Category Archives: Trade Agreements and ISDS

Trade Agreements, Treaties and Investor State Dispute Settlement

TPP dead after six years of campaigning

AFTINET have declared the TPP dead with Trump dealing the final blow, some of their comments follow:

Here in Australia, thousands of people mobilised against the unfair deal, participating in online actions, attending rallies,  public meetings, and influencing politicians. Citizens in almost every TPP country did the same and there was a huge groundswell of opposition to the deal worldwide.

We will continue to advocate for fair trade based on the principles of human rights, labour rights and environmental sustainability, and which does not undermine the ability of governments to regulate in the public interest.

Press Release, external link, TPP death result of six years of community campaigns

Unfortunately similar risks crop up in draft corporate driven agreements and recent governments have accepted problematic clauses in other agreements

AFTINET Trade Justice Dinner, 17th May, 6pm, The Hellenic Restaurant, Sydney

An evening of delicious Greek food, entertaining speakers and great company at the annual fundraising dinner.

All proceeds will support AFTINET’s trade justice campaigns on the TPP and other trade deals.

Special guest Speaker:

Kelvin Thomson MP,  the Federal Member for Wills and the Deputy Chair of the Joint Standing Committee on Treaties (JSCOT)
You need to book, external link

Hear “Doctors without borders” speak on Medicines at AFTINET Public Forum, Sydney, 12.30 Wed 20th April 2016

Public Forum – Will the TPP survive the Australian and US elections?

12.30-2pm Wed April 20
Macquarie Room,
NSW Parliament House
Macquarie Street, Sydney

Speakers include:

Dr Patricia Ranald, AFTINET: The TPP and the Australian Election

US Public Citizen: TPP, Presidential Race and US Congress (by video)

Dr Jim Stanford, McMaster University, Canada:  Jobs and Workers’ Rights

Jon Edwards, Doctors without Borders (MSF): Medicines

Sarah Agar, CHOICE: Food Labelling and Product Standards

Limited places – please RSVP by April 19 to

The TPP trade deal between Australia, the US and 10 other Pacific Rim countries is being reviewed by a Parliamentary committee before Parliament votes on the implementing legislation. But the early recall of Parliament and possible election on July 2 will interrupt this process.

Community organisations representing over two million Australians, and over 300,000 individuals have urged MPs to vote against the TPP because it increases corporate rights at the expense of peoples’ rights.

Public opposition in the US is so strong that all presidential candidates are opposed, and it will not even be considered by the US Congress until after the November election.

This forum will discuss the TPP in the context of the Australian and US elections, and why Australian politicians should not rush to endorse the TPP legislation.

UN – The TPP is fundamentally flawed

United Nations human rights expert Alfred de Zayas called on Governments not to sign the Trans-Pacific Partnership (TPP) ….

“The TPP is fundamentally flawed and should not be signed or ratified unless provision is made to guarantee the regulatory space of States,”….

“Trade agreements are not ‘stand-alone’ legal regimes, but must conform with fundamental principles of international law, including transparency and accountability,” Mr. de Zayas stressed….

In his statement, the Independent Expert expressed concern that, despite “enormous opposition by civil society worldwide, twelve countries are about to sign an agreement, which is the product of secret negotiations without multi-stakeholder democratic consultation.”

“The options are not to sign the TPP as it stands, as civil society demands, or not to ratify it, which is the responsibility of democratically elected parliaments,” the expert noted. “Should the TPP ever enter into force, its compatibility with international law should be challenged before the International Court of Justice”.

“If a public referendum were held in all twelve countries concerned, it will be solidly rejected,” Mr. de Zayas stated.

Mr de Zayas  is specifically concerned about the impact on human rights and his full text can be accessed via a UN web site here, external link

TransCanada will use ISDS to sue US for $15 billion because the President did not approve a pipeline.

  • President Obama decided to not approve the keystone XL pipeline.
  • TransCanada argues that it “had every reason to expect that its application [for the pipeline] would be granted.”
  • Hence, TransCanada intends to sue the US for $15 billion compensation through a secret ISDS tribunal.

The article below portrays risks to the environment BUT the same risks apply to government decisions relating to health and other areas when large corprations are given new powers under ISDS provisions.

Full article, external link The Corporation Behind Keystone XL Just Laid Bare the TPP’s Threats to Our Climate

Hollow Victory in plain paper tobacco packaging challenge that used ISDS

In 2011 Phillip Morris challenged Australia’s plain paper tobacco packaging using ISDS provisions in a Hong Kong trade treaty.

Australia has won, it seems, because they successfully argued that Phillip Morris was “treaty shopping”

However, the dismissal of the case on procedural grounds means that we will never get a ruling on the substance of Philip Morris’ claims. …..

What this means is that any country that is contemplating plain packaging – France has just joined the list of countries pursuing the policy – still has cause for concern. This is especially the case because tobacco companies don’t show any sign of giving up their legal campaign.

