SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
apep
'Time to Exit ISDS': Hundreds of Groups Call On US to Ditch Corporate-Friendly Trade Regime
"The ISDS regime is undemocratic: It was created for and by powerful, well-organized corporations, and has served their interests almost exclusively," said one critic.
Nov 03, 2023
More than 200 civil society groups on Thursday called on the Biden administration to protect climate, health, and other public interest policies across the Americas by dismantling a trade regime that the United States spearheaded nearly three decades ago—giving corporations broad authority to sue governments if they claim their profit margins are harmed by public programs.
Public Citizen, Sierra Club, and the AFL-CIO led hundreds of organizations in sending the letter to President Joe Biden, urging him to take legal action to terminate the Investor-State Dispute Settlement (ISDS) system within the Americas Partnership for Economic Prosperity (APEP), a trade framework between the U.S. and 11 countries in Central and South America and the Caribbean.
As Lori Wallach and Daniel Rangel, the director and research director of ReThink Trade, explained in a column in July, "ISDS elevates multinational corporations and foreign investors to equal status with national governments."
Under 43 ISDS-enforced agreements among the 12 APEP countries, corporations have launched more than 230 legal attacks, including a demand for $15 billion from the U.S. government—funded by taxpayers—by the Canadian firm that proposed the Keystone XL pipeline.
"The ISDS regime is undemocratic: It was created for and by powerful, well-organized corporations, and has served their interests almost exclusively," said Mario Osorio, senior fellow at the Center on Inclusive Trade and Development at Georgetown University Law Center. "It also poses a real threat to the world's climate action efforts, having already been used against them."
There are currently 73 pending ISDS cases totaling $47 billion in corporate claims, the civil society groups noted on Thursday.
"ISDS claims are often in the millions or billions of dollars," the groups wrote in the letter. "An unaccountable three-person tribunal decides the fate of each case. The tribunal can even decide a company should be paid for the 'expected future profits' it may have earned in the absence of the government policy in question. The ISDS regime has been especially detrimental to public health, climate and environmental protections, Indigenous land rights, financial regulations, and democratic sovereignty."
The system, said Cathy Feingold, international director at the AFL-CIO, "creates an unfair playing field that prioritizes the needs of corporations over those of workers, their families, and the environment."
"ISDS should be removed from our trade framework and replaced with policies that promote good jobs, strong communities, and a sustainable environment," Feingold added.
The organizations acknowledged that Biden has thus far followed through on a campaign promise to not pursue new trade and investment agreements with ISDS, but as Sen. Elizabeth Warren (D-Mass.) said in a statement supporting a report on the system released last week by ReThink Trade, "future agreements are only part of the battle."
"The United States is still locked into many preexisting agreements that allow corporations to weaponize ISDS when we do something that they don't like. I'm going to keep on fighting until every last one of our trade agreements is ISDS-free," said Warren, who has previously criticized the scheme.
The senator also sent a letter to Biden this week, along with more than 40 colleagues, calling on him to remove ISDS from existing APEP agreements.
Thursday's letter came a day before Biden was scheduled to host the heads of state of Latin American countries for an APEP meeting.
The report by ReThink Trade detailed legal mechanisms that the U.S. and its APEP partners can use to terminate ISDS liability, including:
- A termination of bilateral investment treaties (BITs) with an agreement to neutralize sunset clauses;
- An amendment to remove the investment chapter from foreign trade agreements (FTAs), which can be finalized if there is mutual agreement between the parties involved; and
- Withdrawal of consent to ISDS arbitration from BITs and FTAs, which would "enable countries to focus on developing new approaches to investment policy and dispute settlement that better meet their policy goals."
Joseph Stiglitz, economics professor at Columbia University, noted that the call to exit ISDS is "especially relevant" because Biden launched APEP partially with the aim of "fighting climate disaster and economic inequality, improving public health, [and] strengthening democracy."
"To achieve any of these goals, ISDS has to go. It is a direct hindrance," said Stiglitz. "Launching this as a group exit would be very helpful in protecting our neighbors from one of the factors that leads some countries not to exit. That is the fear, not grounded actually with much evidence but still it's a fear, that investors will see an individual country leaving the system as a signal of some sort that they're not committed to good investment. When a bloc of countries exit together, there's safety in numbers."
The civil society groups noted that "the tide is turning" against ISDS in other countries, with 10 European countries abandoning the Energy Charter Treaty due to its ISDS rights for fossil fuel companies, and countries such as South Africa, Indonesia, and India working to exit similar agreements.
"Continued movement away from ISDS by the United States," said the groups, "would be a powerful signal to other governments considering taking similar action."
Keep ReadingShow Less
Biden Should Use the Americas Partnership for Economic Prosperity to Free the Hemisphere From ISDS
One of the most controversial aspects of the hyperglobalization era, investor-state dispute settlement elevates multinational corporations and foreign investors to equal status with national governments.
Jul 20, 2023
The president’s extended national Bidenomics tour touted the administration’s break with “neoliberal” policies and the resulting increase in wages, manufacturing jobs, and infrastructure investment. That fêete should extend through the month: On July 1, the United States also celebrated an important rollback of one of the most controversial aspects of the hyperglobalization era, the investor-state dispute settlement regime.
Investor-state dispute settlement, or ISDS, elevates multinational corporations and foreign investors to equal status with national governments, empowering them to skirt domestic courts and sue governments before panels of three corporate lawyers to enforce special privileges and rights included in trade and investment agreements. The lawyers can award corporations unlimited sums to be paid by a country’s taxpayers—including for the loss of expected future profits.
