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by Editors — last modified Feb 03, 2014 12:45 PM
Contributors: Faiz Ahmed, JBB, Graham H. Cox, R. Dubois, JA Cox

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Background on Opposition to Investor State Dispute Settlement in Free Trade Agreements

by Graham H. Cox last modified Jul 27, 2014 08:24 AM
Investor-state dispute settlement (ISDS) mechanisms allow foreign investors to bypass domestic courts to challenge government legislation and laws before unaccountable international arbitration tribunals.

Transatlantic Trade and Investment Partnership (EU-US)

ISDS is slated to be a key feature of the Transatlantic Trade and Investment Partnership (TTIP) currently being negotiated between the U.S. and the European Union (EU). The planned provisions are modelled on the ISDS mechanism in the Canada-EU Comprehensive Economic and Trade Agreement (CETA).

Popular back-lash including from European social democratic parties on ISDS lead to a ceasing of TTIP ISDS negotiations. A broad public consultation was launched by the European Commission on ISDS.1

The Trade Justice Network, a number of its member organizations, and other Canadian organizations made submissions to the consultation to ensure the connections between CETA and TTIP were reflected in the consultation.

Scott Sinclair of the Canadian Centre for Policy Alternatives made a submission to the Commission which outlines the details of the dangers of ISDS in CETA including how it could be used by US companies to circumvent any attempt to undermine ISDS in the TTIP.2

 

European and international union federations on CETA and TTIP ISDS provisions

Unison has released strong language on ISDS and TTIP stating "the removal of the Investor State Dispute Settlement (ISDS) mechanism. ISDS has no place in a trade deal between two trading blocs with well-established legal systems and effective existing protections for investors."3

EPSU has leaked text that show public services have not been excluded in the draft text. The release also outlines how the high number bilateral trade agreements create a maze of agreements that make it virtually impossible to undo liberalization.4 EPSU's 2014 congress also passed a resolution called 19. Fighting for a Future for All which explicitly stated they will "oppose all attempts to include any Investor State Dispute Settlement mechanism" in TTIP.5

ETUC has stated that the EU-Canada trade agreement should not be used as a "Trojan horse" to smuggle in a controversial Investor-to-State Dispute Settlement (ISDS).

"This looks like a cynical attempt to create a fait accompli for the EU-US trade talks" said Bernadette Ségol, General Secretary of the ETUC "and to undermine opposition to ISDS."6

PSI Executive Board endorses aggressive and far-reaching programme that included strong language against "new cycle of 'free trade' deals, TISA, TPP and TTIP that represent a direct attack on national and local government ability to deliver quality public services."7

Shifting European Union position on ISDS

The European Commission's new president, Jean-Claude Juncker, outlined opposition to investor-state dispute settlement provisions in his "Political Guidelines" document.8

European Union parliament has also elected an increased number of anti-ISDS members from both sides of the political spectrum.

Together, this has lead to a shift that has even been reported from the top European Commission trade negotiator. EU Trade Commissioner Karel De Gucht has admitted to the press that his previous "unanimous mandate" to negotiate ISDS into trade agreements could be shifting.

With the incoming EU Commission President Jean-Claude Junker apparently opposed to including ISDS in the agreement with the U.S., the Council changing their minds is a distinct possibility.

iPolitics quoted De Gucht, the EU Trade Commissioner saying:

"This will be a very interesting thing, because it's not only CETA. We will be confronted with that problem in a number of agreements," De Gucht said.

"Parliament will have to ask itself whether they want to put in jeopardy a number of agreements and work of years and years on this. I mean, it's a Parliament, so a Parliament can vote. And that's what a Parliament is made for, to vote."9

Trans-Pacific Partnership (TPP)

The International Trade Union Confederation (ITUC) delegates gave "a resounding "No" to Trans Pacific Partnership" with 90% of delegates voting for the statement that "the TPP should not go ahead and must be scrapped."10

ISDS is a major sticking point in the TPP negotiations, but is currently included in the agreement.

Concerns include the legal action through ISDS against the minimum wage in Egypt and its impact on pension schemes privatization.

There is a sense at the tables that the tide is moving against ISDS. The Japan-Australia agreement does not have ISDS, France and Germany are re-evaluating it; South Africa, Brazil and Indonesia have policy against it.

An additional stumbling-block is that there is no "conflict of interest" provision language in the current ISDS section for TPP. This means that the corruption of revolving doors between the lobbyist community, government and arbitrators directly highlighted by the Corporate Europe Observatory have been ignored for TPP.

