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TPP deal: goodbye Australian sovereignty

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David Libra

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Joined: 27 Jul 2003
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PostPosted: Tue Jun 02, 2015 8:36 pm
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^ The trouble is that, once the deal is signed — and this will happen without community consultation — it may well be too late to be wound back without throwing the whole trade agreement in jeopardy. Certainly, I can't imagine either of the major parties having the courage to do that.

Our representatives need to be taking a firm line on IP and ISDS provisions now. Unfortunately, their public statements and leaked documents would seem to suggest that this isn't happening.

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David Libra

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Joined: 27 Jul 2003
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PostPosted: Tue Jul 28, 2015 4:10 pm
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Bernard Keane on the soon-to-be-passed TPP deal and the ISDS provisions contained within:

http://www.crikey.com.au/2015/07/28/abbotts-new-treaty-a-win-for-lawyers-corporations-but-a-loss-for-australia/

Quote:
Abbott’s new treaty a win for lawyers, corporations, but a loss for Australia
Bernard Keane


Australian sovereignty is at risk under the Trans-Pacific Partnership, with evidence showing a toxic combination of corporations, ambulance chaser law firms and biased arbitrators will be able to overrule our laws.

The investor-state dispute settlement mechanism that the Trans-Pacific Partnership will lock Australia into is biased in favour of transnational corporations, evidence shows, and costs governments millions even when they “win”.

ISDS clauses in trade and investment agreements allow transnational corporations to leapfrog domestic courts and sue governments in international arbitration forums for any policy change that they can argue has cost them money. The Productivity Commission devoted a long section of its most recent Trade and Assistance Review to identifying the serious problems relating to ISDS clauses and explaining the lack of evidence for them. The PC also explored the wide variety of problems around ISDS in a 2010 report.

With the government and its DFAT negotiators apparently hell-bent on signing Australia up to an agreement at the TPP negotiations in Hawaii this week, Labor passed a resolution at its weekend national conference to review all existing ISDS clauses and phase them out where it could.

Proponents of ISDS have insisted that the evidence of ISDS case from around the world shows that states win far more cases than corporations, so ISDS mechanisms represent minimal threat to policymaking. However, a breakdown of recently published data from the United Nations Conference on Trade and Development shows this is false. Corporation have won 60% of cases that have been determined on their merits — after cases that were struck out due to jurisdictional decisions are removed (most jurisdictional decisions are also won by corporations). Moreover, 26% of all cases are settled, frequently with a significant payout from the government involved to the claimant corporation. A subsidiary of Maersk, for example, won nearly US$1 billion in a settlement with the government of Algeria; a Dutch company settled for US$600 million with Venezuela.

Bear in mind that this is a one-way street for governments — they can never initiate litigation against transnationals under ISDS; they can only ever be sued. And even when they “win”, governments face significant litigation costs. A 2012 OECD survey found average costs of $8 million per case, but costs frequently range into the tens of millions (partly reflecting the costs of using international arbitration forums, which can cost between US$600,000 and US$1 million). Increasingly, large international law firms and litigation funding companies are offering to fund corporations’ ISDS cases in exchange for a share — between 20% and 50% — of the winnings, reflecting a more realistic estimation of the chances of success than the rosy outlook proffered by ISDS advocates.

And even if corporations fail in their claims, they don’t bear the cost of litigation for the governments they have, sometimes vexatiously, dragged into court. A 2014 study showed “the most frequent pattern is that tribunals order the claimant and respondent to carry an equal share of arbitration costs and their own legal costs, irrespective of which party lost or won.” And when tribunals do decide to reallocate costs, it’s usually in favour of corporations, not governments.

Then there are the arbitrators themselves. A 2012 study revealed that just 15 arbitrators had determined 55% of investment treaty disputes; three had been on boards of major international companies; one even boasted that sitting on a board had “helped me in my practice as an international arbitrator. It has always provided me with a vista on the business world that I would not have known as a lawyer.”

What benefits does ISDS actually provide? The PC demonstrated in its report in June that the presence or absence of ISDS mechanisms in a trade agreements has no impact on investment levels.

