The Zombie Deals- TTIP and TPP

The reason I call them Zombie Deals is that by all accounts, they’re dead Jim dead! On the other hand it doesn’t pay to underestimate the power of the D.C. Neoliberal Consensus to resurrect incredibly bad ideas that benefit only their Billionaire Paymasters and International Mega-Corporations. How many times does the Debt/Deficit Hawk Grand Bargain Plan for privatizing or eliminating our meager Social Safety Net have to be staked through the heart, decapitated, and torn to dust by the sunlight of truth before the Beltway Bozos and their Media Jesters get it?

Is it any wonder they need brains? Theirs have rotted away.

Let’s take the easiest case first. If the Germans say Nein and the French say Non I’d have to say that the prospects of the Transatlantic Trade and Investment Partnership (TTIP) being ratified by the European Union are somewhere between none and demanding apologies for making them look as stupid, venal, and corrupt as we are.

France demands an end to TTIP talks
by Sean Farrell, The Guardian
Tuesday 30 August 2016 04.56 EDT

Matthias Fekl, the French minister for foreign trade, tweeted that his government demanded negotiations on the Transatlantic Trade and Investment Partnership (TTIP) should cease.

France has been sceptical about TTIP from the start and has threatened to block the deal, arguing the US has offered little in return for concessions made by Europe. All 28 EU member states and the European parliament will have to ratify TTIP before it comes into force.

Fekl’s statement follows similarly gloomy comments from the German economy minister, Sigmar Gabriel. He said on Sunday: “The negotiations with the United States have de facto failed, even though nobody is really admitting it.”

Gabriel’s views were at odds with public comments by the German chancellor, Angela Merkel, who said last month that the proposed US-EU deal was “absolutely in Europe’s interest”.

However, Gabriel, who leads Germany’s centre-left Social Democratic party and is vice-chancellor in Merkel’s coalition government, said: “We mustn’t submit to the American proposals.”

Gabriel said on Sunday that in 14 rounds of talks on the transatlantic pact, the two sides have not agreed on a single common item out of the 27 chapters being discussed. His spokesman blamed lack of movement by the US and said Gabriel had concluded there would not be a deal this year.

Michael Froman, US trade representative, and Barack Obama remain optimistic.

Among our Trans-Pacific Partnership partners, support is very shaky in Canada with Mexico and Chile on the fence awaiting election results (Why? Hillary says she is every bit as much against it as Trump. One of them will almost surely win. Do they know something we don’t?). Opposition in Japan and Australia is very strong and could bring down their governments if U.S. passage seems likely. In the mean time all the Far Eastern participants are seeking Regional Comprehensive Economic Partnerships, or RCEPs.

Almost all include China and why shouldn’t they? For the most part China is a much bigger market for them than we are.

Oh, you want to maintain the United States’ Imperial Hegemony? That slow boat has sailed along with all the Tea.

Did President Obama Threaten National Security in Negotiating the Trans-Pacific Partnership?
By Dean Baker, Truthout
Monday, 29 August 2016

The latest line from proponents of the Trans-Pacific Partnership (TPP) implies that President Obama threatened long-standing national security relationships in his negotiating of the TPP. These proponents are not pushing the economic merits of the TPP, but rather arguing that its rejection by Congress would jeopardize longstanding ties between the United States and Asia. The claim is that if Congress is not prepared to approve the TPP, then countries like Japan and South Korea will no longer be able to rely on defense commitments that have been in place for more than half a century.

The idea is that if the US won’t follow through on a trade pact that is has spent almost eight years negotiating, then how can it be counted on to honor its defense commitments to the countries of the region.

If this claim is taken at face value, it implies that President Obama was unbelievably irresponsible in negotiating the TPP. He knew that many aspects of the deal would be highly controversial. For example, the deal includes no enforceable provisions to prevent the sort of currency management by China and other countries that have been the major cause of the country’s $500 billion (2.8 percent of GDP) annual trade deficit.

The deal also includes provisions that make patent and copyright protection longer and stronger. These provisions will lead to higher prices for prescription drugs and other protected items in other countries, and possibly the United States as well. In addition, more money for the drug companies and entertainment industry in royalties means that our trading partners will have less money to spend on US manufactured goods.

In addition, the TPP provides for the creation of investor-state dispute settlement tribunals — extra-judicial bodies that give special privileges to foreign investors — including foreign subsidies of US corporations. These tribunals will be able to override US laws at all levels of government.