Also of concern with ISDS in TPP are that "State-Owned Enterprises" will be captured under ISDS provisions in the investment chapter.

Recent Investor-State Challenges Against Canada

    Challenge Against a Drug Patent Ruling

    Eli Lilly (pharmaceuticals) claims a court decisions invalidating one of the company’s patents breach international obligations (2012).

    Challenge against Quebec's Fracking Moratorium

    Lone Pine claims that the moratorium against all oil and gas exploration activities under the Saint Lawrence River, adopted June 13, 2011, is a form of indirect expropriation without compensation of the company's potential future profits.

    $130-million AbitibiBowater payout

    AbitibiBowater was paid $130M to drop its $500M lawsuit against Newfoundland and Labrador after the expropriation timber, water and hydro-electric rights and assets. These were granted to Abitibi a century ago on condition the company use them in its production process.

    Hibernia and Hebron Oil Field R&D

    NAFTA investment panel has asked the province of Newfoundland and Labrador to remove research and development requirements on offshore oil and gas production in the Hibernia and Hebron oil fields. The wealthy oil companies were asking for $65 million in compensation for the R&D policy, which they successfully argued to be a "performance requirement" that is prohibited by NAFTA.

     

    Footnotes:

    1 Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP) http://trade.ec.europa.eu/consultations/index.cfm?consul_id=179
    4 Leaked documents TTIP reveal substantial EU commitments, public services not excluded. http://www.epsu.org/a/10558
    6 Canada-EU trade deal: Trojan horse for contested ISDS? http://www.etuc.org/press/canada-eu-trade-deal-trojan-horse-contested-isds
    7 PSI Executive Board endorses aggressive and far-reaching programme http://www.world-psi.org/en/psi-executive-board-endorses-aggressive-and-far-reaching-programme
    8 A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change | Jean-Claude Juncker http://ec.europa.eu/about/juncker-commission/docs/pg_en.pdf
    9 CETA 'should be initialed by September 25': EU Trade Commissioner | iPolitics: http://www.ipolitics.ca/2014/07/22/ceta-should-be-initialed-by-september-25-eu-trade-commissioner/
    10 ITUC delegates give a resounding "No" to Trans Pacific Partnership http://www.world-psi.org/en/ituc-delegates-give-resounding-no-trans-pacific-partnership

    Recent Investor-State Challenges Against Canada

    1. Challenge Against a Drug Patent Ruling (NAFTA)

    · Eli Lilly (pharmaceuticals) claims a court decisions invalidating one of the company’s patents breach international obligations (2012).

    2. Challenge against Quebec's Fracking Moratorium (NAFTA)

    · Lone Pine claims that the moratorium against all oil and gas exploration activities under the Saint Lawrence River, adopted June 13, 2011, is a form of indirect expropriation without compensation of the company's potential future profits.

    3. $130-million AbitibiBowater payout

    · AbitibiBowater was paid $130M to drop its $500M lawsuit against Newfoundland and Labrador after the expropriation timber, water and hydro-electric rights and assets. These were granted to Abitibi a century ago on condition the company use them in its production process.

    4. Hibernia and Hebron Oil Field R&D (NAFTA)

    NAFTA investment panel has asked the province of Newfoundland and Labrador to remove research and development requirements on offshore oil and gas production in the Hibernia and Hebron oil fields. The wealthy oil companies were asking for $65 million in compensation for the R&D policy, which they successfully argued to be a "performance requirement" that is prohibited by NAFTA.
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    #CETA Canada-EU free trade deal to be rejected by Germany for #ISDS | Sueddeutsche | Reuters

    by Graham H. Cox last modified Jul 26, 2014 09:51 AM
    "Germany is to reject a multi-billion free trade deal between the European Union and Canada which is widely seen as a template for a bigger agreement with the United States, a leading German paper reported on Saturday."

    The link address is: http://www.reuters.com/article/2014/07/26/germany-canada-trade-idUSL6N0Q10CS20140726

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    Why Are Campus Administrators Making So Much Money? | Counter Punch

    by Faiz Ahmed last modified Jul 24, 2014 11:13 PM
    "The soaring incomes of campus administrators are paralleled by their soaring numbers. Between 1993 and 2009, their numbers reportedly increased by 60 percent, to 230,000―ten times the rate of growth of the faculty. ... In Canada, where the situation is much the same, faculty members recently teamed up in groups of four to apply for an advertised position as president of the University of Alberta. ... Not surprisingly, the soaring income and numbers of administrators have led to their consuming an increasing share of the campus budget, thereby reducing the percentage spent on teaching and research."

