros, que despliegan políticas redistributivas y que se muestran críticos con el arbitraje internacional y con las leyes que otorgan a los inversores extranjeros amplios derechos.
Otra posibilidad es William W. Park, norteamericano. Actualmente es presidente de la Corte de Arbitraje Internacional de Londres, también una de las instancias de arbitraje más herméticas: hasta 2006, estaba prohibido que se publicaran sus decisiones. Sugiere que los tratados de inversión que otorgan a los inversores extranjeros una amplia protección, así como el derecho a demandar directamente a los Gobiernos, son positivos para el desarrollo. Defiende las cláusulas de protección de las inversiones en acuerdos como el NAFTA y ha criticado a quienes han intentado suavizar sus disposiciones.
Los últimos dos posibles nombres dentro de las probabilidades más altas para que integren el tribunal son el italiano Piero Bernardini o el suizo Lucius Caflisch. Ambos ya han conformado tribunales contra la Argentina en al menos cinco oportunidades. La única demanda que tuvo un laudo por parte de este dúo fue un laudo en contra de nuestro país por 78 millones de dólares, y que Argentina decidió iniciar procedimiento de anulación en 2012, proceso hoy en trámite.Evolución del precio de las acciones de Repsol entre 2012 y 2013.
Si bien aún no es definitivo el nombre de quien pueda presidir el tribunal del CIADI por el caso Repsol, sí está claro que si es alguno de los mencionados el panorama para un laudo exitoso para Argentina es complicado. Esto solamente considerando lo “estratégico” de la designación de los árbitros, porque además deben tenerse en cuenta la cuestión sistémica del CIADI como organismo. Analizando esto se ve que el 47% de los árbitros son provenientes de países de Europa Occidental y el 22% de América del Norte. El resto de mundo ocupa en conjunto el 31%, dentro del cual América Latina ocupa solo un 10% es de América del Sur y el Caribe un 2%. Esto refleja un fuerte perfil del sistema jurídico anglosajón (common law) como criteria no formal para resolver los casos y no el derecho internacional como principal fuente normativa, aunque los tribunales del Ciadi no sean estrados anglosajones sino internacionales. Ello se ve en el intento de querer formar “precedentes judiciales” en tribunales que son únicos y creados especialmente para el caso (ad hoc). Esta es una fuerte contradicción que marca el sesgo del sistema arbitral en el CIADI más allá de la selección de árbitros individuales en casos particulares.Negocios son negocios: explotaciones de Repsol en Argentina.
Sabiendo que nuestro país es el más demandado en el mundo ante el CIADI, los escenarios se reducen a tres: quedarse dentro del sistema de protección de inversiones, esto es dentro del CIADI y manteniendo los TBI tal cual ha sido la postura argentina hasta hoy. Otro escenario sería denunciar el Convenio de Washington del CIADI y todos TBIs en bloque, lo que supone problemas para los próximos años, a raíz de las cláusulas de ultra-actividad que los TBI poseen y que alargan la vida de estos tratados por hasta 15 años después de denunciados, permitiendo “demandas póstumas”, es decir reclamos aun cuando nuestro país se haya retirado del CIADI y haya terminado todos los TBI. El tercer escenario es directamente plantear la nulidad de los TBIs, lo que tendría efectos retroactivos sobre todos los litigios comenzados desde su vigencia. En el caso argentino es posible hacerlo ya que la esencia de estos tratados es prorrogar su jurisdicción en favor de una instancia internacional como el CIADI, lo cual contradice al Art. 116 de la Constitución Nacional. Por otro lado, el Art. 46 de la Convención de Viena sobre Derecho de los Tratados de 1969 contempla la facultad de anular los tratados si van manifiestamente en contra de una norma fundamental del Estado. Tomar esa opción implicaría que todos los procesos vinculados al CIADI queden como si nunca hubieran sucedido y proteger a las inversiones o bien mediante la “Cláusula Calvo” o bien mediante la protección diplomática, como indica el derecho internacional consuetudinario, lo que ofrece una salida posible a la actual situación y plantea la necesidad de un nuevo tratamiento legal para las inversiones extranjeras en el país.
As the Obama Administration gets ready to negotiate a Trans-Atlantic "Free Trade" Agreement (TAFTA) with the European Union that takes aim at a host of health, financial, environmental and other regulations, a smorgasbord of corporate representatives (and a sprinkling of consumer groups) voiced their wishes for the pact this week. The occasion was a standing-room-only "stakeholder session," hosted by the administration's Office of Management and Budget and the European Commission, to get input on what TAFTA should or should not entail.
