Leaked TPP Investment Chapter Reveals Serious Threat to User Safeguards

From what I understand, TPP isn't about US vs. EU, it's about standardizing the global rules for business. Obviously, businesses have a disproportionate say in what gets in, and so they're asking for everything they can think of.

ccvannorman• 11 years ago

if by "a disproportionate say" you mean "the public only learned about it because the documents were illegally leaked, and it would have passed totally in secret with only corporations and politicians at the helm otherwise", then yeah.

sandstrom• 11 years ago

I'd argue it hurts both, for the following reasons:

    1. It's conducted in secret, i.e. people aren't allowed to learn the content 
    of the negotiations.

    2. From what has leaked so far, it's under heavy influence of lobbying. 
    E.g. the record industry and Disney lobbying for eternal copyright, 
    patent-trolls and big pharma for broader patent scope, etc.

    3. ISDS is a backdoor through which companies can overrule national laws. 
    There are lengthy arguments online on the downsides with this. Besides, 
    it's not like property rights are magically weak in EU/US, they are pretty 
    strong already.

-- I love free trade --

Reduction/removal of tariffs, tolls etc. are great. I'm strongly in favor of that! But this seems to be mostly a lobbying effort, hidden from public scrutiny.

-- What Europeans can do --

If you live in Europe, I'd suggest emailing thoughtful, well-written comments on the TTIP to the commissioner (weak or angry arguments will only hurt the case).

http://ec.europa.eu/commission/2014-2019/malmstrom/team_en

-- What Americans can do --

EFF suggested contacting D.C. representatives.

walterbell2• 11 years ago

These tribunals are usually comprised of three private-sector attorneys who take turns being the judge and the corporate advocate.

Have alternate structures been considered for these extranational tribunals/courts, e.g. who represents the public interest? How would the public grant legitimacy to a secret commercial court which regulates Internet content, for example?

Lawtonfogle• 11 years ago

Why would they consider such? Those who should be representing the public interest in these discussions have clearly been bought out already. And being so secretive, why would they need to even pretend to put in place any safeguards for public interest?

walterbell2• 11 years ago

What will happen when international laws which defy reason start being enforced, and are not understood or supported by the national public or their national legislators?

natch2• 11 years ago

In English, anyone?

It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working.

Maybe an example up front would help. Something like: If this is enacted, then ... (some common use case involving fair use and how it would be impacted).

I know it takes a lawyer to read this stuff. But they should maybe pass it through a couple of layers of translation to try to communicate what it means, so that people can get on board with opposing it, if that's the right thing to do. If EFF can't communicate this stuff, who can?

rosser• 11 years ago

If Anticorporatistan enacts a law that Big Evil Co., Inc. thinks might somehow limit its ability to make a profit, Big Evil Co., Inc. can sue Anticorporatistan for the profits it thinks, at its sole discretion, it would lose because of the new law.

ianlevesque• 11 years ago

With Anticorporatistan being the United States, and laws they don't like being the existing Fair Use protections. It's not a vague future hypothetical.

pdkl953• 11 years ago

The comic[1] that I posted in the previous thread has a nice overview about the situation.

The specific issue the EFF article is pointing out is how the ISDS is designed to trumps national sovereignty, so business can strong-arm countries into removing any law they don't like.

It works more or less like this:

1) pass TPP as a treaty, which by definition has the same power as a constitutional amendment. (this is probably a serious bug in the constitution). This means TPP trums congress.

2) TPP sets up an international tribunal (ISDS) that hears complaints from businesses. (i.e. "Australia is hurting our tobacco sales with their plain packaging laws"[2])

3) The tribunal, as mentioned in this article, would be staffed by, "three private-sector attorneys who take turns being the judge and the corporate advocate." This conflict of interest would be a serious violation of ethics requirements in most legal systems.

4) The tribunal rules that your local law violates some foreign requirement, as determined by the ISDS and their business-assigned judges, and the local legislature is forced to repeal the law. ("Australia's plain packaging laws is seizing the trademarks of Philip Moriss, in violation of a 1993 trade agreement if we carefully abuse the agreement's language")

That's the short version, and I'm leaving out some details, of course. It should work as a decent overview of ISDS is a threat to national sovereignty.

[1] http://economixcomix.com/home/tpp/

[2] this example is covered well by John Oliver: https://www.youtube.com/watch?v=6UsHHOCH4q8

edit: oops.. s/ISPS/ISDS/

rayiner• 11 years ago

Treaties do not have "the same power as a Constitutional amendment." They have the same power as ordinary laws. See: http://en.wikipedia.org/wiki/Head_Money_Cases. And the Constitution takes precedence over both: Reid v. Covert. If they are not self-effectuating and Congress does not pass enabling legislation, they have no domestic effect. See: http://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas.

thinkmassive• 11 years ago

Informative comic, but it could have done without the gun control strawman.

mikecb• 11 years ago

Rayiner already addressed point 1, so I'll take a swing at 3.

Most legal systems, demonstrated here by the ABA model rules of professional conduct for lawyers, would not consider this a conflict of interest, unless the lawyer were arguing for both sides in the same case. See Rule 1.7.

In these tribunals, government and corporate parties aren't two sides of every fight, they're arbitrary categories of parties. All good legal systems allow private parties to bring suit against the government. NAFTA Ch. 11 is an example of a very similar system working well to address legitimate disputes. See cases where a corporation's claim was rejected, and they were forced to pay attorney's fees to the country they sued in the tribunal. Not exactly the outcome predicted here.

nebolo2• 11 years ago

ISDS does not "trump national sovereignty" and in no conceivable way can a business "strong-arm" sovereign entities. This is complete nonsense.