    The link address is: http://www.counterpunch.org/2014/07/22/why-are-campus-administrators-making-so-much-money/

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    Ukraine Prime Minister Resigns as Key Coalition in Parliament Falls Apart | The New York Times

    by Faiz Ahmed last modified Jul 24, 2014 11:01 PM
    "The developments in Parliament on Thursday highlighted the difficulties Ukrainian leaders have faced trying to run a country that was on the verge of financial collapse even before Russia invaded and annexed Crimea, and rebels in the east plunged the country into war."

    The link address is: http://www.nytimes.com/2014/07/25/world/europe/ukraine-parliament-takes-step-toward-elections.html

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    The Most Violent 48 Hours Of The Entire Syrian War Centered Around Gas Fields | Business Insider

    by Faiz Ahmed last modified Jul 24, 2014 11:00 PM

    "On July 19, Islamic State of Iraq and the Levant (ISIS) militants attacked gas fields in Sha'ar, Syria, east of Homs. According to the London-based Syrian Observatory for Human Rights as cited by Reuters, roughly 270 government soldiers and gas field employees were killed, many of them execution-style. The jihadists reportedly lost 40 fighters in the assault as well. Another 400 people were killed in hostilities country-wide towards the end of last week, a 48-hour span that represented "the bloodiest fighting since the civil war began in 2011." Full article here.

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    Ready to pick up the gauntlet? Trade unions must follow Unison into battle on September 30 | Morning Star

    by Graham H. Cox last modified Jul 24, 2014 03:37 PM
    "Two million public-sector workers went on strike a fortnight ago, protesting against poverty pay that has seen the value of their pay packets trimmed by 20 per cent in five years. Firefighters’ leader Matt Wrack told the central London rally in support of the strike: “You know that we should do this again. “And you know that we should do this again soon.”"

    The link address is: http://www.morningstaronline.co.uk/a-0090-Star-Comment-Ready-to-pick-up-the-gauntlet

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    At least 15 die in Israeli shelling of Gaza school as toll exceeds 750 | Reuters

    by Graham H. Cox last modified Jul 24, 2014 03:35 PM
    "Gazan authorities said Israeli forces shelled a shelter at a U.N.-run school on Thursday, killing at least 15 people as the Palestinian death toll in the conflict climbed over 750 and attempts at a truce remained elusive. "

    The link address is: http://www.reuters.com/article/2014/07/24/us-mideast-gaza-idUSKBN0FT06I20140724

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    Israel may have committed war crimes during Gaza offensive, UN says | Guardian UK

    by Graham H. Cox last modified Jul 23, 2014 04:06 PM
    "The UN has said that Israel may have committed war crimes in its offensive against Hamas in Gaza, in which hundreds of Palestinian civilians have been killed in two weeks, and voted to launch an international inquiry with only the US in opposition to the move."

    The link address is: http://www.theguardian.com/world/2014/jul/23/israel-may-have-committed-war-crimes-in-gaza-un

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    It Didn't Work for the Nazis and It Won't Work for Israel

    by JBB last modified Jul 23, 2014 04:05 PM
    Uri Avnery is a former Knesset member and founder of Gush Shalom

    What would history look like if it were written in the style of the Israeli ‘Protective Edge’ operation in Gaza, asks URI AVNERY | The Morning Star | Click HERE to read article

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    On Capital, Real Socialism, and Venezuela: An Interview with Michael A. Lebowitz

    by JBB last modified Jul 23, 2014 11:25 AM

    by Gülden Özcan and Bora Erdağı | MR Zine | Click HERE to reed article

    "It is essential to articulate what is implicit in current struggles to show how these contain within them the elements of a new society.  To see the future in the present is what is needed if we are to build that future."

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    Investor-State Dispute Settlement in #TTIP & #CETA: Submission to EU Public Consultation | Scott Sinclair

    by Graham H. Cox last modified Jul 23, 2014 09:49 AM
    "Faced with unprecedented levels of public criticism, however, the European Commission has paused the TTIP negotiations on ISDS in order to consult the public. In his submission to the consultation, Scott Sinclair, CCPA’s senior trade policy researcher, argues that there is no credible justification for including ISDS in either the CETA or the TTIP."

