Tripping Over #TPP: Debunking Elizabeth Warren's Lies on the Trans-Pacific Partnership

Usually, I respect Elizabeth Warren, but someone seems to have told her that she could be a big Lefty hero by backstabbing her own president on the Transpacific Partnership. Last week, I wrote about the patent and galling hypocrisy of the ideologue Left that loudly advocates for turning over Americans to be tried for war crimes in an international court that the US is not party to but suddenly finds itself concerned about "sovereignty" if an international tribunal is to be applied to trade disputes.

Following up last week's rhetorical nonsense, Sen. Warren has sent out an email today in which she flat out lies - yes, lies - about a trade pact the President is engaged in striking with countries on either side of the Pacific, commonly known as the Trans-Pacific Partnership (or in scaremongering bug-a-boo language, "The worst thing since unsliced bread"). Warren spreads the fear of an acronym, ISDS, which is short for "investor-state dispute settlement", a routine feature of nearly all modern trade deals that allows an international tribunal to address matters of dispute between investors from a signatory country and another signatory country's government.

ISDS is a feature of agreements like NAFTA, a fact which has been used to set enough hair on fire on the Professional Left to power a small country for a month. But as I reminded the reader in last week's piece, not a single case against the United States has ever been won through NAFTA's ISDS process - ever. Also of note is the fact that the Obama administration has won every single international trade dispute it has brought before the World Trade Organization.

Warren takes the fearmongering a notch up in her email today, by dreaming up a nightmare scenario of a chemical polluter forcing the American taxpayer to cough up billions of dollars under the ISDS.

Imagine that the United States bans a toxic chemical that is often added to gasoline because of its health and environmental consequences. If a foreign company that makes the toxic chemical opposes the law, it would normally have to challenge that regulation in a US court.

But with ISDS, the company could skip the US courts and go before an international panel of arbitrators. If the multinational company won, the ruling couldn’t be challenged in US courts, and the arbitration panel could require American taxpayers to cough up millions – and even billions – of dollars in damages.

That is a flat out lie, and it can be proven with specific language on the information available on TPP negotiation. From the US Trade Representative's office on what the United States is seeking in the investor-state dispute process:

Procedures for arbitration that will provide basic rule of law protections for U.S. investors operating in foreign markets similar to those the U.S. already provides to foreign investors operating in the U.S. These procedures would provide strong protections to ensure that all TPP governments can appropriately regulate in the public interest, including on health, safety, and environmental protection. This includes an array of safeguards designed to raise the standards around investor-state dispute settlement, such as by discouraging and dismissing frivolous suits, allowing governments to direct the outcome of arbitral tribunals in certain areas, making proceedings more open and transparent, and providing for the participation of civil society organizations and other non-parties.

So no, Sen. Warren, a toxic chemical manufacturer will not be allowed to trump domestic laws and force the US (or any other government) to lick up that good toxicity. That is, as Vice President Biden would say, malarkey.

Warren follows up this nightmare scenario with a completely unsubstantiated claim that the tribunal(s) under ISDS would be stuffed with corporate lawyers - you mean like the Chief Justice of the United States, Senator? - who are predisposed to the positions of multinationals rather than independent arbiters of fact and law.

Nobody knows where she is getting this from, except that this has been the longstanding rant in the ideologue echo chamber. If NAFTA's section on dispute resolution is the guide, there are even more misconstruction in Warren's diatribe than simple imagination. Article 1123 of NAFTA, describing this arbitration process, says that the "Tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties."

Another method of arbitration (consolidation) under NAFTA (Article 1126) is conducted under UN rules, with a panel drawn from pre-assigned arbitrators who are not nationals of either country.

Elizabeth Warren's math is a fuzzy unless you assume that the United States - specifically in this case the Obama administration - is prone to appointing and accepting corporate lawyers predisposed against the United States to arbitration proceedings. After all, the "investor" suing the US only gets to appoint one arbitrator on their own. That suggestion is dumb and offensive.

I know, I know. But but, Obama is not going to be president forever! What if a Republican president decided to do (a), (b) and (c)? Well, a Republican president (or even some Democrats) can simply choose to let corporations get away with things. What's stopping them from doing that, with or without a trade pact? What if a Republican Congress alters the rules of labor law and it's signed by a Republican president?