For these and other reasons, President Obama surely knew that the TPP would be highly controversial when it was debated before Congress. Is it really plausible that he did not make it clear to our negotiating partners that he couldn’t guarantee approval of the final agreement?

The proponents of the TPP would have us believe that President Obama told our trading partners that approval of the TPP was a slam dunk. That they could count on congressional approval in the same way that they could count on Congress to honor its military commitments in the region. That one doesn’t sound very likely.

In the lack of plausibility department we are also asked to believe that the governments in the region are incredibly ignorant about the state of US politics. The TPP has been a hot item for debate long before Congress voted to grant fast-track authority in the summer of 2015. It has continued to be a major issue in the presidential primaries of both parties. Is it plausible that the staffs of the Japanese, Vietnamese and other embassies of the TPP countries somehow missed these debates or failed to report back to their governments on how contentious the pact is?

That one hardly passes the laugh test. Surely these embassies are staffed by competent and intelligent people. It is precisely their job to follow debates like the one on the TPP and to report back to their governments. While the governments of the other countries in the TPP may be disappointed by the decision of Congress not to approve the pact, it is inconceivable that they would be surprised by it.

There is an alternative hypothesis that makes far more sense. The Obama administration, along with other supporters of the TPP, doesn’t feel it can sell the deal based on its merits as an economic pact. Therefore they are inventing a national security rationale for the TPP that does not exist.

In fact there’s a strong case to be made that the TPP is actually a threat to United States National Security.

The national security case against TPP
By Brigadier General John Adams, The Hill
August 17, 2016, 01:11 pm

I’ve long considered arguments for trade deals as national security strategies, including arguments for the TPP specifically as a “way to keep the peace in the Pacific” and counter China as it “flexes its economic and military muscle.” While I respect President Obama and the pact’s military backers, I believe these arguments miss a crucial point: By facilitating the further offshoring of America’s manufacturing base, the trade pact would actually undermine America’s military readiness and global economic standing. TPP would hurt our national security interests more than it would help.

In 2013, the Pentagon’s Defense Science Board put forward a remarkable report (.PDF) describing one of the most significant but little-recognized threats to US security: deindustrialization. The report argued that the loss of domestic U.S. manufacturing facilities has not only reduced U.S. living standards but also compromised U.S. technology leadership “by enabling new players to learn a technology and then gain the capability to improve on it.” The report explained that the offshoring of U.S. manufacturing presents a particularly dangerous threat to U.S. military readiness through the “compromise of the supply chain for key weapons systems components.”

I think even more importantly that the non-negotiable lynchpin of the TPP, the Investor/State Dispute Settlement program, is a direct assault on democracy amd United States sovreignty.

Framing Votes for TPP as the Surrender of National Sovereignty (i.e., Treason)
by Lambert Strether, Naked Capitalism
August 29, 2016

The left critique on TPP starts with how it hurts labor, and moves on to how it hurts the environment. The difficulty here is that these critiques don’t appeal to the right, and it will take left and right, ganging up, to defeat the party establishments on TPP. I would like to suggest that a focus on national sovereignty — more concretely, framing the proponents of TPP as traitors — is a better approach, because left and right can agree on it.

Why the Proponents of TPP Are Traitors

There are two reasons: First, they consciously seek to weaken the national defense. And second, the Investor-State Dispute Settlement (ISDS) system is a surrender of national sovereignty.

National Defense

This might be labeled the “Ghost Fleet” argument, since we’re informed that Paul Singer and Augustus Cole’s techno-thriller has really caught the attention of the national security class below the political appointee level, and that this is a death blow for neoliberalism. Why? “The multi-billion dollar, next generation F-35 aircraft, for instance, is rendered powerless after it is revealed that Chinese microprocessor manufacturers had implanted malicious code into products intended for the jet” (Foreign Policy). Clearly, we need, well, industrial policy, and we need to bring a lot of manufacturing home.

So, when I framed the issue as one where pro-TPPers “consciously seek to weaken the national defense,” that’s exactly what’s going on. Neoliberalism, through offshoring, weakens the national defense, because it puts our weaponry at the mercy of fragile and corruptible supply chains. Note that re-industrializing America has positive appeal, too: For the right, on national security grounds; and for the left, on labor’s behalf (and maybe helping out the Rust Belt that neoliberal policies of the last forty years did so much to destroy.

ISDS

The Investor-State Dispute Settlement system is a hot mess (unless you represent a corporation, or are one of (a) tiny fraternity of international corporate lawyers who can plead and/or judge ISDS cases).

