
TPP leak: states give companies the right to repeal nations' laws - etiam
http://boingboing.net/2015/03/26/tpp-leak-states-give-companie.html
======
sandstrom
An example of how this can play out:

    
    
        Australia enacts a law on cigarette labeling,
        requiring warnings on the package.
        
        Tobacco companies sues Australia under a 
        Hong Kong - Australia trade agreement, to
        get them to revert the labeling law.
        
        (this isn't hypothetical, it's already happening)
    

[http://en.wikipedia.org/wiki/Plain_cigarette_packaging#Tobac...](http://en.wikipedia.org/wiki/Plain_cigarette_packaging#Tobacco_industry_response)

I'm definitely a big champion of capitalism, but these investor-state dispute
settlements seems really wrongheaded.

Also, I cannot understand why these negotiations are secret? All in favor of
trade-deals as long as they remove/reduce tariffs and tolls, but they should
be conducted in the open.

~~~
mike_hearn
Nitpick: you have stated that tobacco companies are suing Australia using a
HK-AUS trade agreement to get them to "revert the labelling law". That's
simply not true: they are suing for compensation, not trying to force a change
in the law (they'd have to try and get the law struck down as violating some
other constitutional law to do that).

> I'm definitely a big champion of capitalism, but these investor-state
> dispute settlements seems really wrongheaded

Why? Can you at least see the underlying motivation for them?

As it happens I don't like tobacco companies at all. I'm very sympathetic to
what Australia is doing and think other countries should adopt the same idea.
Nonetheless, I'm OK with the idea of Australia paying compensation to Phillip
Morris and other cigarette companies in this case, even though these companies
are quite loathsome. The reason is the higher principle might still be worth
it.

The rationale for ISDS is simple: politicians answer to citizens, citizens
want jobs and a growing economy. Period. They want that more than anything
else. In hard times "the economy" is _always_ at the top of voters concerns.
Politicians know this and will do almost anything to juice the economy e.g.
quantitative easing. One of the ways to boost the economy is to increase
trade, it's classical economics and it seems to work. Hence there's always
some free trade agreements being worked on somewhere.

Free trade is a great idea. However in the developed world most of the easy,
low hanging fruit has already been picked. Tariffs are mostly gone. The
remaining bottlenecks to trade are often things like differing technical
standards or different regulations, which are hard to fix.

One bottleneck is that business values a stable and predictable business
environment nearly as much as citizens value jobs, however "stable and
predictable" is obviously in tension with the desire politicians have to
change things around at a moments notice in order to try and win votes. In
particular, businesses fear sudden and arbitrary banning of their business
model or sudden seizure of their assets.

This holds back trade: company executives say to themselves things like, "our
factory is in the USA and lots of our customers are in the EU so we have high
shipping costs. We could set up a factory in the EU but that will take five
years and be a very expensive and complex project. If we do it and after seven
years the laws change such that it's no longer economic for us to do that,
we're screwed. And we don't trust the politicians over there not to screw with
us, so maybe we'll just stay as we are". Result: Europeans have fewer jobs so
are less happy, they pay more for the imports so are less happy, the company
doesn't expand so it's also less happy.

With ISDS maybe the decision looks like this instead: "we _should_ set up a
factory in the EU, because even if the laws there change and suddenly our
factory can't operate or doesn't make sense any more, we'll be compensated and
can use the compensation money to smoothly transition our business somewhere
else ..... so let's do it".

So by agreeing to compensate companies for changes in the political
environment, the hope is that there will be more trade, more investment, more
jobs and thus more happy wage-earning citizens.

Of course, politically this is a hard sell because people like to think that
if their elected politicians start whacking a foreign company doing business
in their country it's because the dirty foreigners are immoral and nasty and
generally deserve it .... and not, say, because their votes are easily bought
by a bit of crafty populism. But then again, they really want the jobs too. So
we'll have to see how this works out.

~~~
littletimmy
If this is that fine and dandy, why is it being done in secret?

~~~
nebolo
Free trade agreements are always negotiated in secret in order to enable the
two sides to come to a comprehensive agreement. Transparent negotiations fail.

~~~
littletimmy
That is circular reasoning. That sentence says agreement is secret so that
there can be agreement.

What nonsense.

~~~
nebolo
No, the sentence says _negotiations_ are secret so there can be agreement.

------
pdkl95
[https://www.techdirt.com/articles/20150325/17151130431/corpo...](https://www.techdirt.com/articles/20150325/17151130431/corporate-
sovereignty-provisions-tpp-agreement-leaked-via-wikileaks-would-massively-
undermine-government-sovereignty.shtml)

This is a slightly better discussion of the problem in the recently leaked
draft.

edit:

I guess they aren't bothering to even pretend this is would be anything other
than a show trial:

    
    
        "...the tribunals would be staffed by private sector lawyers unaccountable
        to any electorate, system of precedent or substantive appeal. Many of those
        involved rotate between acting as “judges” and as advocates for the investors
        launching cases against governments. Such dual roles would be deemed
        unethical in most legal systems."
    

Regulatory capture is a helluva drug.