The point is, the conjecture about what future administrations and future Congresses may do is beside the point. If you want a right wing agenda to take over, spend your energy trying to get people to vote rather than backstabbing the president who got more people to vote than any other in history.

But that's not all. The really egregious thing about this allegation is feigning ignorance of the fact that these disputes can't even be brought under what we have seen in ISDS rules thus far. NAFTA's, for example, allow such actions to be brought only in cases where a country refuses to treat a business ('investor') of another country under the same rules as it treats its own. Heck, NAFTA's rules even protect the right of a country to declare its own monopolies (say, in Lefty utopia world, if the United States were to nationalize the American oil and gas industry, there is nothing Warren's nightmare-ish chemical poison manufacturer could do).

Needless to say, the problem with NAFTA is not its method of dispute resolution. I reiterate that not a single arbitration case brought against the United States in this manner has ever been won.

The problem with NAFTA is inadequate protection and lack of enforceable rules regarding labor and environmental standards. To this end, Warren again uses the strawman scaremonster of the ISDS to troll the president.

consider who would get to use this special court: only international investors, which are, by and large, giant corporations. So if a Vietnamese company with US operations wanted to challenge our refusal to import a dangerous chemical, it could use ISDS.

First of all, let me stop you there, Senator. As established above, no, no they couldn't. But carry on.

But if an American labor union or human rights group believed Vietnam was allowing Vietnamese companies to pay slave wages in violation of trade commitments, the American labor group would have to make its case in the Vietnamese courts – and if an environmental group thought the Vietnamese company was dumping waste in their rivers in violation of the new trade agreement, they would have to go to a Vietnamese court as well.

Once again, it's disappointing (to say the least) to see someone like Elizabeth Warren spreading bold faced lies. While ISDS is a method for investors (i.e. corporations) to resolve certain narrow disputes, and it is bluntly false to state that labor and environmental concerns are left out.

First, recall that any investor could bring a case against a foreign government, provided conditions of unfair treatment were made. There is not an easier case to make that a company (foreign to the country it does business in) that abides by ethical and agreed-upon (which by definition becomes the law of the land in signatory nations) labor and environmental standards is treated unfairly by a government's ignorance or promotion of its competitors' illegal and unethical practices. Then, in that case, there is indeed a labor friendly case to be made through the ISDS process.

But more importantly, the Obama administration is seeking specific measures to enforce the labor and environmental standards. It takes no more than a rudimentary study of the US Trade Representative's website's section on the TPP to discover the following, clear as daylight:

Specifically, in the TPP we are seeking:

- Requirements to adhere to fundamental labor rights as recognized by the International Labor Organization, as well as acceptable conditions of work, subject to the same dispute settlement mechanism as other obligations in TPP;

A very similar line characterizes the US Trade Representative's efforts to include enforceable environmental standards in TPP.

Read that again. Not only is the administration fighting for the strongest labor standards of any trade deals in history - demanding that TPP labor standards conform with those defined by the International Labor Organization (that means the unfettered right to organize, along with some protections even stronger than current US law), but the United States is also insisting on labor dispute resolution as enforceable and as binding as other parts - investor dispute settlement, for example.

Since no one - not me and not Sen. Warren - has a copy of the finished TPP (because, well, it's not finished yet), it is difficult to tell whether the administration is seeking to allow labor organizations and environmental groups access to the ISDS process or whether it is seeking the establishment of an enforcement body with equal legal force under TPP. Either way, Warren's characterization of the ISDS process as something special reserved only for privileged corporations looking to poison your gasoline is both patently false and blatantly ridiculous.

As I said at the outset, I generally like Sen. Warren. She has, however, stepped onto the la-la land of ideologue Leftist obstructionism to the president's progressive agenda. That she is doing it with the heft of lies and mistruths that have come to be the sharpest weapons of both ideological extremes looking to impede progress - it stands to be mentioned that the dispute resolution fearmongering is one area bringing together the president's Lefty chestpounding detractors and the Right's most racist, nationalist voices - only makes it worse.

I expected better.

I will be writing more about the TPP, and to that end I am joining an OFA policy conference call on the TPP.

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The TPP Education Project, Preface: Questions of "Fast Track", "Secret Deal" and NAFTA

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