Info Service on Health Issues (Feb16/02)
24 February 2016
Third World Network
EU's new ICS would bring ISDS back from the dead
Published in SUNS #8185 dated 22 February 2016
Geneva, 19 Feb (Kanaga Raja) - The Investment Court System (ICS) proposed
by the European Commission for all of the EU's ongoing and future
investment negotiations to get around the massively unpopular Investor-State
Dispute Settlement (ISDS) system, would still empower corporations
to sue governments over measures to protect the environment, health,
workers and other public interests, according to a just released new
According to the report, the proposed ICS does not put an end to ISDS.
Quite the opposite, it would empower thousands of companies to circumvent
national legal systems and sue governments in parallel tribunals if
laws and regulations undercut their ability to make money.
It would pave the way for billions in taxpayer money being paid out
to big business. It could curtail desirable policymaking to protect
people and the planet. And it threatens to lock EU member states forever
into the injustices of the ISDS regime, said the report.
"In a nutshell, the proposed โ€new' ICS is ISDS back
from the dead. It's the zombie ISDS."
The report, titled "The zombie ISDS: Re-branded as ICS, rights
for corporations to sue states refuse to die", was released by
some 17 civil society organisations in 11 European Union countries.
The full report is at URL below: (http://corporateeurope.org/sites/default/files/attachments/the_zombie_isds.pdf)
They are Corporate Europe Observatory (CEO); Association Internationale
de Techniciens, Experts et Chercheurs (AITEC); Attac Austria; Campact;
ClientEarth; Ecologistas en accion; Forum Umwelt & Entwicklung;
Instytut Globalnej Odpowiedzialnosci (IGO); PowerShift; Seattle to
Brussels Network (S2B); Traidcraft; Transnational Institute (TNI);
Umanotera; Vedegylet; Vrijschrift; War on Want; and 11.11.11.
According to the report, investor-state cases have mushroomed in the
last two decades from a total of three known treaty cases in 1995
to a record high of over 50 new claims filed annually in the past
five years. 2015 saw the absolute record high of 70 new ISDS cases.
Globally, it said, 696 investor-state disputes were counted as of
1 January 2016, against 107 countries, but due to the opacity of the
system the actual figure could be much higher.
Seventy-two per cent of all known cases filed by the end of 2014 were
against developing and transition countries. But lawsuits against
developed economies are also on the rise - in 2015, Western Europe
was the world's most sued region.
Investors have triumphed in 60 per cent of investor-state cases where
there has been an actual decision on the merits of the case, whereas
states have โ€won' only 40 per cent of the time (even
though there isn't anything states can win because they only ever
get awards against them).
The report found that award figures may reach up to ten digits. The
highest known damages to date, US$50 billion, were ordered against
Russia, to the former majority owners of oil and gas company Yukos.
The main financial beneficiaries have been large corporations and
rich individuals: 94.5 per cent of the known awards went to companies
with at least US$1 billion in annual revenue or to individuals with
over US$100 million in net wealth.
According to the report, the last two decades have also seen a number
of multi-million-dollar claims against the alleged damage to corporate
profit of legislation and government measures in the public interest.
"Developed and developing countries on every continent have been
challenged for financial stability measures, bans on toxic chemicals,
mining restrictions, anti-smoking legislation, anti-discrimination
policies, environmental impact assessments and more."
The report cited several examples of investor-state lawsuits:
* Corporations versus public health - Philip Morris vs. Uruguay: Since
2010, Philip Morris has been suing Uruguay on the basis of its bilateral
investment treaty with Switzerland. The tobacco giant challenges compulsory
large-scale health warnings on cigarette packs and other tobacco control
measures designed to reduce smoking, arguing that they prevent it
from displaying its trademarks, causing substantial losses. Philip
Morris demands US$25 million in compensation from Uruguay.
* Corporations versus action on climate change - TransCanada vs. the
US: In January 2016, Canadian pipeline developer TransCanada announced
its intention to sue the US on the basis of the North American Free
Trade Agreement (NAFTA) over President Obama's rejection of the contested
Keystone XL oil pipeline from Canada's tar sand fields to refineries
in the US. The project, which according to environmentalists, would
increase CO2 emissions by up to 110 million tons per year, had faced
massive citizen opposition. TransCanada wants a stunning US$15 billion
* Corporations versus environmental protection - Vattenfall vs. Germany
I & II: In 2009, Swedish energy multinational Vattenfall sued
the German Government, seeking 1.4 billion euros in compensation for
environmental restrictions imposed on one of its coal-fired power
plants. The case, based on the Energy Charter Treaty (or ECT, an international
agreement for cross-border co-operation in the energy industry), was
settled after Germany agreed to weaken the environmental standards.