In this regard, poor countries are in the worst position because they can’t afford even a preliminary defence in an ISDS case….

(The Australian taxpayer avoidede further costs but also lost because the case, even though it was in the initial phase, has already cost the government $50 million.)

Leading arbitration lawyer says there are critical loopholes in the Trans-Pacific Partnership’s investment chapter that leave Australia wide open

Extracts follow, read the full article at external link TPP’s clauses that let Australia be sued are weapons of legal destruction, says lawyer

George Kahale III is chairman of the world’s leading legal arbitration firm – Curtis, Mallet-Prevost, Colt & Mosle LLP.

“If the trade minister is saying, ‘We’re not at risk for regulating environmental matters’, then the trade minister is wrong.” 9.15 provides protections for ….environmental, health or other regulatory objectives….but the protection is negated by five words in the middle

re Most Favoured Nation clause – Essentially, … is tantamount to a classic wipeout move. It would enable foreign corporations from TPP states to make a claim against Australia based on the ISDS provisions in any other trade deal Australia has signed, no matter which country it was signed with…..foreign investors can cherrypick another treaty Australia has signed

ISDS claims are not heard in a standing court staffed by independent judges. Instead, claims can proceed in ad hoc courtrooms – a hotel room, for example – by three arbitrators hand-picked by the parties. Unlike a traditional court of law, these arbitrators are not obliged to refer to precedent and, since their decisions are not open to appeal, they are free to rule according to their personal opinion.

US Labor Advisory Committee recommends discard or reject the Trans Pacific Partnership

The US Labor Advisory Committee on Trade Negotiations and Trade Policy includes representatives of every major labor union and labor coalition in America.

Its report commences:
Dear Mr. President:
The LAC strongly opposes the TPP, negotiated between the United States (U.S.), Australia, …… We believe that the Agreement fails to advance the economic interests of the U.S. and does not fulfill all of the negotiating objectives identified by Congress in the Trade Priorities and Accountability Act of 2015.
The threat to future economic gains here in the U.S. and the standard of living of our people will be put in jeopardy by the Agreement.
These threats will grow over time based on the potential for open ended expansion of the TPP to countries ranging from Indonesia to China.
The LAC believes the agreement should not be submitted to Congress or, if it is, it should be quickly rejected. The interests of U.S. manufacturers, businesses, workers and consumers would be severely undermined by the entry into force of the TPP.

Full text, external link, WARNING 124 pages of pdf LAC Report
For a more readable interpretation, Leo W. Gerard, International President, United Steelworkers, external link Burn the TPP.

TPP will fuel the climate crisis (hence increase health problems)

The Sierra Club Reports:

Beyond making no effort to combat climate disruption, the TPP would actually fuel the climate crisis. If approved, the pact would increase greenhouse gas emissions and undermine efforts to transition to clean energy. The TPP’s biggest threats to our climate are as follows:


Ben Norton writes in Salon:

Overall, the global deal will “allow TPP countries to violate critical environmental commitments to boost trade or investment,” the Sierra Club report notes.

“Government officials charged with promoting the TPP .. claiming …that the pact’s environment chapter would ‘preserve the environment,’” the environmental organization writes. “However, the chapter includes no provision that would protect climate and environmental policies from the myriad threats posed by other parts of the TPP.”

The US Sierra Club claims “the nation’s largest and most influential grassroots environmental organization — with more than two million members and supporters.”

ISDS Rulings – US Dolphin safe tuna labeling ruled a violation of the rights of Mexican fishers. Country of Origin labeling for beef and pork ruled a barrier to trade, US ordered to pay $1 billion per year.

World Trade Organisation rules against US dolphin safe labeling which has made significant reductions in the millions of dolphin deaths (another source says 97% reduction).

The US had already weakened the law in a series of amendments including replacing the import ban with a voluntary labeling policy, but ultimately lost and must now pay compensation to Mexican fishers or make further changes to the law.

Full story, external link WTO Ruling on Dolphin-Safe Tuna Labeling Illustrates Supremacy of Trade Agreements

In a similar way Canada and Mexico are attacking the US country of origin labeling (cool) for beef and pork which may see the World Trade Organisation rule it is a “barrier to trade”.

Update, Country of Origin labelling, 9th Dec 2015,

“The WTO authorized over $1 billion annually in trade sanctions against the United States unless and until the popular consumer policy is weakened or eliminated.

In the same article a history of US law changes reacting to Investor State Dispute Settlements (ISDS) via the WTO

“After previous WTO rulings, the United States has rolled back U.S. Clean Air Act regulations on gasoline cleanliness rules successfully challenged by Venezuela and Mexico and Endangered Species Act rules relating to shrimping techniques that kill sea turtles after a successful challenge by Malaysia and other nations. The U.S. also altered auto fuel efficiency (Corporate Average Fuel Economy) standards that were successfully challenged by the European Union.”

External link, WTO Orders Sanctions Unless U.S. Cuts Consumer Labels, Disproving Obama TPP Claims