Written by Jeanine Molloff   

Jeanine Molloff
ISDS Series (part 1)

Title : Liquid Plutonium destined for your kid's cereal—courtesy of NAFTA/TPP-TTIP/ISDS?

...”It wouldn't matter if a substance was liquid plutonium destined for a child's breakfast cereal. If the government bans a product and a US based company loses profits, the company can claim damages under NAFTA.”
(Source : http://www.huffingtonpost.com/2015/05/14/trade-deal-food-safety- n7287622.html )

This bone chilling response came from a corporate attorney working for the Ethyl Corporation, during a 1997 NAFTA challenge against the Canadian government. Canada had outlawed the gasoline additive MMT over possible health concerns. Ethyl was the U.S. corporation that produced the gasoline additive MMT which had been banned in Canada. Ethyl corporation brought its objections to the international arbitration panel under the Investor-State Dispute Settlement system, aka ISDS; to claim damages for lost profits, under NAFTA. Ethyl argued that the law banning this additive was ...'tantamount to expropriation.' (Source : http://www.huffingtonpost.com/2015/05/14/trade-deal-food-safety-_n_7287622.html)

Under NAFTA--Ethyl won and consumers lost. The Canadian government had to transfer 13 million from taxpayers-- to Ethyl. The Canadian people's right to self-govern was nullified by this corporate pseudo-legal theft. Concerns over possible health damage or even the right of self-governance were sacrificed to the gods of corporate profits. Subsequently the callous arrogance of the 'liquid plutonium in Junior's Captain Crunch' commentary, merely matched the arrogance of this new class of 'corporate royalists'--namely the arbitrators of the Investor-State Dispute Settlement industry, aka—ISDS.

ISDS—the core weapon of mass destruction in BIT's/MIT's/IIT's, including TPP/TTIP...

The Investor-State Dispute Settlement contrivance (or ISDS), is the political 'wet-dream' of the 'judicial-industrial complex.' A Goliath by legal standards; ISDS is the extra-judicial glue which holds together a new, more lethal form of corporate feudalism. Corporations and corporate legal firms win, and the rest of us lose, as armies of 'arbitration' attorneys and appointed arbitrators create 'get out of jail free' cards for corporate criminals—wholesale.

What is ISDS?

ISDS or international investor arbitration is an alleged mediation tool between party signatories of any IIT. It was created by the granddaddy of all IIT's—namely NAFTA, under Bill Clinton. Chapter 11 of NAFTA empowers ISDS as the instrument to provide foreign investors standing for ...”legal certainty.” (Source : http://www.state.gov/s/l/c3439.htm )

Foreign investors, (read foreign corporations), demanded an end-run around the legitimate 'rule of law', in what they perceived as unstable nations. Apparently, democracies are considered 'unstable.'

These foreign corporations weren't satisfied with the gamble involved in any business investment—they demanded a 'stacked deck.' Thus, the semantic device dubbed 'legal certainty' was born, and with it—the international arbitration tribunal. No rights exist in these arbitrations tribunals, unless the tribunal says so—period. ISDS was devised to provide legal cover for massive corporate theft via the use of secretive arbitration tribunals—aka the 'legal mafia.' (Source : http://globalarbitrationreview.com/article/30863/taking-inner-mafia(7-11-2012).

ISDS thus became--the bastard child of NAFTA.

How ISDS works...

Three corporate attorneys are appointed to serve as de facto, judge, jury and executioner, in a one-sided lawsuit, of any unfortunate nation daring to challenge corporate rule, through actual self-government as an independent state.

Under ISDS, international corporations have been granted unlimited rights to sue any government over alleged profits loss, whether real or imagined. Corporations may also sue for any argued future profits loss. Corporations have the power to claim unlimited monetary damages, and taxpayers foot the bill.

The arbitrators themselves are unelected and unknown to the general public. All proceedings of the 'arbitration' are secret. No right of appeal exists for any nation-state. Payment arrangements to the arbitrators are also withheld from the public.

Any area of law is subject to the ISDS panel. The most recent IIT, namely the US Trans-Pacific Pact or TPP has been the subject of intense fighting between President Obama and his corporate allies and the political far left over the surrender of national sovereignty to the arbitration lawyers.

Leaked draft texts of the TPP describe 'investor protections' which further incentivize increased offshoring of jobs with undisclosed 'benefits.' Regulation of finance capital, such as banning derivatives, currency manipulation and other ..”financial weapons of mass destruction” would be prohibited. U.S. Property rights to public natural resources are struck down in favor of vaguely worded 'international standards,' which would be determined by the unelected international tribunal in secret deliberations, never meant to see the light of day.

Though Obama swears concerns over labor, environmental and human rights, have been protected with language in the TPP mandating elevated levels of protection to match US standards; the very nature of ISDS renders such oaths—impotent.
(Source : https://wwwwhitehouse.gov/blog/2015/03/04/see-what-most-progressive-trade-agreement-history-looks).