In 2012, Vattenfall launched a second lawsuit via the ECT, seeking
4.7 billion euros for lost profits related to two of its nuclear power
plants. The legal action came after Germany decided to phase out nuclear
energy, following the Fukushima nuclear disaster.
* Corporations versus black empowerment - Piero Forsti and others
vs. South Africa: In 2007, investors from Italy and Luxembourg sued
South Africa over its Black Economic Empowerment Act, which aims to
redress some of the injustices of the apartheid regime. It requires,
for example, mining companies to transfer a portion of their shares
into the hands of black investors. The dispute (under South Africa's
bilateral investment treaties with Italy and Luxembourg) was closed
in 2010, after the investors received new licenses, requiring a much
lower divestment of shares.
* Corporations versus the environment and community values - Bilcon
vs. Canada: In 2008, US concrete manufacturer Bilcon sued Canada on
the basis of NAFTA over the rejection of a proposed quarry, following
an impact assessment warning of potential adverse social and environmental
effects. In 2015, Canada lost the case. Two of the arbitrators ruling
on the claim considered the impact assessment as arbitrary, frustrating
Bilcon's expectations and therefore violating NAFTA. The third arbitrator
disagreed strongly, calling the ruling a "significant intrusion
into domestic jurisdiction" and warning that it "will create
a chill on the operation of environmental review panels". How
much compensation Canada will have to pay is yet to be decided, but
it could climb as high as US$300 million even though the project never
reached the construction stage.
* Corporations versus action against financial crises - investors
vs. Argentina: When Argentina froze utility rates (energy, water,
etc.) and devalued its currency in response to its 2001-2002 financial
crisis, it was hit by a flood of nearly 30 investor lawsuits and became
the most-sued country in the world under investment arbitration. Big
companies like Enron (US), Suez and Vivendi (France), Anglian Water
(UK) and Aguas de Barcelona (Spain) demanded multi-million compensation
for revenue losses. So far, Argentina has been ordered to pay a total
of US$900 million in compensation for its financial-crisis-related
measures, with several cases still ongoing.
* Corporations versus communities and the environment - Gabriel Resources
vs. Romania: In 2015, Canadian mining company Gabriel Resources sued
Romania via two of the country's bilateral investment treaties. The
lawsuit concerns Gabriel's planned open pit gold mine in the historic
village of Rosia Montana. It was halted when Romanian courts annulled
several permits and certificates required for the project, following
strong community resistance against the mine's potentially disastrous
environmental and social impacts. According to media statements, Gabriel
could demand up to US$4 billion in compensation.
* Corporations against fracking moratoria - Lone Pine v. Canada: In
2011, the Government of the Canadian province of Quebec responded
to concerns over water pollution by implementing a moratorium on the
use of hydraulic fracturing (โ€fracking') for oil and
gas exploration. In 2012, the Calgary-based Lone Pine Resources energy
company filed a NAFTA-based investor-state lawsuit, challenging the
moratorium. Lone Pine, which filed the case via an incorporation in
the US tax haven Delaware, is seeking US$109.8 million plus interest
The report noted that sometimes, the threat of an expensive dispute
has been enough to freeze or delay government action, making policymakers
realise they would have to pay to regulate. Canada and New Zealand,
for example, delayed anti-smoking policies because of threatened or
actually filed investor lawsuits from Big Tobacco.
As the number of investor-state disputes has grown, investment arbitration
has become a money-making machine in its own right. Today, there are
a number of law firms and arbitrators whose business model depends
on companies suing states. Hence, they are constantly encouraging
their corporate clients to sue - for example, when a country adopts
measures to fight an economic crisis.
Meanwhile, sitting as arbitrators, investment lawyers have been found
to adopt investor-friendly interpretations of the corporate rights
in trade and investment deals, paving the way for more lawsuits against
states in the future, increasing governments' liability risk.
"Speculative investment funds, which have recently started helping
fund investor-state disputes in exchange for a share in any granted
award or settlement, are likely to even further fuel the boom in arbitration,"
the report warned.
It noted that the growing number of corporate lawsuits has raised
a global storm of objection to investment treaties and arbitration.