What neutral territory did the administration choose to consider such a critical question? Perhaps one of the many government-owned venues in downtown DC? Nope. They went with the headquarters of the Chamber of Commerce. The Chamber's not exactly a disinterested party in a pact that could implicate a wide swath of U.S. regulation used to balance big business's quest for profits with the public's quest for financial stability, a healthy environment, safe products, and affordable medicines. The venue choice is akin to the Environmental Protection Agency hosting a forum on offshore drilling...on an offshore drill.
But at least the administration granted public interest groups like us some time to offer input. As in, a half hour. Total. For all consumer groups. In a 1.5-day-long forum otherwise filled almost exclusively by industry representatives. If relative allotment of time is indicative of the relative importance the administration attributes to industry views on TAFTA vs. the views of everyone else, big business "stakeholders" hold 76% of the administration's attention, technical standards organizations hold 11%, and the opinions of the rest of us are worth 13%.
During that half hour, I squashed Public Citizen's initial take on TAFTA, one of the largest "trade" deals proposed to date, into a five-minute statement. For a nutshell view of what's at stake in TAFTA, here's the statement:
Oral Statement for the U.S.-EU High Level Regulatory Cooperation Forum
April 10, 2013; Public Citizen’s Global Trade Watch; Ben Beachy, Research Director
Public Citizen welcomes the opportunity to comment on regulatory cooperation between the United States and EU in the context of the recent decision to launch negotiations for a Trans-Atlantic Free Trade Agreement, or TAFTA. Public Citizen is a national, nonprofit public interest organization with 150,000 members that champions citizen interests before Congress, executive branch agencies and the courts. Public Citizen believes that advancement of consumer well-being must be the primary goal of any U.S.-EU pact.
We are skeptical that a deal built on regulatory convergence, as proposed for TAFTA, will serve consumer interests. Consumers have different priorities in different countries. Differences in regulatory standards between countries with different constituent priorities should be expected and respected as the legitimate outgrowth of trade between democratic nations, such as those contemplating TAFTA. However, the process leading to the launch of TAFTA negotiations has been characterized by attempts to eliminate regulatory distinctions for the sake of narrow business interests. It is not apparent that any efficiency gains resulting from regulatory convergence would a) significantly accrue to consumers rather than just to those business interests, b) outweigh consumers’ loss of ability to set the regulations that affect them, or c) justify the considerable expenditure of limited government resources to engage in multi-year negotiations between Parties with already low tariffs. Before adopting a regulatory convergence approach, the U.S. and EU should establish a transparent process to study these critical questions.
If TAFTA proceeds with the approach of trying to establish uniform standards, then the established standard should be set as a regulatory floor, not a ceiling. This approach safeguards the ability of a country to establish stronger standards in response to emerging consumer demands or unforeseen policy challenges and crises. Given that trade agreement rules are not easily altered and that negotiators cannot see into the future, such flexibility is essential. A common regulatory floor set at the highest standard of any involved country would still provide efficiency gains without sacrificing consumer protections. The U.S. and EU should exclude from the pact any sector or area where they cannot agree on this floor-not-ceiling framework.
Any standard-setting terms in TAFTA must strengthen consumer protections in critical policy arenas. To ensure food safety, for example, any rules implicating food health standards or labeling must be limited to requiring that policies be applied equally to domestic and foreign goods. Each nation must be allowed to set non-discriminatory standards and labeling policies based on consumer demands and priorities alone. To ensure financial stability, any harmonized standards must set a floor of strong financial regulation based on the most robust post-crisis reregulation efforts of the U.S. and EU. The agreement must explicitly safeguard measures such as non-discriminatory bans on risky products, facially neutral limits on firm size, and capital controls – now officially endorsed by the IMF. Any deal should also establish a more effective exception for prudential measures than seen in the WTO.
To ensure climate security, any agreement must provide policy space for signatory countries to respond to the emerging climate crisis with stronger policies to control greenhouse gas emissions. This includes allowance for feed-in tariffs, emissions-based taxation, and performance standards. Consumers’ access to an open Internet and affordable medicines, meanwhile, should not be implicated by TAFTA. Overreaching patent and copyright provisions in past “trade” agreements, the Stop Online Privacy Act (rejected by the U.S. Congress) and the Anti-Counterfeiting Trade Agreement (rejected by the European Parliament) have threatened such access. The U.S. and EU already provide robust patent and copyright protections without the addition of such sweeping terms. To ensure the protection of these consumer rights, this prospective agreement must exclude intellectual property provisions.