“ISDS protections are not necessary or sufficient to foster investment flows between developed countries with transparent and well-functioning legal systems. The majority of Australia’s IPPAs [Investment Protection and Promotion Agreements] have been largely negotiated with less developed countries with perceived higher levels of sovereign risk and questions over the reliability of their legal systems. Despite these agreements, the share of Australian investment abroad accounted for by IPPA countries represented just 6.4 per cent of Australia’s outward foreign investment stock in 2013 (excluding Hong Kong which has a highly developed, English-based legal system). While this share has increased over the decade, it is not clear whether the presence of ISDS materially influenced the relative growth or whether it was the result of broader factors relating to commercial opportunity.”

With so many costs and no benefits, it is unclear exactly why DFAT and Andrew Robb are prepared to damage Australia’s national interests by embracing ISDS in the TPP, which because the US is a signatory would reverse the Howard government’s decision to exclude ISDS from the Australia-US Free Trade Agreement.

ISDS, like much of the rest of the TPP, is more like a power grab by powerful transnationals, facilitated by ideologically obsessive governments and cocktail-circuit diplomats — many of whom will go onto corporate careers and board memberships themselves — at the expense of democracy and good public policy.

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David Libra

I dare you to try


Joined: 27 Jul 2003
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PostPosted: Fri Nov 06, 2015 10:31 am
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stui magpie wrote:
Give me some evidence that these ISDS provisions are legitimately on the table and I'll get concerned. Until then you're behaving exactly as the authors of this fiction wanted you to behave. Manipulated perfectly.


Yeah, they were on the table all right. Sad

http://www.theguardian.com/business/2015/nov/06/andrew-robb-defends-tpp-after-full-release-of-trade-deal-document

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HAL 

Please don't shout at me - I can't help it.


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PostPosted: Fri Nov 06, 2015 10:32 am
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That may take a while.
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pietillidie 



Joined: 07 Jan 2005


PostPosted: Fri Nov 06, 2015 12:31 pm
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David wrote:
stui magpie wrote:
Give me some evidence that these ISDS provisions are legitimately on the table and I'll get concerned. Until then you're behaving exactly as the authors of this fiction wanted you to behave. Manipulated perfectly.


Yeah, they were on the table all right. Sad

http://www.theguardian.com/business/2015/nov/06/andrew-robb-defends-tpp-after-full-release-of-trade-deal-document

Ahem, Stui.

Can't tax the bastards, now can't even tell them to wear a condom.

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Tannin Capricorn

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PostPosted: Fri Nov 06, 2015 1:53 pm
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David was right, Stui was wrong. Next case please clerk.
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stui magpie Gemini

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PostPosted: Fri Nov 06, 2015 5:42 pm
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David wrote:
stui magpie wrote:
Give me some evidence that these ISDS provisions are legitimately on the table and I'll get concerned. Until then you're behaving exactly as the authors of this fiction wanted you to behave. Manipulated perfectly.


Yeah, they were on the table all right. Sad

http://www.theguardian.com/business/2015/nov/06/andrew-robb-defends-tpp-after-full-release-of-trade-deal-document


OK. So they turn out to have some provisions in there. The devil is in the detail, just because a clause gives another country the power to sue another government doesn't mean they win, it just provides an avenue for resolving issues. The USA has signed up, I hardly think they'd be handing over power to China to change US laws, so I'll just ignore the usual handwringers , agenda pushers and peanut gallery and wait for some informed assessment.

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Tannin Capricorn

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PostPosted: Fri Nov 06, 2015 7:48 pm
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Strewth, didn't you read the stuff David posted?
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PostPosted: Fri Nov 06, 2015 7:50 pm
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I lost my train of thought.
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Tannin Capricorn

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PostPosted: Fri Nov 06, 2015 7:52 pm
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http://www.theage.com.au/federal-politics/political-news/australia-could-be-sued-for-billions-by-foreign-companies-for-new-laws-under-tpp-20151106-gksbjx.html
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stui magpie Gemini

Prepare for the worst, hope for the best.


