Trade Agreements Are Designed To Give Companies Corporate Sovereignty

October 25, 2013

Source: Techdirt

One of the difficulties of making people aware of the huge impact that INVESTOR-STATE DISPUTE SETTLEMENT (ISDS) clauses in Trade Agreements called TPP, TAFTA and TTIP are likely to have on their lives, is that the name is so boring, and so they tend to assume that what it describes is also boring and not worth worrying about. And yet what began as an entirely reasonable system for protecting investments in emerging economies with weak judiciaries, through the use of independent tribunals, has turned into a monster that now allows companies like Chevron Oil to place themselves above national laws, as Techdirt has reported before.

The acronym "ISDS" just doesn't capture any of that, so during a conversation on Twitter with Maira Sutton, Jamie Love and a couple of Techdirters (Mike and me), Joe Karaganis came up with a great alternative:   ISDS = "corporate sovereignty".

That, in a couple of words, is what ISDS is really all about.   ISDS is "Corporate Sovereignty!! 

ISDS aka Corporate Sovereignty- represents the rise of the "CORPORATION" AS AN "EQUAL" of the NATION STATE, endowed with a "Financial Sovereignty" THAT ALLOWS IT TO "CLAIM COMPENSATION if its expectation of FUTURE "PROFITS" is somehow DIMINISHED BY A COUNTRY's COURTS OR LEGISLATIVE CHANGES".

A link-rich page on Public Citizen's "Eyes on Trade" blog provides a timely introduction to the field.

It's based on another interesting, but slightly more academic post by Todd N. Tucker, found on the Investment Policy Hub of United Nations Conference on Trade and Development (UNCTAD).

That organization produces an extremely valuable annual review of the whole area of ISDS/corporate sovereignty, which is recommended if you want to get all the facts and figures.

Here's Public Citizen's summary of perhaps the most blatant attempt of ISDS to assert corporate sovereignty so far in the case of Chevron vs Ecuador protecting it's Amazon Rainforest.

In one of the Chevron vs. Ecuador cases, a "3 person tribunal" last year "ORDERED" Ecuador's Government to interfere in the operations of its independent court system on behalf of CHEVRON by suspending enforcement of a historic $18 billion judgment AGAINST Chevron Oil Corp. for mass contamination of the Amazonian rain forest. The ruling against Chevron, rendered by Ecuador's courts, was the result of 18 years of litigation in both the U.S. and Ecuadorian legal systems. Ecuador had explained to the panel that compliance with any order to suspend enforcement of the ruling would violate the separation of powers enshrined in the country’s Constitution -- as in the United States, Ecuador's executive branch is constitutionally prohibited from interfering with the independent judiciary. Undeterred, the "3 person" tribunal proceeded to order Ecuador "to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within and without Ecuador of any judgment [against Chevron]."

As that notes, the tribunal was essentially telling the Ecuadorean government to place Chevron above the country's constitution -- an extraordinary state of affairs: imagine if the US government were ordered to do the same.

Unfortunately, Ecuador's situation is one that is likely to become more common if the corporate sovereignty sections of TPP and TAFTA/TTIP make it into the final versions of those treaties.