Public interest groups, trade unions, small and medium enterprises,
and academics have called on governments to oppose investor-state
arbitration, claiming it fails basic standards of judicial independence
and fairness and threatens states' responsibility to act in the interest
of their people, economic and social development and environmental
Concerns have also been raised about the glaring absence of investor
obligations and the imprecise language of many treaties, opening the
floodgates to expansive, pro-investor interpretations of corporate
rights by private tribunals.
Proponents of free markets and trade, such as the right-wing US think
tank Cato Institute, too, have joined the opponents' camp criticising
that "the ISDS approach of providing ... protections only for
foreign investors... is akin to saying in a domestic constitution
that the only rights we will protect are those of wealthy property
Germany's largest association of judges and public prosecutors (with
15,000 members of a total of 25,000 judges and prosecutors in the
country) has recently raised similar concerns about granting exclusive
rights and pseudo-courts to foreign investors, calling on legislators
to "significantly curb recourse to arbitration in the context
of the protection of international investors".
The report pointed out that some governments, too, have realised the
injustices of investment arbitration and are trying to get out of
the system. South Africa, Indonesia, Bolivia, Ecuador, and Venezuela
have terminated several bilateral investment treaties (BITs).
South Africa has developed a domestic bill that does away with some
of the fundamental and most dangerous clauses in international investment
law. So does India's new model investment treaty. Indonesia, too,
seems to be moving in a similar direction.
And in Europe, Italy has withdrawn from the Energy Charter Treaty
(ECT) - a multilateral treaty created after the Cold War to integrate
the energy sector of the former Soviet Union into Western markets
- notably after having been hit and threatened with ECT-based claims
in the renewables sector.
According to the report, at a time when both the number of super-sized
investor lawsuits and the types of policies being attacked are surging,
and more and more governments are trying to change or exit from the
investment arbitration system, an even bigger threat looms on the
A number of mega-regional treaties involving close to 90 countries
are currently under negotiation, which threaten to massively expand
the ISDS regime, subjecting states to an unprecedented increase in
In this context, the report cited the Trans-Pacific Partnership (TPP)
between 12 Pacific countries including the US and Japan; the Regional
Comprehensive Economic Partnership (RCEP) under negotiation by 16
Asia and Pacific economies; the Tripartite Free Trade Agreement (TFTA)
which is being negotiated by 23 African economies; a number of bilateral
deals, including the US-China and the EU-China investment treaties;
and the proposed Transatlantic Trade and Investment Partnership (TTIP)
between the EU and the US.
A recent analysis estimated that while all existing investment agreements
cover only 15-20 per cent of the global investment flows, these new
treaties would increase this coverage to approximately 80 per cent,
multiplying the risk of governments being sued as a result of public
"TTIP alone would dwarf all of the existing treaties allowing
for investor-state dispute settlement. For example, in one fell swoop,
it could multiply the number of US-based corporations that could challenge
European environmental, health, and other public safeguards in international
tribunals by a factor of eleven."
The report charged that in the wake of massive public concern over
ISDS, the European Commission is using a new acronym - ICS or the
investment court system - to re-brand and give cover to a massive
expansion of the same much-loathed regime.
The extent of the opposition to the once-arcane ISDS became clear
in early 2015, when the Commission published the results of a public
consultation on the rights of foreign investors in the EU-US TTIP
trade deal currently under negotiation: over 97% of the record 150,000
participants had rejected the corporate privileges.
The outcry came from a broad and diverse camp, including businesses,
local and regional governments, elected representatives, academics,
trade unions and other public interest groups.
Even more people, over 3.3 million Europeans, have signed a petition
against TTIP and the already concluded EU-Canada Comprehensive Economic
Trade Agreement (CETA) "because they include several critical
issues such as investor-state dispute settlement... that pose a threat
to democracy and the rule of law".
Criticism had also mounted in EU member states and the European Parliament.
Parliaments in the Netherlands, France, and Austria, for example,
had adopted resolutions raising serious concerns about investment
arbitration in TTIP.
So when, in autumn 2015, the European Commission presented a revised
proposal for all of its ongoing and future investment negotiations
(including TTIP), it went for a new label.
Instead of "the old, traditional form of dispute resolution"
which "suffers from a fundamental lack of trust", Trade
Commissioner Malmstrom promised "a new system built around the
elements that make citizens trust domestic or international courts".
