Oral Submission to the New Zealand Foreign Affairs, Defence and Trade Committee at Parliament regarding the TPPA - ISDS Boom time in Arbitration

UNCTAD 2015. Recent Trends in IIAs and ISDS.

UNCTAD 2015. Recent Trends in IIAs and ISDS.

PDF original

I am a farmer’s daughter, married to a farmer’s son. A researcher with an agribusiness degree. This trade agreement is a fundamentally different beast from earlier trade agreements. But most Kiwi’s don’t know that.

A quick search on Stuff, NZ Herald and our RNZ is dismaying in its lack of well researched investigative journalism regarding the TPPA & ISDS – investor state dispute settlement. It’s a study of agnotology. We all know Professor Kelsey’s airtime is limited. Op-Eds that never see the light of day.

Our public radio continually sports International trade expert Charles Finny – but never once has NZR declared his interests as a corporate lobbyist with Saunders Unsworth.  Charles Finny tells us we are safe because ISDS tribunal decisions have historically required scientific “proof”. [1] This is too simple. Let’s talk about scientific ‘proof.’

Our regulatory bodies/ governments have a duty of care. Acting in the public interest often requires them to employ the precautionary principle (aka prudent avoidance), a critical tool in public policy-making. Establishing the toxicity or safety of chemicals or understanding the underlying causes in disease development is a slow and difficult process and takes much time and resources. How do we regulate amidst uncertain science when we require absolute proof?

I’m interested in chemicals and the increasing evidence that they profoundly harm us. Right now, Europe understands the economic cost of endocrine (hormone) disruptors to be above 1.2% of GDP [2] and growing – ruling on endocrine disruption would require use of the precautionary principle, because science is limited and it is difficult to finance independent studies. None of this fits in with the ISDS MO.

Gentleman, you must acknowledge that wide ranging health and environmental effects take years to understand – narrow ISDS scientific ‘proof’ fails on every level. But national discussion never looked at this. What else has not been covered thoroughly?

My neighbours would be shocked to understand that ISDS tribunals have rejected requests to defer to government rulings when made in good faith.

 My kid’s school teacher would be surprised to understand investor rights trump public interest rights. Because she hears from our media that there are provisions to ensure government’s ability to protect the environment and public health. She doesn’t know those provisions can be trumped by other agreement provisions that protect investor rights.  That’s TPPA 9:15.

Most young adults around me don’t know that ISDS Tribunals undermine democracy, public discussion and dissent. They’d be pissed off to learn that a big settlement payout and even agreements can be made that if discussed publicly, would have been different. They’d be grumpy to understand that because these tribunals are offshore – they can’t participate.

My grandparents would be saddened and dismayed to learn that our own judges and courts cannot arbitrate. They would think we are bonkers to choose a judicial system we have no control of.

ISDS arbitration mechanisms can undermine domestic public interest regulation. They are cloaked in secrecy and, public participation, when allowed, lacks key aspects of basic procedural fairness. This is obvious – because most ISDS arbitration ends up concerning health and environment. 70% of cases have been challenges to natural resource and environment policies. Of course they want protestors shut out. [3]

Policy makers in local government are concerned about the TPPA. They know local government regulations and by-laws are vulnerable. Frequently local councils are at the coalface of environmental and health based calamities – and frequently are early adopters to regulate to benefit local health & economies because they see the urgency of the situation. But their decisions can be overridden by a government anxious to reach a less costly settlement.

And ‘scientific proof’? Frequently decisions are made in councils while the science is still grey and follow the precautionary principle. In the public interest.

Local entrepreneurs that surround me in the Bay of Plenty would feel betrayed if they knew that this agreement is fundamentally discriminatory against locally owned New Zealand businesses, as only multinationals can sue for potential lost profits. This trade deal could stifle New Zealand innovation and competition.  Where’s the fair go.

Finny recently advised RNZ ‘In terms of ISDS we have had these provisions and agreements for 25-30 years, I haven’t seen a huge number of problems being faced by NZ on this.’

This comment is disingenuous. Right now is boom time for investment arbitration lawyers.

The last decade has seen a tripling of average claims per year. Corporations realise the benefit of suing governments. [4]

And yes, ISDS provisions were included in the P4 [5] and other agreements (ASEAN, China) but the provisions are less onerous than the US-style provisions under TPPA. Also those countries are far less litigious.

ISDS cases are expensive, the average cost ‘USD 8 million with costs exceeding USD 30 million in some cases.’ [6] Translate that to ‘paralysing.’

Australia may have escaped the Philip Morris catastrophe but it still had to stump up $50 mill in legal fees.

Canada has faced 36 ISDS claims from NAFTA investor lawsuits, more than any other developed country in the world, and since 2005 Canada has been hit by 70% of all NAFTA investor lawsuits.

Canada currently faces nine pending investor–state claims involving some highly sensitive regulatory matters. 5 of these cases concern big oil, fracking, pharmaceutical patents, renewable energies. Total penalties sought in just these five cases: about $2 billion. [7] Each of the three countries in NAFTA have faced rigorous ISDS lawsuits.

Exempting tobacco is nothing compared to all this stuff. And our tobacco ‘carve out’? It’s weak.[8]

Of course, in an investor state dispute, we will no longer recognise the Supreme Court as our highest court, it's superseded by ISDS. We always thought constitutional changes must be undertaken through a proper, transparent, democratic process. Most of us think our law courts are perfectly equipped to manage disputes with foreign investors. Due process is provided under our more transparent legislative and judicial systems.

