[inDigiNeous]

The most alarming features of this proposed legislation are the facts that it contains this:

".. it also contains an ‘investor protection’ provision allowing corporations to effectively sue governments for taking action to harm their business."

(source: http://www.publicfinanceinternational.org/news/2016/02/ttip-...)

So .. effectively, this could mean that a corporation could overrule a government in legislation if it would be harming it's profits.

The big problem with this for example here in Finland is that through these measure big corporations could try to take over the nations natural resources, like water and forest, which are and should be protected by local laws. But through this kind of legal means, these corporations could be allowed to sue the government over the loss of a profit due to protecting legislation, in order just to make a profit out of it. Which is complete and total bullshit.

[toomuchtodo]

My biggest issue with the TTIP; thanks for calling it out.

[pas]

Then you should read up on it, because it's basically the least problematic part of TTIP. ( here's a comment I just wrote trying to explain why people are mistaken about the subject: https://news.ycombinator.com/item?id=11608281 )

[jakub_g]

And if someone thinks this is a virtual threat, google for "Philip Morris vs. (Australia|Uruguay)" (countries being sued for anti-tobacco regulations hurting business of PM)

[pas]

That's a frivolous suit. They are grasping at straws.

http://theconversation.com/big-tobacco-vs-australia-philip-m...

Yes, it's a virtual threat.

[Silhouette]

Unfortunately, that doesn't seem to be entirely clear. The case you refer to in Australia was apparently thrown out because of some dubious changes to the company ownership arrangements that appeared to have been made just for the purposes of bringing a lawsuit, when the change in cigarette packaging rules was already public knowledge by that time.

http://www.theguardian.com/australia-news/2015/dec/18/austra...

[pas]

Yes, they played an empty hand, and when their bluff was called they promptly lost.

[Hockenbrizzle]

Just out of curiosity, does anyone know Obama's stance on this particular part of the legislation? He was just in Hanover and was asked about this by the public, but avoided giving a clear answer. Are there any records of him explaining why he actually might think this is a good thing?

[pas]

Okay, first of all, that's bullshit.

ISDS (Investor-State Dispute Settlement) is a sane concept. The implementation might have problems (for example closed courtroom "trials"), but it's not about protecting profits. It's about protecting equality and fairness for all before the law, and in case of States, holding them accountable to make fair and egalitarian laws.

What's the typical example? A random Company invests in a country, sets up a nice subsidiary starts doing business, everything is legal. But the country (the State) sees that it's taking up the market, uh-oh,

a) better make a law against whatever they are doing, or b) better make a law against (that specific or all) foreign companies doing whatever.

Which one(s) is (are) problematic?

Also, the other thing, fairness, comes in when a State wants to buy out a company but doesn't want to pay market price. Basically eminent domain without unfair compensation.

The same goes for ending tax breaks (or other investment incentives) sooner than promised. Because that's a breach of agreement.

Your link (publicfinanceinternational.org) refers an article from globaljustice.co.uk which has a list of problematic ISDS arbitration cases, that's the real data, anything else is just fluff. ( http://www.globaljustice.org.uk/sites/default/files/files/re... )

Let's look at the big bully US agribusiness vs Mexico (the rules of arbitration are set by NAFTA).

http://www.state.gov/s/l/c42198.htm

http://www.italaw.com/sites/default/files/case-documents/ita... the concrete "award" (findings of the tribunal).

It turns out that these tribunals are looking at laws and apply them. Like courts. And they are much likely more objective than any court in either host country. And then that award was reviewed by the courts of a place chosen by the parties (the Ontario court system).

Seems quite like due process to me.

I'm not saying all of the cases are jolly good and there was absolutely no problematic awards, but just looking at the Vodafone vs India one, the "retrospective capital gains tax" hits us and makes you wonder, what the fuck were the Indians thinking, first rule of how to legislate. ( https://en.wikipedia.org/wiki/Legal_certainty )

But enough on ISDS. There are big problems with TTIP, but not this one.

[mikemoka]

"A random Company invests in a country, sets up a nice subsidiary starts doing business, everything is legal. But the country (the State) sees that it's taking up the market, uh-oh,"

when this has been done and when it has happened not in the interest of public well being? on the other hand here is an example of what some corporations actually do in the present https://youtu.be/6UsHHOCH4q8?t=6m54s

[pas]

Yes, I watch LWT, I'm familiar with the Philip Morris' crazy carnival through arbitration tribunals, but they are just grasping at straws.

http://theconversation.com/big-tobacco-vs-australia-philip-m...

The Uruguay v Philip Morris is the same, they claim that they have a right to use their trademark on packages. Might be true, the tribunal will find out. Still Uruguay can still ban tobacco altogether.

This is the equivalent of a frivolous lawsuit. It's part of the system, and it's okay. It gives transparency to the whole big companies (investors) and even bigger organizations (states) interactions, and tries to keep things equal and fair, all in all objective and unbiased.

Eventually Philip Morris will lose. (Though there might not be a loser-pays scheme in force for this case, but in general it's up to the treaty to establish the rules of arbitration, plus usually the tribunal itself has such powers, but in the future more and more cases will follow the UNCITRAL model, which do require the loser to pay for the costs of litigation.

https://books.google.com/books?id=h1H8Er1Y8X8C&pg=PA108&lpg=...

)

[Silhouette]

This is an interesting article I remembered from a few months ago about the analogous provisions in a similar international trade deal, the Trans-Pacific Partnership. The legal experts commenting there don't seem to share your optimistic view of how these kinds of laws work in practice, so unless all of the issues they raise have been differently addressed in the TTIP wording, it appears there is cause for concern.

http://www.theguardian.com/business/2015/nov/10/tpps-clauses...