The new talk in town was โ€ICS': the โ€Investment
Court System' - a system that allegedly would "protect the governments'
right to regulate, and ensure that investment disputes will be adjudicated
in full accordance with the rule of law," as European Commission
Vice President Timmermans claimed.
"The problem is, when you examine ICS it looks like ISDS has
risen from the grave," said the report, adding that what the
EU is proposing simply copies in many ways the arbitration proceedings
of the past.
For example, investor-state lawsuits under TTIP would still operate
under the usual ISDS arbitration rules. And the so-called โ€judges'
deciding the cases would be paid according to the most common schedule
of fees used in ISDS proceedings - with a lucrative US$3,000 per day.
Indeed, with the exception of some procedural improvements - an enhanced
selection process of arbitrators (re-labelled โ€judges')
and the establishment of an appellate chamber - the โ€new'
ICS essentially equals the โ€old' ISDS system which can
be found in existing investment treaties and the current text of the
proposed EU-Canada CETA.
"The ICS proposal contains the same far-reaching investor rights
that multinationals have used when demanding multi-billion Euros in
compensation for public health and environmental policies. As a result,
it contains the same serious risks for taxpayers, public interest
policies, and democracy as the โ€old' ISDS system."
INHERENT DANGERS IN EU'S ICS PROPOSAL
According to the report, the EU proposal for an ICS would empower
tens of thousands of companies to sue.
The European Commission's latest proposal for investment protection,
which applies to all of its ongoing and future trade negotiations,
would allow foreign investors operating in the EU and EU-based investors
operating abroad to circumvent national legal systems and file lawsuits
in international tribunals - whenever they think that state actions
violate the far-reaching โ€substantive' investor rights
that the EU proposes.
In the context of TTIP alone, tens of thousands of companies would
be potential claimants. According to research by US-consumer group
Public Citizen, a total of 80,000 companies operating on both sides
of the Atlantic could launch investor-state attacks if the EU proposal
was to be included in TTIP.
"So, the EU proposal would significantly expand the reach of
the current ISDS system."
The EU's proposal contains the same wide-ranging so-called โ€substantive'
rights for investors as existing treaties, which have been the legal
basis for investor attacks against perfectly legitimate and non-discriminatory
government policies to protect health, the environment, economic stability,
and other public interests.
The report further said that the EU proposal paves the way for billions
of taxpayers' money to be paid to corporations. Once an investment
tribunal finds that a state has violated the investors' super-rights
- and being found to be in breach of just one of them is enough -
based on the EU proposal, it could order vast amounts of public money
paid to compensate the investor.
"As there is nothing in the text that puts limits on how much
a company can sue for, the multi-million and billion lawsuits already
on the table around the world are set to continue. They can wreak
havoc with public budgets, and can be enforced by seizing state property
in many countries around the world."
The report said that while under the new EU proposal, investment tribunals
could not order governments to reverse or rewrite a law, it doesn't
take much to imagine how, by empowering multinationals to claim eye-watering
sums in compensation for public decisions, the investor rights could
make politicians reluctant to enact desirable safeguards for public
health, social well-being, privacy, and the environment if those are
opposed by big business.
"Indeed, there is already evidence that proposed and adopted
laws on health and environmental protection have been abandoned, delayed
or otherwise adapted to the wishes of big business because of expensive
corporate claims or the threat of litigation."
The EU proposal would allow foreign corporations to challenge everything
that sovereign nations can do: laws passed by Parliaments, actions
by governments and court rulings that allegedly harm their investments
- from the local to the federal and even European level.
"In a nutshell, the EU proposal would establish a supreme pseudo-court
that would trump all courts of EU member states and the European Court
of Justice. But this pseudo-court would be exclusively accessible
to foreign investors and its only purpose would be to protect their
investments and profit expectations."
The report further charged that the dispute settlement process proposed
by the EU is not judicially independent, but has a built-in, pro-investor
Lawsuits would be decided by a tribunal of three for-profit arbitrators
(now re-labelled โ€judges' by the EU) with vested interests.
Unlike judges, they would not have a fixed salary, but be paid per
case - with a lucrative US$3,000 per day, on top of a monthly retainer
fee of 2,000 euros per month. So, they would earn more fees as more
foreign investor claims were brought.
"In a one-sided system where only the investors can sue, this
creates a strong systemic incentive to side with them - because as
long as the system pays out for investors, more claims and more money
will be coming to the arbitrators. An empirical study of 140 investment
treaty cases until May 2010 indeed reveals that arbitrators have vastly
extended foreign investors' rights through expansive interpretations
of the law."