Andrew Geddis notes, In New Zealand ‘When judges are appointed, they cease to act as lawyers. In fact, they can never practice as lawyers again, precisely to remove any possible conflict between their lawyerly role as advocates for particular clients and their judicial obligations.’

ISDS tribunal members appointed to adjudicate disputes frequently have a commercial law background. They lack public policy experience. Your adjudicator could be a corporate lawyer whose next gig could be with Pfizer or Coca Cola Amatil.

And precedent? Here I quote Andrew Geddis: There is no concept of "precedent" in ISDS arbitration. Each case is considered sui generis - there's no hierarchy of tribunals, no appeal mechanisms, no doctrine of stare decisis. These are not "court" proceedings, but arbitrations.

ISDS agreement ignores NZ precedent, and undermines the jurisdiction of our own courts. And because this is ‘arbitration’ our government can’t appeal once the corporate lawyers have handed down their decision.

Not forgetting that under ISDS our governments can’t sue these corporations. How convenient.

This is a barbaric agreement – it degrades our ability to protect environment, health, equity and human rights.

Why don’t Kiwi’s know all this? Pragmatically, NZ media is owned by offshore financial industry.  The financial sector welcomes this agreement and can neatly use the TPPA via ISDS to challenge new financial regulation. That’s why my friends, neighbours, community don’t know the full story. Another conflict of interest.

You will write a report to the House of Representatives. Whoop whoop.

The treaty has been negotiated and signed by our National stacked Cabinet. National and Labour have blocked previous attempts to bring treaty agreements under Parliamentary consideration. This whole process is a farce.

It’s boom time in corporate arbitration & we’re signing up to an agreement with the most litigious country in the world.  We are lowering the barriers that protect our health and our natural resources - our most precious possessions. Please do not proceed with the TPPA.

 

REFERENCES:

Much of the information sourced for this talk is from:  Kathleen Cooper, Kyra Bell-Pasht, Ramani Nadarajah, and Theresa McClenaghan, Seeking a Regulatory Chill in Canada: The Dow Agrosciences NAFTA Chapter 11 Challenge to the Quebec Pesticides Management Code, 7 Golden Gate U. Envtl. L.J. 5 (2014).

I have previously detailed much of the above information here and here on this blog. 

[1] (a) Seeking a Regulatory Chill in Canada: The Dow Agrosciences NAFTA Chapter 11 Challenge to the Quebec Pesticides Management Code  Pp.4-6; 29;34-43 (Note page number lower RHS)

(b) The impact of the Trans-Pacific Partnership on health: Why an independent, comprehensive health impact assessment is crucial prior to signing. J Freeman, G Keating, R Jones, G Laking, M Head, A Macmillan

[2] Endocrine disruption.

(a) Estimating Burden and Disease Costs of Exposure to Endocrine-Disrupting Chemicals in the European Union  $209 billion, corresponding to 1.23% of EU gross domestic product

(b) HEALTH COSTS IN THE EUROPEAN UNION HOW MUCH IS RELATED TO EDCS?       €636 – 637.1 billion per year in the EU

[3] As the OPEN LETTER FROM LAWYERSTO THE NEGOTIATORS OF THE TRANS-PACIFIC PARTNERSHIP URGING THE REJECTION OF INVESTOR-STATE DISPUTE SETTLEMENT (8 May 2012), advised, 'Over $675 million has been paid out under U.S. FTAs and BITs alone, 70% percent of which pertained to challenges to governments’ natural resource and environmental policies, not to traditional expropriations.' 

[4] BOOM TIME. Increasing costs of ISDS.

While the USA is the most litigious country, Investors from the EU Member State are the largest users of ISDS. ISDS was originally intended create a favourable climate for investors in potentially volatile countries.  However the bulk of claims are held within the West.

Feb 2015. Recent Trends in IIAs and ISDS. UNCTAD

Updated: A transatlantic corporate bill of rights - investor privileges in EU-US trade deal threaten public interest.

Legalised Profiteering: How corporate lawyers are fuelling an investment arbitration boom. Corporate Europe Observatory.

Investor-to-State Dispute Settlement (ISDS): Some facts and figures. European Commission. http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153046.pdf

Keystone Lawsuit Illustrates Enviros’ Big Problem With TPP. Moyers & Company.

The US-EU trade treaty that could let corporations sue governments. Al Jazeera May 2015. D Mackey.

[5] 'The P4 agreement doesn’t cover investments, with the exception of investment relating to some services. These are set out in Chapter 12 of the Agreement - Trade in Services [PDF, 157 KB]'. 

[6] ROUNDTABLE ON FREEDOM OF INVESTMENT 15 - 5 December 2011 – Paris, France

Summary of Roundtable discussions by the OECD Secretariat.  

[7] Battered by increasingly aggressive NAFTA lawsuits, will Canada fare any better under TPP? Scott Sinclair, Nov 10 2015. Citizen Monitor. 

[8] The Trans Pacific Partnership Treaty and tobacco: no cause to celebrate. Posted on December 21, 2015.  Louise Delany, Senior Lecturer, Assoc Prof George Thomson*    

‘At best, the partial ISDS exclusion is a step towards recognising that more extreme forms of investor protection conflict with public health. But the fundamental inconsistencies between agreements such as the TPP and public health are left untouched. The implications of the TTP as a whole may, arguably, strengthen the position of non-health interests in New Zealand. This may make it more difficult to progress future measures for both tobacco control and public health in general.’

ADDITIONAL NOTES - RISK & PROBABILITY: 

The following image was recently tweeted by Nassim Nicholas Taleb with the comments:

'The Precautionary Principle Simplified: Started rewriting.'

'What every risk taker knows but academics in decision theory/econ don't: space&time probabilities are NOT the same.'