What Investor State Dispute Settlement Looks Like

So you say you’re in favor of “Free” Trade and the acronym trade agreements and I and others have told you that it’s just an excuse for the oligarch corporatist anti-democratic coup.


TransCanada to Sue U.S. for Blocking Keystone XL Pipeline
By IAN AUSTEN, The New York Times
JAN. 6, 2016

TransCanada said on Wednesday that it would seek $15 billion in damages over the Obama administration’s decision to cancel the company’s Keystone XL pipeline project.

The company is taking the unusual step of suing through the North American Free Trade Agreement, calling the decision “arbitrary and unjustified.” The Canadian business also filed a lawsuit in Houston asking that the decision be overturned.

The Nafta challenge process does not allow Canadian or Mexican companies that believe they are being discriminated against by the United States government to overturn decisions. But the measure, which grew out of earlier trade provisions to compensate corporations after a foreign government expropriated their assets, does allow them to seek a range of damages, including unrealized profits.

Trade experts were reluctant to speculate on TransCanada’s case, which will be heard through an arbitration process outside the American judicial system.

“The rules themselves are so vague by design that practically every case is a crap shoot,” said Robert Stumberg, an international law professor at Georgetown University.

Lori Wallach, the director of Public Citizen’s Global Trade Watch and a longtime critic of provisions that allow corporations to seek damages through trade agreements, said that TransCanada was bringing its case at a time when panels that hear such disputes seem increasingly more willing to rule against governments.

“We’ve really dodged the bullet to date,” she said. “It’s not because we have great laws.”

Yes, unrealized profits. And who decides that and what amount? Corporate Captive Courts who are answerable to nobody except their corporate masters who cut their pay checks.

Keystone XL company takes legal action after Obama ‘overstepped authority’
by Suzanne Goldenberg, The Guardian
Wednesday 6 January 2016 19.26 EST

“TransCanada asserts the US administration’s decision to deny a presidential permit for the Keystone XL pipeline was arbitrary and unjustified,” the company said in a press release.

It was far from clear, however, whether the suits would get the pipeline built, given record low oil prices and the election of a new government in Canada which is trying to set a more climate-friendly policy.

With oil prices falling to an 11-year low of $35 a barrel on Wednesday, many experts believe the Keystone XL project may no longer be economically viable.

TransCanada said in a statement that it had had every expectation that the project would be approved during the permitting process – and alleged that Obama’s rejection was swayed by politics, not the merits of the pipeline.

“The denial reflected an unprecedented exercise of presidential power and intruded on Congress’s power under the constitution to regulate interstate and international commerce,” TransCanada said.

Bill McKibben, the founder of 350.org, which led the protests, predicted TransCanada was unlikely to be successful.

“This isn’t going to get the pipeline built,” he said. “The idea that some trade agreement should force us to overheat the planet’s atmosphere is, quite simply, insane.”

Well, to normal people it’s insane, but to Beltway Lobbyists and the Law Makers that listen to them it makes perfect sense. Like being paid not to grow crops.

TransCanada Announces It Will Sue U.S. Over Keystone XL Denial
by Samantha Page, Think Progress
Jan 6, 2016 5:57 pm

In the notice to submit a claim for arbitration, TransCanada notes that two previous pipelines, carrying oil from the same tar sands region across the U.S. border, were both approved. This, TransCanada claims, suggests that the denial was political in nature, which is prohibited under NAFTA.

“Environmental activists … turned opposition to the Keystone XL Pipeline into a litmus test for politicians—including U.S. President Barack Obama — to prove their environmental credentials. The activists’ strategy succeeded,” TransCanada states in its filings. “Stated simply, the delay and the ultimate decision to deny the permit were politically-driven, directly contrary to the findings of the Administration’s own studies, and not based on the merits of Keystone’s application. The Administration’s actions violated U.S. obligations under the North American Free Trade Agreement (“NAFTA”).”

The company even headed the notice with a quote from White House Press Secretary Josh Earnest: “I would venture to say that there’s probably no infrastructure project in the history of the United States that’s been as politicized as this one.”

Secretary of State John Kerry, who oversaw the denial, said in a statement that the State Department found that the pipeline’s construction “raises a range of concerns about the impact on local communities, water supplies, and cultural heritage sites,” and would “facilitate transportation into our country of a particularly dirty source of fuel.”

“This isn’t going to get the pipeline built, and it is going to remind Americans how much of our sovereignty these treaties give away,” 350.org founder Bill McKibben said in a statement. “The idea that some trade agreement should force us to overheat the planet’s atmosphere is, quite simply, insane.”

Sovereignty. Hmm… What does that mean anyway?

This NAFTA Lawsuit over Keystone XL Proves “Free Trade” Deals Kill Democracy
by Sarah Lazare, Common Dreams
Thursday, January 07, 2016

The climate justice movement that successfully pressured the president to reject the mammoth pipeline project responded on Thursday by characterizing the move as “pathetic” and saying the legal argument being deployed by the company underscores the undemocratic nature of so-called “free trade” deals.

“This isn’t going to get the pipeline built, and it is going to remind Americans how many of our rights these agreements give away,” Bill McKibben, 350.org co-founder, said in a statement. “The idea that some trade agreement should force us to overheat the planet’s atmosphere is, quite simply, insane. But the oil industry is so used to always winning that I fear this kind of tantrum is predictable. Corporate power is truly out of control.”

The corporation said it has filed a “filed a Notice of Intent to initiate a claim” under the Investment Chapter of NAFTA—on the grounds that “the denial was arbitrary and unjustified.” Investor-state dispute settlement (ISDS) provisions, which are in thousands of free trade deals, allow corporations to circumvent national legal systems to levy lawsuits in parallel tribunals if state actions threaten their profits.

“TransCanada has been unjustly deprived of the value of its multibillion-dollar investment by the U.S. administration’s action,” said the firm, announcing it is seeking a stunning $15 billion in damages.

“With a single press release, TransCanada has proven what concerned citizens have argued for decades—that the primary purpose of ISDS is to subvert democratic processes and the public interest, in the name of private profit,” Carroll Muffett, president of the Center for International Environmental Law, said on Thursday. “It has demonstrated to the citizens of the United States, and the world, why these provisions have no place in new trade agreements.”

“We encourage the Obama administration to share a copy of TransCanada’s notification with every member of Congress and every US state legislator as evidence of just what the TransPacific Partnership and the Trans-Atlantic Trade and Investment Partnership have to offer them,” Muffett continued. “Millions of people were galvanized into action to stop the Keystone XL pipeline and to say, clearly and loudly, that it is not in the national interest. TransCanada demonstrates why ISDS demands the same response.”


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