Talking Trade blog
Reprint: ISDA: A little bit of knowledge is a dangerous thing
Published 31 August 2016
This post is a reprint of a Talking Trade post first published March 2, 2015. Note that the final TPP ISDS provisions were slightly shorter (Chapter 9, p 19-54).
I was preparing to write a different blog post when I came across a news article that got me so fired up that I have switched topics for today.
There is an article in The Guardian that quotes Michael Moore, of the Public Health Association, at length. He argues that a provision in the upcoming Trans-Pacific Partnership (TPP) negotiations will wreck the Australian government’s ability to protect public health.
This provision, known as Investor-State Dispute Settlement (ISDS), has gotten an astonishing amount of airtime lately. Nearly all of the commentary around what ISDS does and what it does not do is, frankly, wrong.
So, let’s see if we can straighten out the record somewhat, using the misguided statements attributed to Mr. Moore, written by Gabrielle Chan, as our guideposts.
First, the article suggests that Australia’s efforts to change labeling laws to include clear provisions on country-of-origin could be undermined by the TPP. The Australian government wants to change the way it labels produce to help eliminate problems like a recent hepatitis A outbreak related to imported frozen berries. (We will skip over, for now, the issue of whether such labeling would, in fact, reduce the risks of hepatitis or the fact that better product testing might be a more sensible response to such a risk.)
The Australian government, like every government, has always had the right to regulate in the interest of public health, as well as animal and plant health. This right is enshrined in the multilateral trading system under the World Trade Organization (WTO) and has been carried through in every single preferential trade agreement since then. There is nothing in the TPP or any other trade agreement that will fundamentally undermine the government’s sovereign right to ensure the safety of its citizens.
No government would ever agree to an agreement that would abrogate this right either. Thus, the argument that somehow the TPP has forced governments like Australia to take decisions that violate their own rights to regulate simply does not make any sense. Government officials are just not that stupid.
Second, the TPP’s investor state dispute settlement (ISDS) clause does not give companies the right to sue governments over being given an “unfair advantage” as Mr. Moore claims. The ISDS provisions of this agreement run to over 60 pages and spell out, as specifically as possible, exactly what constitutes an example of government expropriation of rights under which a foreign investor could consider launching an ISDS suit.
The basic issue that ISDS is trying to address is the following. Governments sometimes seize property (expropriate) for the public interest. The clearest example is when the government decides to build a road through your shop. In many countries, the rules that govern what happens in this situation are murky. Investors may suddenly find their property seized without warning or without receiving fair compensation for their loss of the shop.
ISDS is designed to make the provisions around expropriation much more clear. A good clause explains in detail what sort of conditions must be in place when a government decides to act. Note that ISDS does not prevent the government from acting—if the road must be built through my shop, the government has the right to do so. Instead, the rules spell out how I am to be notified about this decision, how I will be compensated, and what I can do if I want to appeal what I think is an arbitrary decision or an unfair amount of compensation.
The reason why I, as a foreign investor, might want to use an outside arbitrator to resolve my potential dispute with the government is that I am not always confident that the court system in the other country will rule fairly on my dispute. Remember that the issue here is whether or not the government has followed the proper procedures. Not every judge in every country will be willing to find against its own government.
But what I cannot do as an investor is simply claim that I am losing revenue somehow because other products get an “unfair advantage.” ISDS does not say anything about making or losing money.
Globally, there are more than 3,000 different bilateral investment treaties (BITS) as well as hundreds of free trade agreements. Of these, more than 90 percent contain ISDS provisions. The total number of disputes using ISDS is amazingly small, particularly given the volume of foreign investment covered by this welter of treaties.
What makes this relatively small number of disputes even more impressive is that the earlier versions of ISDS were much broader than later versions. In other words, the earlier ISDS rules were quite expansive, allowing investors to use the arbitration system relatively easily. Yet, most businesses do not resort to an outside system but continue to use the domestic court procedures to resolve disputes.
In part this stems from a lack of certainty about how any given arbitration case will be resolved which adds an element of risk to a decision to sue. Plus, most investors would prefer to remain in their host country and recognize the chilling effect that suing the government tends to have on their business operations. Hence, few investors are likely to sue, even if their case would likely be ruled in their favor.
The case that has made ISDS internationally famous actually highlights the changes underway in newer ISDS provisions. Philip Morris sued the Australian government using a BIT between Hong Kong and Australia. The specific issue was Australia’s new regulations on packaging for cigarettes. Under the rules, it was not just that the cigarette manufacturers had to put graphic photos of damage done to smokers and others or carry large-size warnings about the dangers of smoking. Instead, the government required every carton, packet and even every cigarette, to look exactly identical to one another. Manufacturers were required to use exactly the same courier font, same colors, and same information on every single product.
As a result, it is not possible to tell one manufacturers product apart from another. For Philip Morris, this represented more than just a change in labeling. The company argued it would invalidate the intellectual property (IP) contained in their products—particularly the value of their brands and trademarks since consumers could no longer see at a glance which cigarette was which.
We can argue about whether the result is appropriate or not. The bottom line is that the BIT used by Philip Morris gave investors the right to sue over expropriation of intellectual property rights, as well as other kinds of rights.
Recent trade agreements have not been so expansive. Instead, deals like the TPP have much more narrowly defined the scope of potential lawsuits and many have explicitly set aside IP. This is the main reason why ISDS provisions have grown in length over time, as governments have tried to strike a more appropriate balance between their right to regulate and the right of investors to ensure that their investments are not unfairly seized.
Elizabeth Warren, an American senator, wrote an op-ed this week in the Washington Post that was also problematic. She argued that there is no point in including an ISDS provision in the TPP because the domestic court structure in countries like the United States, Japan and Australia can be used to resolve these sorts of disputes fairly.
There are two reasons to continue to push for ISDS in the TPP that Warren overlooks. First, although it might be true that the American or New Zealand court systems can handle investor disputes, not every TPP member is equally capable. The current TPP membership includes 12 countries at diverse levels of development and government capacity. For example, Mexico is rated 79 out of 99 by the World Justice Project Rule of Law ranking project. Vietnam is 65 on the same scale and Peru is 62.
Second, the TPP is also intended to expand further. Even if all current members are able to handle investment disputes, future members might be less able to do so. Adding in ISDS at a later date will likely be impossible.
Finally, once governments start to cut out ISDS from some agreements, it might be more difficult to include the provisions in other deals. Thus, if the United States (in particular) wants to include ISDS in a future trade or bilateral investment treaties (like the one currently under negotiation with China), it could be very problematic to have carved out the ISDS provision in the TPP.
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