~~~
fsloth
This sounds like a typical arbitral tribunal system that companies commonly
use to settle various contractual disputes - nothing sinister or unheard of
there. What is odd is that it appears to me the agreement would effectively
equate changes in legislation that affect profits to a contract dispute.

------
addicted44
Is anyone surprised that examples of this power being used currently and in
the past includes an oil company complaining that environmental regulations
hamper its profits and a tobacco company trying to prevent plain packaging?

Most democracies do not create laws which scare away multinationals. There
really is absolutely no incentive for it. Even corrupt politicians don't want
to scare away multinationals because the bribes from those companies are their
largest source of income.

This law effectively neutralizes democracy. It's also hilarious in a macabre
way to see supposedly nationalist Americans railing against Agenda 21 which is
non-binding, while treaties such as TPP which allow an international tribunal
which override national laws to be pushed forward by their govt.

~~~
fsloth
I wouldn't way it neutralizes democracy, just makes it less effective. To me
the core mechanic of modern democracies is control of society through
legislative power and the democratic procedure to rotate those that have it.

Taxation, even if just nominal, is one of the most powerful proven mechanisms
to control human behavior. This is effectively a tax on changing legislation,
thus impeding the democratic process.

Effectively this says that the rights of the stock holders to profits are more
valuable than the rights of the citizens. Which is a rule that has been
historically enforced in various countries time and again.

No wonder this is secret. Everyone who gets most of their livelihood through
labor and not capital investment are the unwilling benefactors.

------
hristov
It is completely unacceptable that this treaty is being written and negotiated
in total secrecy. Its even more unacceptable that the thing is supposed to be
secret even after it goes into force. This treaty will have a power of law and
you will be subject to it without knowing what it actually says. God knows
what it will contain when it comes out.

International trade can be very beneficial for all countries involved. But
they should be entered into force like all other treaties and laws. They
should be publicly known and subject to public debate.

~~~
drawkbox
Trade is good, secrets are bad.

Worst part of secret trade agreements is that it is isn't fair to the future
of workers affected by agreements.

If your business or career is going to be affected, knowing about this as it
happens is good to prepare and make a change. No doubt there is no changing
what capital, corporations and wealth want to do but at least give the little
guy a heads up.

In secret, all you are doing is harming people and then when it affects them
in the end it will be too late or put them in a bind.

In an age of information and being smart about careers and futures, a secret
trade agreement is feudal in nature and only for the kings.

------
fsloth
I cannot understand how nation states can willfully enter into an agreement
that actively curbs their sovereignty and moreover empowers global
corporations to leverage profit mechanisms that can hurt their national
interests.

Sure, western capitalism especially in anglosaxon countries has always been
neck to neck with foreign policy and had been able to leverage considerable
national resources (including military) to the benefit of their shareholders.
So this is a continuation of that tradition.

I understand bilateral treaties where USA has considerable leverage but
this... this is so many countries unanimously lowering their pants expectantly
to wallstreet. What the fuck. Sure, most of the corporations that benefit from
this have issued stocks so in a way 'everyone can benefit' but what I do not
understand is this: why are so many countries passing away their sovereignty
to companies. Or, to look this in another way, enable companies to tax
countries for legislation that is incompatible for their nexy quarter
strategy.

~~~
rayiner
National sovereignty is unpopular these days, on both sides of the aisle.
Liberals started it decades ago with their love of international criminal
tribunals and increased UN power, and now the conservatives are getting in on
the act. The underlying premise of both movements is that your pet issue is
more important than the sovereign right of nations to have domestic processes
free from foreign influence.

~~~
api
There's a long history of conservatives co-opting liberal ideas and
techniques. During the 2000s the right played both identity politics and
deconstructionism to great effect. The deconstructionism went into play in
areas like the "intelligent design" assault on evolutionary science -- if you
read the IDist arguments they are basically deconstructionist attacks on the
validity of induction and reason in general. The right has always done
identity politics better than the left.

------
fit2rule
This is out and out fascism folks, only it should be being spelled with a
capital "F", which of course can also be used to represent the huge FUCK YOU
that is being sent the way of the sovereign citizens whose very rights of
existence are being usurped by this agreement. And, it _is_ an agreement, no
less, to destroy the very fabric of the societies in which we all participate,
enjoy, perpetuate and belong. Because .. after a 5 year evolution has
occurred, once the pre-teens grow up and get used to the machinations of this
agreement, and it 'becomes normal', and 'always how its been', then we can
kiss our freedoms goodbye.

Make no bones about this, it is a play for total fascism to take over. A new
era of civilization will be in play - it will only take 5 years of this act to
be compelled by the societies-at-large which it seeks to destroy - and this
new age will be basically this: a trademarked boot, stomping hard on a human
face.

Fight this now, or watch your children devolve into a state of lesser being.
What we enjoy now will not be possible in 5 - maybe 10 - years from now. The
world is devolving, it is not getting better. Modern civilization is the
perpetual fight against those who would bring us - all of us, not just a few
at a time - down.

------
leesalminen
I saw a TED Talk [0] a while back about how Git could transform the
legislative process and help bring transparency to how our laws are formed.