    The link address is: http://www.tradejustice.ca/investor-state-dispute-settlement-in-the-ttip-and-ceta-submission-to-the-european-commissions-public-consultation-ccpa/

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    Chavista Debate More than Pragmatists vs Radicals | Federico Fuentes

    by Graham H. Cox last modified Jul 22, 2014 10:08 AM
    "Neftali Reyes, a regular contributor to the pro-revolution website Aporrea, notes that many of the concerns Giordani raises can be traced back to Chavez’s presidency. Reyes points out that Chavez also called meetings with business sectors and initiated mechanisms to periodically free-up the flow of dollars to the private sector. Similarly, the fact that Rafael Ramirez has been reaffirmed as vice-president for the economy and PDVSA president (a post he has held for the past decade), is a sign of continuity in the government’s economic team. Ramirez also has a long history of involvement with Marxist groups."

    The link address is: http://venezuelanalysis.com/analysis/10798

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    Condeming the violence in Gaza by acknowledging Canada's own violent history | Nora Loreto

    by R. Dubois last modified Jul 21, 2014 02:40 PM
    "Considering our shared histories, I don’t expect the Canadian media to report on anything more sophisticated than to simply regurgitate Israel’s PR machine. I don’t expect Conservative MPs to condemn the killing. I don’t even expect Liberal MPs to either. I do expect, however, that anyone with knowledge of our history to make these links when they condemn Israel. If we express our solidarity with Palestine, we must acknowledge and fight to end on-going colonialism in Canada. We must support resistance where it happens. We must be present. We must use whatever tools we have available to us to do our part and undo some of our own legacy of terror."

    The link address is: http://rabble.ca/blogs/bloggers/nora-loreto/2014/07/condeming-violence-gaza-acknowledging-canadas-own-violent-history

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    "U.S. Complicity Brought Up to Date" in Israel's War against Gaza

    by JBB last modified Jul 21, 2014 10:20 AM

    Phyllis Bennis says the calls in Israeli for genocide against Gaza are not only coming from fringe elements in the political establishment | The Real News | Click HERE to read article

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    #CETA & other free trade agreements at heart of Thunder Bay Unifor strike at Bombardier

    by Graham H. Cox last modified Jul 21, 2014 10:20 AM
    "Meanwhile, trade agreements like the one Canada has signed with the European Union could allow foreign-owned competitors to more aggressively challenge `those local content rules, Lavoie said. “What you could have is a European company like (Germany’s) Siemens or (France’s) Alstom say, ‘I’ll buy my suspension and brakes and this and that in Canada but I’ll make the cars in Mexico or the U.S.,” he said."

    The link address is: http://www.thestar.com/business/economy/2014/07/18/why_the_stakes_are_high_at_bombardiers_strikebound_thunder_bay_plant.html

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    Canada's anti-union lobby is at the heart of the deceptive campaign for more TFWs | David Climenhaga

    by R. Dubois last modified Jul 21, 2014 08:44 AM
    "Judging from what they read and hear in the news, Canadians can be forgiven for concluding a large number of organizations representing a broad range of opinions are lobbying public-spiritedly for more access to Temporary Foreign Workers by Canadian businesses. But while many individual business owners would no doubt love to have a direct pipeline to the huge international pool of compliant, vulnerable and easy-to-exploit foreign workers instead of yielding to market pressure to pay Canadians a living wage, the seeming multitude of public voices calling for more access to TFWs originates mainly with a small group of individuals and well-financed interlocking organizations."

    The link address is: http://rabble.ca/blogs/bloggers/djclimenhaga/2014/07/canadas-anti-union-lobby-heart-deceptive-campaign-more-tfws

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    Political ideology is not a map, grid, graph or chart

    by JBB last modified Jul 18, 2014 10:37 AM

    by Adam Riggio | Rabble.ca When we think of political concepts as plots on a grid, we all lose. To truly understand someone's politics, more precise questions about their actual political and moral principles need to be asked. Click HERE to read article.

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    "Evacuate to Where?" - Report from Gaza and Israel

    by JBB last modified Jul 18, 2014 10:23 AM

    Gaza-based blogger Nalan al Sarraj and TRNN's Lia Tarachansky report on the mood of the people in Gaza and Israel as Israeli ground troops join the attack | The Real News | Click HERE to watch video

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    How capital captured politics

    by JBB last modified Jul 18, 2014 10:18 AM
    by Slavoj Žižek | The Guardian | Click HERE to read article

    WikiLeaks has shown us that western democracies are now ruled by market forces that debase the very notion of freedom

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