Here again we have a frame that appeals to both right and left. The very thought of surrendering national sovereignty to an international organization makes any good conservative’s back teeth itch. And the left sees the “lost profits” doctrine as a club to prevent future government programs they would like to put in place (single payer, for example). And in both cases, the neoliberal doctrine of putting markets before anything else makes pro-TPP-ers traitors. To the right, because nationalism trumps internationalism; to the left, because TPP prevents the State from looking after the welfare of its people.

Now, when we think about how corrupt the political class has become, it’s not hard to see why Obama is confident that he will win. (Remember, “[T]he preferences of economic elites have far more independent impact upon policy change than the preferences of average citizens do.”) However, if the anti-TPP-ers raise the rhetorical stakes from policy disagreement to treason, maybe a few of those 80 representatives will do the right thing (or, if you prefer, decide that the reputational damage to their future career makes a pro-TPP vote not worth it. Who wants to play golf with a traitor?)

Conclusion

I hope I’ve persuaded you that TPP is still very much alive, and that both Obama in the lame duck, and Clinton (or even Trump) when inaugurated have reasonable hopes of passing it. However, I think raising the ante rhetorically by framing a pro-TPP vote as treason could help sway a close vote; and if readers try that frame out, I’d like to hear the results (especially when the result comes from a letter to your Congress critter). Interestingly, Buzzfeed just published tonight the first in a four-part series, devoted to the idea that ISDS is what we have said it is all along: A surrender of national sovereignty.

ISDS is also an economic betrayal. If I hadn’t reluctantly come to the conclusion that the Iron Law of Institutions (people seek to enhance their positions within Institutions, not advance the agenda of Institutions) did not apply inside the Beltway Neoliberal Consensus (unless you consider the Consensus the Institution and not Government or the Media) I would have bet you a Nickle that no Third Article Court would rule an arrangement like ISDS Constitutional.

The reason is because ISDS asserts superiority over the Supreme Court. I thought we had settled this with Marbury v. Madison, John Marshall is spinning in his grave like a top.

But it’s not just hurt fee-fees, the economic consequences of ISDS could be quite serious, even for a Hegemon like the United States.

The Big Problem With The Trans-Pacific Partnership’s Super Court That We’re Not Talking About
by David Dayen, Huffington Post
08/29/2016 08:48 pm ET

A secretive super-court system called ISDS is threatening to blow up President Barack Obama’s highest foreign policy priority.

Investor-state dispute settlement — an integral part of the Trans-Pacific Partnership trade deal — allows companies to sue entire countries for costing them money when laws or regulations change. Cases are decided by extrajudicial tribunals composed of three corporate lawyers. Buzzfeed, in a multi-part investigation launched Sunday, called it “the court that rules the world.”

Although the ISDS process has existed for years, TPP would drastically expand it. The most common criticisms of the system are that it’s secret, that it’s dominated by unaccountable big-firm lawyers, and that global corporations use it to change sovereign laws and undermine regulations. That’s all true.

But here’s what most of the coverage and the critics are missing.

ISDS is meant to give companies confidence that if a country seizes their accounts or factories, they’ll have a fair, neutral place to appeal.

But instead of helping companies resolve legitimate disputes over seized assets, ISDS has increasingly become a way for rich investors to make money by speculating on lawsuits, winning huge awards and forcing taxpayers to foot the bill.

Here’s how it works: Wealthy financiers with idle cash have purchased companies that are well placed to bring an ISDS claim, seemingly for the sole purpose of using that claim to make a buck. Sometimes, they set up shell corporations to create the plaintiffs to bring ISDS cases. And some hedge funds and private equity firms bankroll ISDS cases as third parties — just like billionaire Peter Thiel bankrolled Hulk Hogan in his lawsuit against Gawker Media.

It’s the same playbook that hedge funds were following when they bought up Argentine, Puerto Rican and other U.S. housing debt for pennies on the dollar. As The Huffington Post reported in May, the financiers were betting they could use lawsuits and lobbying to influence the political system in favor of the creditors like them and reap huge rewards.

Indeed, the damage of ISDS goes far beyond the money that investors manage to extract from public coffers and extends to the corruption of a political system by investors who buy off scholars, economists and politicians in pursuit of whatever policy outcome leads to a payoff. And there’s nothing stopping plutocrats with agendas that go beyond profit-making from getting involved ― again the way Thiel did with Gawker.