Any agreement must not include the extreme investor-state system included in past U.S. and EU trade and investment deals. The investor-state mechanism uniquely empowers foreign investors to directly challenge sovereign governments over contested public interest policies in tribunals that operate completely outside any domestic legal system. The ostensible premise for such an extreme procedure is that some domestic legal systems are too corrupt, incompetent or ill-equipped to hear foreign investors’ claims. Since neither the U.S. nor any EU member state is likely to assert that this description befits the legal system of any TAFTA nation, the anomalous investor-state system is absolutely unacceptable for TAFTA. So are the open-ended rights provided to foreign investors, but not domestic firms, under this system. Inventive tribunals have imputed, for example, a right of investors to obtain government compensation for any policy that contravenes their expectations. The U.S. government has rightly argued that such broad terms, which have enabled the current surge in costly investor-state cases, would cause the government to lose the right to regulate in the public interest.
Given that TAFTA could implicate a wide swath of domestic non-trade policies, including those named here, the respective legislatures must establish binding goals for the negotiations before talks begin, and should be consulted regularly to ensure those objectives are being fulfilled. Any resulting agreement should not be signed unless and until the U.S. and EU legislatures approve the proposed text through a vote that affirms it has met the established objectives. The process must also be open to the public. Negotiating texts and country submissions for TAFTA must be made publicly available so that stakeholder groups, including those not granted preferential access to official trade advisory committees, can give meaningful input on the critical policy decisions at issue. Negotiators should consult not just with the industry groups that have been disproportionately consulted in past agreements, but with the more diverse array of stakeholders that is required to represent the consumer interests that should stand at the heart of any deal.
A report released yesterday by the United Nations Conference on Trade and Development (UNCTAD) reveals that foreign corporations are taking governments to court under the notorious investor-state system at an alarming and increasing rate. In 2012, 62 new investor-state cases were filed - of the known 518 cases to date – which is the highest number of investor-state cases ever filed in a year. In 68% of these cases, it was a developing country whose health, environmental or other public policy was being directly challenged by a foreign firm. The report noted that the firms that have launched investor-state cases to date are predominantly U.S. corporations. These cases are decided by tribunals that sit outside of any domestic legal system, typically comprised of three private sector attorneys. Of the cases publicly decided in 2012, 70% of the victories went to the foreign investor, requiring the government to compensate the firm.
Investor-state arbitrations in 2012 revealed an increasing trend in foreign investors' attacks against states’ nondiscriminatory public interest policies, including changes to domestic regulatory frameworks concerning nuclear energy and currency stability, revocation of mining and oil licenses (often in response to contract violations), and numerous other government measures affecting public health, financial stability, access to essential services and the environment. The UN report concluded that the “trend of investors challenging generally applicable public policies, contradictory decisions issued by tribunals, an increasing number of dissenting opinions, [and] concerns about arbitrators’ potential conflicts of interest all illustrate the problems inherent in the system.”
In addition to setting the record for most new cases filed in a year, 2012 also broke the record for the largest ever investor-state "award," the taxpayer-funded penalty that a tribunal orders a government to pay to a foreign investor when the tribunal rules against the government. In Occidental v. Ecuador, the tribunal ordered Ecuador to pay Occidental Petroleum Corporation around 1.8 billion dollars, which rose to more than $2.4 billion with interest and fees -- roughly the government's annual expenditure on health care for half the country. The tribunal ruled against Ecuador for the government's termination of an oil contract that Occidental had violated (which the tribunal acknowledged). To calculate the historic penalty imposed on Ecuadorian taxpayers, two of the tribunalists used logic described by the third tribunalist as "egregious."
These disturbing trends underlie the growing demands to reform the investor-state dispute system. Upon releasing the report, James Zhan, Director of UNCTAD’s Division on Investment and Enterprise, said that the rise in the investor-state system's "cross-cutting challenges...gives credence to calls for reform of the investment arbitration system.” He noted, “the [investor-state] mechanism is already a source of considered reflection in numerous bilateral and regional [trade and investment] negotiations.”
One of those negotiations is the Trans-Pacific Partnership (TPP), the sweeping NAFTA-style "trade" deal under negotiation between the U.S. and 10 Pacific Rim nations, which, according to the leaked investment chapter, would expand the investor-state system even further. But the "considered reflection" of other TPP countries has made them wary of binding themselves to a system that has delivered a mounting number of costly attacks on the public interest policies of 95 countries. Australia has already refused to sign on to any investor-state provisions. Other countries may follow their lead. In the meantime, global resistance to the extreme investor-state system is growing, with countries like Brazil, India, South Africa, and Ecuador rejecting its threats to democratic policymaking in the public interest. As investor-state cases continue to soar, public and governmental opposition is following suit.
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