Foreign corporations need only convince the tribunals of lawyers that a country’s environmental law, judicial decision, or safety regulation violates their extraordinary investor rights. The tribunals’ decisions are not subject to appeal, and the amount awarded has no limit. After ISDS attacks on critical environmental, energy, health, and even racial justice policies, countries have either paid corporations hundreds of millions in taxpayer funds or rolled back public interest policies.
As a candidate, now-President Joe Biden committed to excluding ISDS from any commercial agreement he negotiated if elected. We urge President Biden to be more ambitious.
Shamefully, it was the U.S. government that was one of the world’s major pushers of ISDS, including by inserting it into the 1994 North American Free Trade Agreement (NAFTA) and then other free trade pacts.
Almost 30 years later, more than $859 million in compensation has been granted to corporations in NAFTA ISDS attacks on oil, gas, water, and timber policies; toxics bans; health and safety measures; and more. This does not include demanded compensation in pending claims, such as the Keystone XL case against the United States through which a Canadian corporation currently seeks $15 billion from U.S. taxpayers over the revocation of a permit to build an oil pipeline across North America.
As the record of outrageous ISDS rulings grew and as the United States faced investor challenges that infuriated members of Congress and state and local officials, more scrutiny was focused on the obscure process few originally even realized was embedded in a dozen U.S. trade pacts.
The fight came to a head during the Obama Administration, which was pushing for a massive expansion of ISDS through the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP). The two pacts would have empowered tens of thousands of new foreign investors to challenge U.S. policies and demand taxpayer compensation, while also enabling U.S. investors’ ISDS challenges against dozens of countries.
Opposition to ISDS was a major factor for the Obama Administration’s failure to garner a congressional majority for the TPP in the year after it was signed in 2015. The TTIP was sunk by ISDS opposition in Germany, which had been a major ISDS proponent until being faced with billions in claims in two cases filed by Swedish energy firm Vattenfall over improved coal-fired electric standards and phase-outs of nuclear power.
Associations of U.S. local and state government officials voiced their opposition to ISDS, including the U.S. National Conference of State Legislatures (NCSL), representing the mainly Republican-controlled U.S. state legislative bodies:
“NCSL will not support Bilateral Investment Treaties (BITs) or Free Trade Agreements (FTAs) with investment chapters that provide greater substantive or procedural rights to foreign companies than U.S. companies enjoy under the U.S. Constitution. Specifically, NCSL will not support any BIT or FTA that provides for investor/state dispute resolution.”
The 2018 renegotiation of NAFTA provided the opportunity to begin the U.S. extraction from ISDS liability. Eliminating ISDS has long been a priority demand of congressional Democrats lawmakers while then-U.S. Trade Representative Robert Lighthizer opposed ISDS for subsidizing the offshoring of U.S. manufacturing jobs and undermining national sovereignty.
The result was NAFTA’s ISDS was altogether phased out over three years between the U.S. and Canada and its scope and reach drastically reduced with Mexico, as part of the July 1, 2020 U.S.-Mexico-Canada Agreement (USMCA) that replaced NAFTA.
Much of the world has turned against the ISDS regime as attacks against domestic public interest policies mounted and econometric studies found no proof that countries’ exposing themselves to ISDS liability gained more foreign direct investment.
Numerous countries, starting with South Africa and now including Bolivia, the Czech Republic, Ecuador, India, Indonesia, and Poland terminated their ISDS-enforced agreements or otherwise reduced their ISDS liability. Brazil refused to enter into such agreements in the first instance.
In 2020, 23 E.U. countries adopted a multilateral treaty to terminate all ISDS treaties among them. And 11 of them, including Germany, France, the Netherlands, and other countries that had previously joined the United States in pushing ISDS worldwide, announced their exit from the ISDS-enforced Energy Charter Treaty (ECT) after ISDS attacks on green energy policies. As a matter of fact, last month the European Commission announced the E.U.’s coordinated exit from the ETC.
As a candidate, now-President Joe Biden committed to excluding ISDS from any commercial agreement he negotiated if elected. We urge President Biden to be more ambitious.
Soon, talks are expected to start for an Americas Partnership for Economic Prosperity (APEP), a forum Biden launched at the June 2022 Summit of the Americas. The United States should use the APEP process to partner with its neighbors to free the hemisphere of ISDS.
With U.S. leadership, APEP could provide the participating countries Barbados, Canada, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Mexico, Panama, Peru, Uruguay, and the United States a path to liberty from ISDS.
All but two of these countries (Barbados and Canada) have an agreement in force with the United States that includes ISDS. Plus, many have additional investment agreements with ISDS in effect between them. This thicket of deals exposes the countries to multimillion-dollar corporate attacks on public interest policies for a just energy transition and the creation of resilient public health systems that are in the interest of all people in the hemisphere. Recently elected leaders of APEP countries, such as Gabriel Boric in Chile and Gustavo Petro in Colombia, have also expressed opposition to ISDS.
A U.S.-led ISDS exit via APEP would be a true win-win. The U.S. acting in cooperation with its allies would achieve an outcome beneficial to all and strengthen its ties in the hemisphere in doing so. It would be extremely difficult for Biden officials to find a similar opportunity in any other trade negotiation.
Keep ReadingShow Less
Most Popular