Opposition to the Trans Pacific Partnership (TPP) is likely to grow following the unauthorized disclosure of draft provisions that call into question the administration’s assessment of the deal.
Wikileaks on Thursday published the material, the Investment Chapter, to the working TPP. The documents detail how the much-maligned Investor State Dispute Settlement (ISDS) tribunal will be structured to provide multinational corporations tools to challenge signatory nations’ laws.
Although there have been prior leaks of sensitive TPP-related documents, these come at a critical juncture–with the veil of secrecy pierced as talks near completion, and the White House amid a pro-TPP lobbying offensive on Capitol Hill. Last week, two House Democrats opposed to the deal, somewhat playfully, said US Trade Representative Michael Froman was getting high on cannabis and making a “bullshit” case for the deal.
Lawmakers attempting to oversee the deliberations have been unable to access a draft of the accord—the so-called “composite bracketed text.”
“The TPP has developed in secret an unaccountable supranational court for multinationals to sue states,” Wikileaks founder Julian Assange said in a statement with the release.
“This system is a challenge to parliamentary and judicial sovereignty,” he added.
According to an analysis of the leaked chapter by Public Citizen’s Global Trade Watch, tens of thousands of foreign and US owned companies would be able to access ISDS courts under the TPP to challenge signatories’ rules and regulations.
The tribunals, which fall under the jurisdiction of the World Bank and the United Nations, would operate without transparency, and be staffed by private sector attorneys who would rotate between advocate and judge.
Although the purpose of ISDS courts is to provide safeguards for companies against improper property seizure and to guarantee that they aren’t discriminated against by host countries, they’ve increasingly been used to challenge laws.
In 2012 alone, there were sixty cases brought to ISDS by private companies against sovereign governments—the majority came from US businesses looking to skirt regulations in developing countries.
Under previous trade agreements, corporations have used these international courts to attack environmental, public health, and financial regulations and laws. Companies have been awarded more than $440 million from taxpayers under previous investor-state settlements associated with US free trade agreements.
They appear designed to have a chilling effect on regulation—particularly in countries that can ill-afford to lose expensive court battles.
The Obama administration has admitted that ISDS provisions in prior trade agreements were misguided and have been abused. In a January letter to Sen. Tammy Baldwin (D-Wisc.), USTR Froman claimed that TPP will contain measures “designed to prevent the kind of abuses of the investor-state dispute settlement that have happened under agreement negotiated by other countries.”
Froman called previous ISDS tribunals “more expansive” with “few (or none) of the extensive safeguards being proposed in TPP.”
These reassurances, however, came under attack after news broke of the leak of the documents, produced internally on Jan. 20.
“Contrary to claims from the Obama administration that the TPP’s investment chapter would somehow limit the uses and abuses of the controversial ISDS regime, much of the leaked text would replicate, often word-for-word, the terms found in past U.S. ISDS-enforced agreements,” said Public Citizen’s Lori Wallach and Ben Beachy in their analysis.
They added that some terms would, in fact, “widen the scope of domestic policies and government actions that could be challenged before extrajudicial tribunals, without offering meaningful new safeguards for those policies.”
Trade representatives with the US and Pacific nations including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam have been negotiating the details of TPP negotiations for more than five years now.
Lawmakers, who will have to approve any final agreement, have been upset about secretive nature of the negotiations. When they want access to information about talks, they’re typically shuffled into secret reading rooms, without staff or note-taking devices, to go over portions of country proposals only, under fear of prosecution should they disclose any details.
The overwhelming secrecy around the TPP negotiations has galvanized opposition groups wary of its likely adverse effects—not just on national sovereignty, but on domestic industries.
Sen. Sherrod Brown (D-Ohio) sarcastically told the New York Times that the deal would continue “the great American tradition of corporations writing trade agreements, sharing them with almost nobody, so often at the expense of consumers, public health and workers.”
With respect to the investor-state resolution provisions, he said that there’s “a huge pot of gold at the end of the rainbow for these companies.”
One of the top-ranking Democrats in the Senate, Chuck Schumer (D-N.Y.), called the new ISDS provisions “really troubling.”
“It seems to indicate that savvy, deep-pocketed foreign conglomerates could challenge a broad range of laws we pass at every level of government, such as made-in-America laws or anti-tobacco laws. I think people on both sides of the aisle will have trouble with this,” he told the paper.
Even if TPP were to be approved without commotion, there are questions on the extent to which details about the Investment chapter—and any part of the agreement—would come to the public’s attention. Orders on the first page of the document instruct that it is not to be declassified until “four years” after negotiations close.