[pas]

Mr Kahale might be an expert, but that doesn't mean he is not biased toward his clients.

After all, the scope definition clause was a futile attempt from the beginning, since any law can be dressed up as environmental or "deemed appropriate" by the State. I don't really trust lawmakers on this, (nor corporations not to abuse these treaties as yet another venue to argue their bullshit or righteous grievance), let's a 3rd party decide this.

Because in case of Germany vs Vattenfall, when Germany was phasing out nuclear power, they should have calculated with the costs of this. You apply for a very costly permit, and boom, that sector has just been banned by the State, because irrational fear.

The same goes for the MFN (most favorable nation) clause. A state shouldn't pick and choose how it treats foreign companies as long as they act according to its laws, so it should place the same economic incentives and burdens on them.

Strange, for Mr Kahale or for the Guardian to not mention in November that the Award was Annuled in October in the Occidental vs Ecuador case.

Again, the concept is sane. Why require a fixed courtroom, when the important point is objectivity, and that parties select judges they trust who then in turn select the chair of the tribunal, so someone both parties' experts trust.

They usually do rely on (that is cite in similar cases, and usually similar cases reach similar outcomes) precedent, but since this is not a "common law" but a "civil law" (codified law) system, precedents are not binding. And there is a process for appeal, as seen in the Ecuador case. And yes, judges judge based on their opinion (interpretation) of the law. News at 11 :|

> The arbitrators can also be severely conflicted, says Kahale, because they may act as a judge one day and as a lawyer for a party the next.

Then don't pick them as your selected champion/judge. Duh. That's how Kahale is making his money, he runs a law firm representing countires. So they are usually on the States' side, maybe even sometimes lending a lawyer as a judge for a country.

> .. nor are they required to act like courts

Umm, they do? The treaty specifies the details, but most arbitration providers have very specific rules of procedure, just like courts.

tl;dr arbitration tribunals ain't saints, but they seem much more sane, egalitarian and fair, than a host country's high court (which are usually ideologically biased either traditionally or after the current regime stuffs it full of its trustees)

[Silhouette]

Mr Kahale might be an expert, but that doesn't mean he is not biased toward his clients.

Sorry, I don't follow. He's an expert lawyer in the field, his firm often represents governments in these actions, and he's saying that the wording doesn't protect those governments as much as they think it does and providing a very simple and clear reason for his position. Whether or not he might be biased in a courtroom or tribunal does not affect the validity of his argument about the wording.

You apply for a very costly permit, and boom, that sector has just been banned by the State, because irrational fear.

Well, that "irrational fear" followed the incident at Fukushima. That was the worst nuclear disaster since Chernobyl, and although it's too early to know the true cost in human life, most estimates expect several thousand people to die early because of evacuation conditions, cancers caused by radiation exposure, and so on. Evidently some level of concern about the safety of nuclear reactors is justified.

The question is where to draw the line. If in fact the Vattenfall reactors in Germany were not vulnerable to any similar problems and they really were closed down suddenly despite posing no risk, it seems fair that they should receive some reasonable level of compensation. On the other hand, in a case like the cigarette firms we talked about before, imposing laws that benefit human health at the expense of the business because what the business does is inherently harmful and they know it, I have little sympathy if the business loses out even if it was a direct result of the government's actions.

One could reasonably debate the forum in which such determinations might be made. However, the idea that an entire case with potentially billions of pounds of taxpayers' money hanging in the balance could sensibly be decided by just three people, behind closed doors, without any means of appeal, seems absurd to me.

tl;dr arbitration tribunals ain't saints, but they seem much more sane, egalitarian and fair, than a host country's high court (which are usually ideologically biased either traditionally or after the current regime stuffs it full of its trustees)

I see little evidence of that here in the UK. The British government can and does lose big court cases all the time, and our judiciary is fiercely defensive of its independence from the government of the day. If a foreign investor isn't willing to trust the legal system of a host nation to act reasonably, perhaps they should be investing elsewhere anyway, because there are plenty of other ways to lose huge amounts of money in that case without any hostility from the host government itself.

[pas]

He's selling the line that it doesn't protect governments as if it were a bad thing. It protects the companies in those states against the other governments for example, which is a good thing.

More people die because of coal/oil/gas power plants than because of nuclear ones. So now, instead of inspecting their own plants, which they have the best position to do so, they're relying on who knows what form of power generation.

It's understandable that you feel that by submitting the UK to an unknown even higher court you take a risk, but a lot of people on the other hand feel that it's going to be a boon to restrict the actions (and especially future actions) of their State. And the documents are public (and there is a push to make video recordings and even live streaming of the discussions/arguments), and in English, much better than when a company has to deal with let's say the Hungarian courts.

And exactly, because a lot of investment is not making its way to such countries, why the whole treaty is negotiated.

[Silhouette]

It's understandable that you feel that by submitting the UK to an unknown even higher court you take a risk, but a lot of people on the other hand feel that it's going to be a boon to restrict the actions (and especially future actions) of their State.

The European Commission conducted possibly the largest public consultation in history and found almost unanimous opposition either to ISDS or to TTIP in its entirety, except among some organisations representing businesses, and even there the response was mixed. So who are the "alot of people" you're talking about here? They don't appear to be ordinary EU citizens, nor lawyers, trade unions, academics...

http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_15...

http://www.globaljustice.org.uk/news/2015/jan/13/new-levels-...