Any area of law, whether environmental, public health, food safety, water rights, currency standards, financial regulations or even civil liberties is fair game to be sued. This license to push frivolous lawsuits against governments, also extends to statutes deemed unfavorable to corporate—including those written in the trade agreement itself. Subsequently, alleged protections in BIT's or MIT's like TPP have the value of toilet paper.

'Shock and Awe' economic/legal globalization is here.

(Source : http://www.opendemocracy.net/cecilia-olivet-pia-eberhardt/profiting-from-injustice-challenging-investment-arbitration-industry).


EU think tanks...expose ISDS as fraud....

The Corporate Europe Observatory and the Transnational Institute published a major study in 2012, titled “Profiting from Injustice: how law firms, arbitrators and financiers are fuelling an investment arbitration boom”. The study explains how all of these trade 'agreements'; have at their core, this Investment Arbitration clause which replaces legitimate courts with a panel of three self-appointed investment arbitrators granted the undemocratic--power of kings.

...”Corporations have been granted the exclusive right to sue states (states cannot sue corporations) at secretive international tribunals for action deemed to unfairly affect investor profits...”
(Source : http://www.opendemocracy.net/cecilia-olivet-pia-eberhardt/profiting-from-injustice-challenging-investment-arbitration-industry).

Since the arbitration tribunal attorneys come from the ranks of the legal corporate elite; this process is more a Dark Ages redux of the Court Star Chamber—than the actual 'rule of law.'

In fact, the arbitrators themselves are dubbed the ...'Legal Mafia.'
(Source : http://www.opendemocracy.net/cecilia-olivet-pia-eberhardt/profiting-from-injustice-challenging-investment-arbitration-industry).

Challenging ISDS...facts don't match arbitrator's claims...

Since WikiLeaks dumped TPP documents online; there has been a backlash against this 'judicial-industrial complex.' Again, the 'Profiting from Injustice' study published 11 key findings explaining how the arbitration industry is instigating and growing injustice worldwide with the ISDS process. Below are the 11 key findings:

1.).."The number of investment arbitration cases, as well as the sum of money involved, has surged in the last two decades"...

2.)..."The boom in arbitration has created bonanza profits for investment lawyers paid for by taxpayers"...

3.)..."The international investment arbitration industry is dominated by a small and tight-knit hemisphere-based community of law firms and elite arbitrators"...

4.)..."Arbitrators tend to defend private investor rights above public interest, revealing an inherent pro-corporate bias"...

5.)..."Law firms with specialized arbitration departments seek out every opportunity to sue countries--encouraging lawsuits against governments in crisis"...

6.)..."Investment lawyers, including elite arbitrators, have aggressively promoted investment arbitration as a necessary condition for the attraction of foreign investment, despite evidence to the contrary"...

7.)..."Investment lawyers have encouraged governments to sign investment treaties using language that maximises possibilities for litigation. They have then used these vaguely worded treaty provisions to increase the number of cases"...

8.)..."Arbitration law firms as well as elite arbitrators have used positions of influence to actively lobby against any reforms to the international investment regime, notably in the US and the EU"...

9.)..."There is a revolving door between investment lawyers and government policy-makers that bolsters an unjust investment regime"...

10.)..."Investment lawyers have a firm grip on academic discourse on investment law and arbitration, producing a large part of the academic writings on the subject"...

11.)..."The investment arbitration system is becoming increasingly integrated with the speculative financial world, with investment funds helping fund investor-state disputes in exchange for a share in any granted award or settlement."
(Source : http://corporateeurope.org/sites/default/files/publications/profitingHYPERLINK "http://corporateeurope.org/sites/default/files/publications/profiting-from-injustice.pdf"-from-injustice.pdf)

More about ISDS and the legal mafia—the ultimate con....

It's called the 'legal mafia' for good reason. Even the alleged 'guardians' of this dubious system practically pinch themselves at the utter stupidity or complicity of nations signing on to this con. In the words of Juan Fernandez-Armesto, an arbitrator from Spain:

...."When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all [...] Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament." (Source : Perry, Sebastian (2012) STOCKHOLM: Arbitrator and counsel: the double-hat syndrome, Global Arbitration Review, Volume 7 - Issue 2, 15 March,
http://www.globalarbitrationreview.com/journal/article/30399/stockholm-arbitrator-counsel-double-hat-syndrome [7-11-2012].

The mockery of justice grows even more blatant as one arbitrator jokes about where the next victim will come from. To quote Peter Snyder, CEO of New Media Strategies:

..."It's basically venture law these days. So you have investors coming in and trying to say 'Hey, who can we sue next? I'm gonna put up five million dollars and let's do some discovery and see where we go from there and really try to reap a windfall'."
(Source : http://www.instituteforlegalreform.com/media/video/how-the-practice-of-law-is-being-commercialized[26-04-2012].)