I've known about the TPP for a while. I tried to discuss it with people and no
one had even heard of it.

What if we had a Github-esque site where all of our legislation (and all
revisions) are readily available with annotations. Would society be more
interested in participating in the creation of our laws? I know I would be.

[0]
[http://www.ted.com/talks/clay_shirky_how_the_internet_will_o...](http://www.ted.com/talks/clay_shirky_how_the_internet_will_one_day_transform_government?language=en)

~~~
rayiner
I think it's unappreciated the extent to which Congress has been doing version
control long before programming existed. Public laws (i.e. commits) are
written as amendments (i.e. diffs) to the United States Code. When a bill is
voted into law, they are accompanied by reports in the Congressional Record
(i.e. commit messages) explaining the rationale of the changes. And it's all
documented with decades of CSPAN footage.

The biggest missing piece is the United States Code Annotated. It has notes
showing for each provision the public laws that changed it (like svn log).
Unfortunately, this information is collected and maintained by West and Lexis
in proprietary databases. But everything else is out there and web-accessible.

~~~
beagle3
The rationale might be explained in the commit message, but it seems courts
never refer to it, preferring instead to reverse engineer the meaning from the
compiled code(law).

The rationale for the PATRIOT act was to fight terrorism. The rationale for
copyright extension was ... well, there was some gooblydock. But the courts
never seem to reference that when they actually apply these laws.

~~~
hawkice
The metaphor works better when you imagine the courts as part of the runtime
(or similar). The comments are available for us to use, as citizens, but when
the system is executing, it only cares what's in the code.

~~~
beagle3
> The comments are available for us to use, as citizens, but when the system
> is executing, it only cares what's in the code.

In that case, the comments are entertainment.

We are not the users of this system. We are its input/output.

------
the8472
Potentially - only after a trial - having to pay compensation is not exactly
the same as repealing a law.

Then again, disincentivizing the creation of such laws in the first place more
or less has the same outcome as repealing them after they have been passed and
may even be more surreptitious as the public may never learn how the law would
have looked like without that kind of pressure.

------
azernik
Title is complete biased linkbait. The actual content talks about companies
being able to appeal to an international TPP tribunal, not being able to
"repeal laws" themselves.

~~~
fit2rule
Whose tribunal? Who delegates that power? Who enforces those decisions?

Don't play the fool - this is heinous, totalitarian fascism, at its finest.
The TPP represents a far greater thread to modern civilized society than, for
example, the ISIS/Daesh 'threat'. These treaties - which must be fought on a
regular basis - are being pushed onto the world by ideologues and extremists
whose fundamental desire is the suppression of us all.

Fight this, at all costs. Or watch your children grow in a society far more
degraded than the one you live in, and enjoy, today. This is not a pro-
survival proposition; it is absolutely the end of civilization as we know it.

~~~
azernik
Poe's Law definitely applies here.

------
CyberDildonics
Interesting that current capitalism is about choice right up to the point
where it comes to what kind of government and laws you want to live under.
Then it is what you are born in to.

~~~
EliRivers
How is capitalism about choice? I thought capitalism was about having the
means of production privately owned and operated for profit.

~~~
VLM
Preferably (from the point of view of the owners) in an unregulated monopoly.

------
jaboutboul
This is yet another example of how the Obama administration continues to
undermine us. What happened to being the most "transparent" administration in
history. Bullshit!

~~~
cm127
Honest question: do you think Obama is writing the agreement himself, or do
you think he lacks political power to stop international corporations from
making these deals, or do you think he just doesn't care?

~~~
jaboutboul
I think he knows about the agreement and the process by which it is being put
together and doesn't care enough to open the process and make it more
transparent or is deliberately making sure that it's done in secret.

------
coldcode
I can't see how this agreement is supported in the US constitution since it
essentially voids the judicial system in favor of some external agency. Even
if they can't force a change in laws, fining the U.S. a trillion dollars or
something or face crippling trade embargoes amounts to the same thing. Of
course U.S. politicians see it as allowing U.S. corporations to dictate
foreign laws but are blind to the likelihood of that backfiring terribly.

------
zby
On April 18 there are planned to be protests in many places across the globe
in a Global Call to Action to Defeat Free Trade and Investment Treaties:
[https://www.globaltradeday.org/](https://www.globaltradeday.org/)

------
cbd1984
Flagged as obvious linkbait.

------
exo762
Is this agreement negotiated by reptilians? Where are names of people who is
working on this stuff? Were they elected? Were they appointed? By whom? How in
the world contents of such agreement can stay secret?

Donated money to wikileaks.

[https://shop.wikileaks.org/donate](https://shop.wikileaks.org/donate)

~~~
reality_czech
I heard it was being negotiated by Joseph Manderley of the United Nations
Anti-Terrorism Coalition (UNATCO). I'm sure it's all above board and the
outcome will be majestic.

------
stefantalpalaru
This reminds me of the corporate dystopia described in
[http://en.wikipedia.org/wiki/Continuum_%28TV_series%29](http://en.wikipedia.org/wiki/Continuum_%28TV_series%29)