The "tribunals" are arbitral tribunals and as such are manned by lawyers chosen and agreed on by BOTH sides - just like any other arbitral tribunal. They can apportion compensation for damages caused by breaches of international law. No international court can "force" a state to change a law (this is constitution 101), and it is not the case here.

Philip Morris is seeking compensation for the purported expropriation of intellectual property rights (their brand). Almost no-one believes they have any chance of winning. In fact, it seems that they are doing it solely to press for time in other jurisdictions: i.e. some countries are waiting for the result of the arbitration before introducing similar laws. They probably figured out that potential lost profits in foreign markets in that time frame are likely higher than legal fees.

Not one of your points is accurate (and you reference John Oliver and a comic).

torreens• 11 years ago

Wow, I'm really sorry to have to do this after your wrote such a detailed comic, but it is clear you don't have even the most basic understanding of what money is. You commit the most elementary fallacy out there, and worse, it is central to your whole argument. Worse still, you continually harp on "basic errors" and the difference between good and bad economists, while being a quintessential example of a bad economist who makes basic errors.

The most egregious, obvious, and deep-cutting error is that you equate money with wealth, which is made obvious when you contrast "investing in the economy" with "just sitting on the money" as if these were two different things. Money is not goods and services; money is a claim on goods and services. Therefore, hoarding or "just sitting on" money is not hoarding goods and services, but closer to the opposite. It is deliberately not commanding the goods and services one's money could command, freeing up those goods and services to be used by others. Hoarding money is a kind of anti-hoarding of resources; it's exactly equivalent to investing in an index fund over the entire economy.

For his reason, your whole argument is confused. Please consider the nature of money more carefully and stop misleading people.

Note: I'm opposed to the TPP, but most certainly not because it promotes "free trade."

domdip• 11 years ago

Krugman has a less dense explanation of some of these issues here:

http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/...

snowwrestler2• 11 years ago

But do we really think that inadequate incentive to create new drugs or new movies is a major problem right now?

I found this line in Krugman's text surprising, because there actually are a lot of questions about incentives in both drug and entertainment markets.

In drugs, pharma companies are focusing on high-margin "lifestyle enhancing" drug categories like erectile dysfunction, blood pressure management, and various mood and mental management. Basically, the drugs that rich healthy people will pay a lot of money for. Pharma companies are not focusing on low-margin but highly useful categories like antibiotics, pests, and vaccines. Basically, the problems that affect poor people in 2nd and 3rd world countries.

In entertainment, companies are focusing on iterating well-known and well-used franchises for which they know they can drive immediate demand with marketing. Highly original hits like Inception are not nearly as common as they were in say, the 1970s or 1980s. Instead we get Furious 7 and a two remakes of 21 Jump Street.

Don't get me wrong, the drug and entertainment industries are making a lot of money. But the issue is how they are making it. Drug companies stick to first world problems because first world countries protect their IP, so that is where they'll get a return. Entertainment companies stick to movies that will pack the theater on opening weekend because the movie will be heavily pirated within a few days after that.

I'm not crying for the poor drug or movie executives. I'm saying that the rest of us have to live with the consequences of how we incentivize companies to do business.

edit: word fixes

hackuser• 11 years ago

It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working.

The EFF often has this problem, IMHO, and I suspect it limits their ability to build support and awareness. I support the EFF; I'm an interested, knowledgable, well-educated person who is accustomed to reading sophisticated prose -- i.e., I'm their ideal audience -- and I gave up after a paragraph. I think they lose a large part of their potential audience.

Matthew Butternick provides the following excellent advice to writers (which applies to much more than typography): http://typographyforlawyers.com/who-is-typography-for.html

natch2• 11 years ago

Hang on just a minute, everybody.

I guess I wasn't clear myself (while accusing the EFF of being unclear).

My point is, EFF needs to make this more clear.

I'm not asking for more info about it. I think the EFF should help everybody (they aren't all going to dive into this thread, but lots of people do visit eff.org) understand this, by figuring out a way to present it more concisely and clearly, even though it is admittedly a complex issue.

That being said, I am learning a lot from the comments, and maybe a few others are too; that's great.

hurin• 11 years ago

Why do I feel like some of the EFF articles are distinctly one-sided when it comes to certain topics? For example what about illegal government expropriation or interest-based selective-quasi-legal interference in economic affairs (i.e. Yukos) - or rampant ignorance of patent and copyright laws (various Chinese Manufacturers).

Unfortunately when an issue is presented entirely black and white as:

confer expansive powers on corporations and undermine democratic rules

we cannot let such a secretive, corporate-driven agency to pass digital regulations in secret.

etc. etc.

It's hard to come away with any real understanding of the issues at hand.

Disclaimer: I am longtime supporter and EFF member.

snowwrestler2• 11 years ago

I have a similar feeling, but I think the answer is that the EFF is a one-sided organization--their mission is to form opinions on these topics and fight for what they think is right.

I think of them as an "advocacy" nonprofit, and there are plenty of those on the other side as well, trying to make their case against things like government expropriation. The balanced view, to the extent it can exist, would be somewhere between the two sides; each listener synthesizes their own balance point, I guess.

Confusion• 11 years ago

Laws/treaties should not be solely judged based on how they deal with excesses. The point is that the impact on ordinary countries doing ordinary things is extraordinarily large. Looking only at excesses is similar to a "think of the children" or "but TERRORISM!" argument.

Besides, Russia and China aren't going to sign the TPP anyway, so those excesses are actually completely irrelevant to the effect this treaty would actually have.

Leaked TPP Investment Chapter Reveals Serious Threat to User Safeguards

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