ISDS has become a major money-maker for corporate law firms and third-party speculators. In fact, third-party funding of these investment disputes under ISDS has become routine. To quote another 'legal arbitrator' :

...”The whole theory is to take the legal system and turn it into a stock market.”
(Source : Alden, William (2012) Looking to Make a Profit on Lawsuits, Firms Invest in Them, New York Times, 30 April.)

Obama's many lies of omission on ISDS...

President Obama has a Pinocchio problem. His latest whopper is the specious claim that the TPP (and by default--ISDS); will not usurp our national sovereignty. Obama claims further that the TPP/ISDS will not be able to reverse gains in health, labor rights, environmental concerns or general civil liberties.
Source :http://www.salon.com/2015/05/12/the_10_biggest_lies_youve_been_told_about_the_trans_pacific_partnership/

President Obama claimed that....

..." critics warn that parts of this deal would undermine American regulation -- food safety, worker safety, even financial regulations. They’re making this stuff up. This is just not true. No trade agreement is going to force us to change our laws..(Source :"http://wwwHYPERLINK "http://www.realclearpolitics.com/video/2015/05/08/obama_democratic_critics_of_free_trade_policy_are_wrong.html".realclearpolitics.com/video/2015/05/08/obama_democratic_critics_of_free_trade_policy_are_wrong.html)

Well, President Pinnochio loves his half-truths. While the ISDS procedure doesn't directly force countries to change their laws; it does create a litigious environment where any government entity will be drained of taxpayer funds through unlimited damages paid to international corporations via the ISDS 'kangaroo court'. In essence, democratic rule of law becomes too expensive to maintain.

Even White House blogger Jeff Ziest had to chime in from the peanut gallery. Ziest claimed that ISDS ...”does not and cannot REQUIRE countries to change any law or regulation”.
(Source : https://www.whitehouse.gov/blog/2015/02/26/investor-state-dispute-settlement-isds-question-and-answers)

Ziest is correct as far as it goes. While ISDS arbitrators cannor REQUIRE ...”countries to change any law or regulation”; ISDS also fails to FORBID such corporate interference with any sovereign nation's rights to decide its own fate. Like many similar IIT's; the 'devil is in the details.' Under ISDS, even allegations of corporate profits loss, minus any actual proof, serves as grounds to rob the public coffers blind.

It never ceases to amaze how these attorneys and bureaucrats push agreements they would never sign for themselves. Mr. Ziest and President Obama are borrowing their bureaucratic stylings from the Bill Clinton school of legal double-talk—using the same moral underpinnings as arguing the ...”meaning of the word 'is' is.”

Obama lied further in another White House Fact Sheet, guaranteeing that ...

...”through the Trans-Pacific Partnership we are renegotiating NAFTA and instituting stronger, fully enforceable labor and environmental standards. These high standards will not only bring hundreds of millions of people under enforceable labor standards and protect endangered wildlife in one of the fastest growing regions of the world—they will also help level the playing field for workers and businesses here at home by ensuring our trade partners are playing by the rules.” (Source : https://www.whitehouse.gov/issues/economy/trade/)

That is, until corporate attorneys sue for projected 'future profits losses' under ISDS. I wonder if this applies to the guy talking about 'liquid plutonium' in your kid's cereal.

The crude fact remains, that the public will have to take the arbitration panel's word as truth, given the secretive nature of the latest US MIT—the TPP.

Still, this president couldn't resist another lie of omission. In response to allegations from US Senator Elizabeth Warren that Congress was being denied the right to read and review the TPP; the president smugly explained that members of Congress may...”walk over...and read the text of the agreement.” (Source : http://www.washingtonpost.com/blogs/plum-line/wp/2015/04/24/obama-escalates-push-back-against-elizabeth-warren-and-other-trade-deal-critics/)

What Obama conveniently neglected to mention is that members of Congress are prohibited by law, upon pain of criminal prosecution, from discussing any part of the TPP with the public. (Source : http://readersupportednews.org/opinion/2/277-75/29831-elizabeth-warren-sherrod-brown-letter-to-obama-on-the-dishonesty-of-tpp?)

Oxford professor calls out ISDS as 'post-law' not 'rule of law'...