Joined: 03 May 2005
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PostPosted: Fri Nov 06, 2015 8:02 pm
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Tannin wrote:
Strewth, didn't you read the stuff David posted?


Of course i did.

i also read stuff on the ABC website and others.

Key point, all the signatories to the agreement are bound by the same stuff so it's not just Australia dropping it's drawers, bending over and bracing, it's a two way street in multiple directions.

Obama was the one who wanted this in apparently and do you really think he's going to open up the USA to copping it from Asia? I don't.

http://www.theage.com.au/world/barack-obama-in-final-transpacific-partnership-push-20151105-gks6yl


So because a couple of left wing IP lawyers want to get in the media, we should all panic? FMD. Rolling Eyes

As far as i can see, all the opposition comes from the usual suspects who have their own agendas so I'll ignore their histrionics and wait for some informed opinion.

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David Libra

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PostPosted: Fri Nov 06, 2015 10:29 pm
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The impression I've had is that US corporations have been driving this deal (via their sponsored representatives in congress) more than the US executive itself. But either way, Obama doesn't have much to worry about because the US is always going to win out in any trade agreement with middle powers; that's the way it goes. We can hope that our government lobbied effectively for the best possible deal for the Australian people, but we can also hope that pigs fly or that Labor grow a backbone. If this substantially affects our food production standards, medicine prices or taxation policies then we'll well and truly be up a certain creek without a certain implement.
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stui magpie Gemini

Prepare for the worst, hope for the best.


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PostPosted: Fri Nov 06, 2015 10:59 pm
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look at the countries who've signed it.

Free trade is a good thing for the economy, opens up export markets and encourages production and business, which creates jobs.

Australia can either be a part of the global marketplace and grow, or not.

I'm a fan of the tpp in principle. All the scaremongerers and agenda pushers get in early with the fact free scare tactics, I'll wait until we get some reasoned analysis before I applaud or panic.

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David Libra

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PostPosted: Fri Nov 06, 2015 11:36 pm
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Wouldn't it have been better if we'd had the opportunity to make up our own minds as voting citizens on whether to applaud/panic before the agreement was ratified? I don't mean to be too pessimistic about this, but as far as I can tell you can panic all you like now; it won't change anything. We basically just have to hope that this agreement is good for the country and not, say, a spectacular rogering, because there's not all that much we can do to change it now.
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pietillidie 



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PostPosted: Fri Nov 06, 2015 11:41 pm
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stui magpie wrote:
look at the countries who've signed it.

Free trade is a good thing for the economy, opens up export markets and encourages production and business, which creates jobs.

Australia can either be a part of the global marketplace and grow, or not.

I'm a fan of the tpp in principle. All the scaremongerers and agenda pushers get in early with the fact free scare tactics, I'll wait until we get some reasoned analysis before I applaud or panic.

I have no problem with free trade agreements like yourself, and I have no time for far-left critiques which ignore basic economics. And I agree the devil is in the details, but I think that was David's original concern; there were no details.

It is basic, texbook economics to posit that there is zero incentive for MNCs to concern themselves with the livability, salaries and environments of any country.

Also, it is a matter of basic public fact that MNCs damage environments, engage in massive political interference, avoid paying taxes, and expropriate land and other assets corruptly pretty much wherever and whenever possible.

So, you've got a basic textbook economic incentive, combined with a clear public record of damaging behaviour that is not in a country's interest. That's something even the most conservative individual should be uncomfortable with.

Your point about being shafted like everyone else is cold comfort when these bastards don't give a toss about quality of life in any country.

This stuff is like Clinton overturning the Glass-Steagall Act in 1999 to free up "financial innovation". The institutional reaction at the time poopooing criticism was much like yours—until it caused the GFC.

Waiting for more information as you've said is good policy. But, as I've argued many times in the past, some plain facts are on the table already; there's nothing anyone can add to them, and not acknowledging them is taking a position.

David's concerns are very basic risk management concerns. Textbook, recommended, mainstream concerns.

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