Re-labelling the ISDS system a โ€court system' and the
new arbitrators โ€judges' as the European Commission is
doing is a serious misnomer. It can never be a true court as long
as foreign investors are the only ones who can file lawsuits and as
long as the tribunals will not be taking into account environmental
protection, human rights or other non-corporate considerations that
a regular judge usually has to balance, said the report.
It further argued that the EU proposal would risk to eternalize the
ISDS. Several countries around the world are currently getting out
of investment agreements, which have proven too costly for them. But
while many existing treaties could be terminated at any time, it will
be practically impossible to exit from the extra rights for foreign
investors once they are enshrined in a larger trade pact as proposed
by the European Commission.
"So, rather than putting an end to the ISDS-system as we know
it, the EU's investment protection agenda threatens to forever lock
EU member states into a legal regime where private profits trump the
public interest and democracy."
Unlike Red Riding Hood, people in Europe and in countries to whom
the EU is currently proposing the ICS shouldn't be fooled, said the
"The ICS is as dangerous for taxpayers, policies in the public
interest and democracy as the โ€old' and much-loathed
ISDS system. It is arguably even more threatening - because it could
forever lock EU member states into a legal regime where private profits
trump the public interest and democracy."
SEVEN REASONS TO OPPOSE THE ICS
The report went on to cite seven key reasons to oppose the proposed
ICS in EU trade deals:
(1) The ICS would empower tens of thousands of corporations to sue
governments over measures to protect the environment, health, workers
and other public interests.
(2) Under the ICS, billions in taxpayer money could be paid to compensate
corporations, including for missed future profits that they hypothetically
could have earned.
(3) The ICS is a sure-fire way to bully decision-makers, potentially
curtailing desirable policymaking, for example, to tackle climate
change, social injustice or economic crises.
(4) The ICS would give exceptionally powerful rights and privileges
to foreign investors, without any obligations and without any evidence
of wider benefits to society.
(5) Since only investors can sue under the ICS system, there is an
incentive for the arbitrators to side with them as this will bring
more lawsuits, fees and prestige in the future.
(6) There are severe doubts that the ICS is compatible with EU law
as it sidelines European courts and is fundamentally discriminatory,
granting special rights to foreign investors only.
(7) The ICS risks forever locking us into a legal straightjacket,
as it will be practically impossible to exit from the investor privileges
as a part of larger trade deals, let alone a multilateral investment
In a nutshell, said the report, the system is fundamentally ill-suited
to deal with the key challenges of our current historical moment and
of the future. In a time when all attention should be focused on averting
a global climate catastrophe and the next economic crisis, there is
simply no space for agreements that would make many solutions to these
"Existing treaties that allow private companies to sue governments
over laws that impinge on their profits - from tough anti-pollution
regulations to stricter rules for banks - should be abolished. Plans
for supplemental corporate bills of rights in proposed treaties such
as TTIP and CETA should be axed. And so should be the proposal for
a world supreme court exclusively for corporations. They are all wildly
dangerous for democracy as we know it."
[Meanwhile, in a separate presentation on 11 February in Washington
DC, at the National Press Club panel on the proposed inclusion of
ISDS in the Transpacific Partnership accord, Lise Johnson, Head of
Investment Law and Policy, Columbia Center on Sustainable Investment
(hereafter ILPC Center), has said including the ISDS in the TPP would
be a case of "entrenching and expanding a failed experiment in
[In the presentation, Johnson said investment treaties around the
world and the ISDS mechanism is nothing new, "the first investment
treaty with ISDS was actually not concluded until the late 1960s.
Investment treaties with ISDS were not widely negotiated until the
1990s, and ISDS claims only really emerged in earnest in the late
1990s and early 2000s. There are thus, only roughly 15 years of experience
with this mechanism.
["It is a failed experiment because it does not appear to have
achieved three of the commonly stated objectives of the mechanism:
it has not led to increased investment flows, nor to a set of predictable
international legal rights for investors, nor to an increase in the
rule of law in host countries."
