The Transatlantic Trade & Investment Partnership and The Law

February 23, 2014
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In Part Two of his series on The Transatlantic Trade & Investment PartnershipHenry Vespa looked at how the TTIP can be seen as a conspiracy. Now he focusses on what the TTIP might mean in terms of international laws and governance…

The States and countries in Europe have established legal systems that are based on hundreds of years of development and fine-tuning. Principles of fairness and justice are inbuilt. Of course, the results are not always just – any system is prone to failure and cock up – but the foundations are generally sound. So, why on earth would we want to give an opt-out scenario to some of the world’s biggest, richest institutions (arguably those least vulnerable to abuse by the existing judicial structures)? And yet, that’s exactly what the TTIP is doing.

The TTIP. A fair deal you can trust? Unlikely…

Should a corporate investor feel that the way a particular country is being run is making their obscene profits no longer viable, under the treaty they can take that country to court for arbitration. And as I said earlier, that court is a commercial tribunal outside of any national justice system (but by whose decisions signatory nations have agreed to abide).

The decisions aren’t made by judges but high-placed corporate lawyers instead (hmmm… I wonder who they work for when they’re not ‘arbitrating’?) Oh, and by the way, the arbitration hearings are held in secret and there’s no right of appeal. If you think this is farfetched, here are a few examples.

During the recent (or on-going, depending on your personal and political viewpoint) worldwide financial crisis, Argentina tried to ease the burden on its citizens by freezing the price of energy and water. Sounds like the sort of thing a good government should do, right? The result was having to pay more than a billion dollars in damages to the poor international utility companies who had put the prices up in the first place.

A while back the Australian parliament decided that cigarettes should be sold in plain packets unadorned except for a blunt health warning about the dangers of smoking. Citing a treaty with similar provisions to the TTIP, global tobacco giant Philip Morris took the Aussie government to an offshore tribunal and claimed compensation for loss of intellectual property (and therefore profit).

In El Salvador, after endless campaigning and some bloodshed (the deaths of three of the campaigners) the government eventually agreed to refuse to sanction a gold mine which would have contaminated local water supplies. The Canadian company that owns and sought to exploit the land in question is now taking legal action against El Salvador, demanding US$315m in lost profits.

But Canada is on the receiving end too: U.S. pharma giant Eli Lilly had two of their patents revoked by the Canadian courts on the grounds that the cited benefits weren’t backed up by enough hard evidence. The Canadian government is now being sued for US$500m (and Eli Lilly is demanding that Canada change its patent legislation).

Now take a moment to contemplate the fact that the TTIP is the biggest trade agreement of its type to ever be negotiated, including the governments, citizens and legal systems of 29 countries – the ludicrous situations I’ve just mentioned are set to be just the tip of the iceberg.

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