Oxford University Professor Emeritus, Colin Crouch illuminates the real motive behind TTIP's (and by relation the US TPP), sole use of the ISDS corporate arbitration process, and subsequently contradicts Obama's ludicrous ISDS claims. According to Crouch:

..."Most tariff barriers have already been negotiated away in various global agreements. What remain are the so-called non-tariff barriers. These extend from rules that are clearly intended solely to keep international competitors out of domestic markets, to regulations seriously designed to protect health, labour rights and various concepts of public and collective goods. It is over these latter issues that alarm bells have been ringing." (source : http://www.ippr.org/juncture/democracy-at-a-ttiping-point-seizing-a-slim-chance-to-reassert-democratic-sovereignty-in-europe

Colin Crouch is an Emeritus Professor at the Warwick Business School, University of Oxford. His research specialties are as follows:

.."Structure of European Societies, Labour Market, Gender, Family, Economic Sociology, Neo-Institutional Analysis, Local Economic Development and Public Service Reform"
http://www.sociology.ox.ac.uk/academic-staff/colin-crouch.html

Crouch adds a very succinct point on ISDS, calling out the arbitration procedure as less a post-democracy action--than action which is 'post-law.'
..."TTIP proposes a procedure known as investor–state dispute settlement (ISDS). A key focus of controversy here has been that such procedures do not use normal law courts with established judges, but arbitration panels comprised solely of corporate lawyers – people who earn most of their money working for corporations. Indeed, this is not so much post-democracy, as post-law."
http://www.ippr.org/juncture/democracy-at-a-ttiping-point-seizing-a-slim-chance-to-reassert-democratic-sovereignty-in-europe

To those who doubt Professor Crouch's position; remember--he wrote the book. He titled it--Post Democracy. http://www.amazon.com/Post-Democracy-Colin-Crouch/dp/0745633153

UN expert says ISDS violates international human rights law..

Alfred de Zayas is the UN's Independent Expert on the idea of a democratic and equitable international order, focusing on human rights. He has examined the secretive and post-law nature of bilateral and multilateral free trade agreements, through a human rights lens.

De Zayas challenges the predatory nature of ISDS which allows corporations the right to ransack public coffers via frivolous lawsuits, challenging domestic laws if the corporation feels future profits will suffer. De Zayas further attacks the corporate attorneys who routinely switch sides as plaintiffs, defendants and/or arbitrators, on obvious conflict of interest charges.

ISDS clear lack of accountability and transparency violates international human rights law under article 14 of the ICCPR, which mandates that lawsuits are adjudicated by independent tribunals.

He further argues that the parallel system ISDS has maintained, which remains exempt from democratic scrutiny or right of appeal, is contrary to any legitimate ‘rule of law.’

Finally, de Zayas cites the UN Charter, which clearly states that free trade or investment agreements, (including ISDS cases) must honor national sovereignty and human rights. To quote de Zayas:

..."Pursuant to article 103 of the Charter provisions of free trade and investment agreements, as well as decisions of ISDS arbitrators must conform with the UN Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise State sovereignty and the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction. Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international order public." - Source : http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15883HYPERLINK "http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15883&LangID=E"&HYPERLINK "http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15883&LangID=E"LangID=E#sthash.Fiwx0Ook.dpuf

Congressman Alan Grayson calls out ISDS as 'justice for sale'...

US Congressman Alan Grayson has termed this conflict of interest more succinctly as he explained…

..."they (TPP international tribunal/ISDS), replace our five step established court systems for claims against the government with an alternative system that is wired for the benefit of multinational corporations."
..."TPP establishes...procedures that are essentially abrogating our democracy."
...”it (ISDS)..justice for sale.”
(Source : phone interview 06/21/13)
Conclusion..
.
These 'economic royalists' and their invading armies of corporate attorneys would have the rest of us passively accept this 'political Stockholm Syndrome' as they aggressively dismantle the very core of democracy itself. What these corporate royalists and their attorney enablers lack in terms of a 'humanity chip' is irrelevant.

Since the beginning of any democratic governance, from Magna Carta, the US Bill of Rights and the Universal Declaration of Human Rights--one simple truth has emerged. We have the right to self-govern. Furthermore, 'rule of law' must remain unbiased, granting no privilege to the rich and powerful.

ISDS represents a corrupt transition from 'rule of law' to 'post-law' rule.

The corporate attorneys and legislators who have turned a blind eye on justice, in favor of oligarchy, must be held criminally accountable. Rule of law is more than empty words on paper; it must represent justice and fairness. Though previous 'laws' granted legal cover for crimes such as slavery and child abuse; these laws were overthrown and recognized as crimes against humanity. ISDS in its present post-law form--constitutesa crime against humanity.

Finally, no President, Prime Minister, Legislature, Parliament or Court; (whether by contractual language, trade treaty or national security concerns)--possesses the LEGITIMATE right to sign away or otherwise strip the people of their sovereign human rights. This includes, (but is not limited to); the right to self-govern through direct democracy. Period. To do otherwise constitutes high treason.

On a more personal note; I wonder how long Hillary will maintain her silent support of the arbitration tribunal, established under her husband's NAFTA treaty;-- if grand-daughter Charlotte mistakenly swallows some 'liquid plutonium' laced in her Captain Crunch, courtesy of the legal mafia?