[Speaking in the context of the US, she underlined that currently,
the US has only an investment treaty with one major capital exporting
state, Canada, meaning that only a relatively small share of foreign
direct investment in the US - roughly 10% - is currently protected
by a treaty with ISDS. With the TPP, the percentage of covered investment
will more than double; and if the trend continues in the TTIP as well,
the amount of covered FDI in the US will rise significantly to approximately
70%, and along with it, the US's exposure to costly litigation and
[Referring to the oft-repeated US administration's claim that the
ISDS has not cost the US anything so far, and that it was yet to lose
an ISDS case, Johnson said in this instance the past cannot be counted
on to predict the future. In the cases it has defended, the US has
had near misses in which even the government officials working on
the case thought the Government would lose.
["One explanation given for why arbitrators have been reluctant
to rule against the US is that, if the US were to lose, it would back
away from the system to the ultimate detriment of the arbitrators
and counsel who make their living from ISDS cases," Johnson said,
adding, "thus, at least while the future of ISDS felt uncertain,
it has been in the best interest of arbitrators to take it easy on
[Recent decisions also reflect "significant delegation of authority"
under ISDS to arbitrators to interpret and apply the treaty, without
any meaningful review or opportunity to appeal the arbitrators' decisions.
"The tribunal in a recent case against the US, for example, stated
that although all three NAFTA states unanimously agreed that the treaty
meant โ€X', it didn't consider itself bound to that interpretation
and proceeded to disregard it." This shows that there is no guarantee
that tribunals will interpret treaty provisions in a way consistent
with the US's understanding of what treaty obligations mean.
[Fourth, the US has also lost on key issues (in the ISDS arbitrations),
resulting in an expansion of exposure to future claims and damages.
And, irrespective of data on wins and losses, the ISDS system is fundamentally
flawed: it creates a privileged and powerful system of protections
for foreign investors that is inconsistent with, and erodes, the power
of domestic law and institutions.
[Dismissing the USTR's defence of ISDS, on the basis that the standards
of protection investors receive under it mirror, but do not go beyond,
the protections provided under US domestic law, Johnson said there
are two key problems with that assertion. One, it is not correct that
investment treaties do not provide foreign investors any greater rights
than under domestic law.
[The ILPC Center, after undertaking significant research comparing
the protections under domestic law with those under investment treaties,
"conclude that the protections provided under investment treaties
in fact give foreign investors greater rights than they or anyone
else have under domestic law."
[In fact, this seems to be why TransCanada, suing the US government
over its denial of the permit for the Keystone project, is pursuing
its major claim for $15 billion through the NAFTA as opposed to through
[Moreover, ISDS allows investors to challenge actions of officials
at any level of government - local, state, and federal - and conduct
by any branch - executive, legislative and judicial. The fact that
a measure is entirely consistent with domestic law is no defense or
shield against liability.
[The ISDS gives private arbitrators the power to decide cases that,
at their core, are merely questions of domestic constitutional and
administrative law dressed up as treaty claims. Instead of recourse
through local, state or federal domestic institutions, investors are
able to take their claims to a panel of party-appointed international
arbitrators and ask them to determine the bounds of proper administrative,
legislative, and judicial conduct.
[In permitting foreign investors to bring claims against the government
before international arbitrators, there is no "meaningful appeal"
against a wrong finding of law or facts; the decision-makers in ISDS
are free of the requirements of independence, impartiality, and high
ethical standards that are mandatory for US judges; in domestic litigation,
if a court issues a decision, inconsistent with legislative intent,
the legislature can pass a law correcting that decision; the legislature,
however, has no power to undo or otherwise override an ISDS decision;
the procedural rules and remedies are significantly different depending
on whether an investor brings its claims through ISDS or through domestic
courts, with meaningful impacts on the government's potential exposure
to claims and liability; and, even if the law looks similar, it is
not the same. For example, although the TPP incorporates what superficially
looks like the US's test on regulatory expropriations, tribunals are
not in any way bound to apply that test in the same manner as US courts.
[Fundamentally, supranational adjudication - where the decisions of
a supranational body can penetrate deep into a domestic society -
is rare and raises a host of complex legal and policy questions. "Much
more consideration of these issues is important before we inadvertently
dilute constitutional protections, weaken the judicial branch, and
outsource our domestic legal system to a system of private arbitration
that is isolated from essential checks and balances. This is not to
say that supranational adjudication has no place in the American legal
system, but rather that ISDS is an extreme, discriminatory and unnecessary
version that will have undue negative effects on our domestic law
[For text of presentation, see http://citizen.typepad.com/eyesontrade/2016/02/press-club-tpp-isds-remarks.html