Here’s an example. In 2008, the Spanish government, under pressure from the eurozone to cut its budget during the financial crisis, began to reverse generous subsidies for solar energy. Spain reduced support for solar in stages. It changed the definition of its main solar incentive program in 2008, reduced the subsidies through two measures in 2010, placed a moratorium on subsidies for new solar plants in 2011, and added further restrictions in 2013.

Renewable energy activists could only shout into the air. But a group of investors hatched a plan.

Between November 2011 and December 2013, 22 different companies sued Spain in seven different cases over the subsidy changes – not in Spanish courts, but using ISDS.

RREEF, an investment fund subsidiary of Germany’s Deutsche Bank, and Antin, a private equity firm owned by French bank BNP Paribas, purchased their Spanish solar-thermal power plants in 2011, three years after the country began to roll back subsidies. But when they went to ISDS, they claimed they had expected subsidies to continue — not to continue declining.

“It feels like they acquired [the solar plants] in order to sue,” said Lora Verheecke, a campaigner for Corporate Europe Observatory, a Brussels-based research organization. Those two cases are still pending; a tribunal order allowed the RREEF case to advance in June.

The facts suggest that these investment funds made their purchases based not on the potential success or failure of the business they bought, not out of a concern for climate change and its consequences, but with the expectation that the Spanish government would continue its subsidy rollback, allowing the funds to sue in a special court unavailable to Spanish citizens.

Spain isn’t the only government defending these sorts of ISDS claims. Poštová Banka of the Czech Republic bought sovereign debt from Greece in early 2010, well after rating agencies had downgraded the nation’s bonds. Two years later, after European leaders forced a restructuring of all Greek government bonds, Poštová and its shareholder, Istrokapital of Cyprus, filed an ISDS claim, contending that the restructuring cost them millions.

Maybe Poštová bought the distressed bonds knowing that it could use arbitration as a fallback. Or maybe it bought the bonds with the intent to sue and gain a favorable return on its money through ISDS.

In several other cases, investors appeared to opportunistically purchase a company that had the ability to file an ISDS claim at exactly the right time.

In 2004, through one of its investment funds, the French bank Société Générale purchased a 50 percent stake in a public-private partnership to distribute electricity in the Dominican Republic. The purchase included intermediary companies from California, Delaware, Nevada and the Cayman Islands, and the corporate structure is nearly impossible to ascertain. Because of the complex structure, the listed purchase price was only $2 U.S. (SocGen explained to arbitrators that it also arranged a “deferred purchase fee”). And the heart of the dispute ― the Dominican Republic’s alleged failure to pay negotiated compensation ― occurred years before SocGen made its purchase, according to the country, which argued SocGen was merely “buying a claim.”

Nonetheless, an ISDS tribunal ruled that “the principal objective of the transaction was the potential profitability of the investment.” It found that the Dominican Republic’s violations were ongoing and, through a settlement, awarded SocGen $26.5 million.

Under English common law, financing someone else’s lawsuit, known as champerty, was illegal. But the modern version of that, litigation finance ― which began in Australia in the 1960s ― has spread widely over the past two decades. Investors seeking higher returns on their savings have looked to courtrooms instead of stocks or bonds, agreeing to bankroll cases and taking a portion of the cash awards if they win.

Third-party funding shields corporations from the upfront costs of litigation, making it easier to sue. Since companies generally don’t have to disclose that they’ve received third-party funding for an ISDS case, and since international arbitration usually proceeds in comparative secrecy, pursuing a claim through ISDS can shield companies from the public criticism that accompanies challenging a law in regular courts. “You can actually ask for enormous amounts of money without anybody criticizing you,” said Verheecke of Corporate Europe Observatory.

With ISDS permitted under some 3,000 treaties, there are a huge number of opportunities to sue. And “unlike some other legal systems, the default remedy is a cash payment,” said Todd Tucker, a fellow at the Roosevelt Institute with a decade of experience researching trade and investment policy. The awards are also uncapped, meaning they can be enormous. If a corporation sought damages on future profits in perpetuity and the arbitrators agreed, the sovereign would have no recourse. Dozens of cases have resulted in awards of over $100 million, according to a 2016 report from van Harten, the law professor.

Those possibilities have the ISDS claim-financing industry booming. Hedge funds, private equity firms and institutional investors are flocking to fund lawsuits as they would any other speculative asset, according to experts in the field. And the lack of transparency means that lawyers acting as arbitrators or advocates in one case could be unnamed investors in other cases, and nobody would ever know.

Defenders of ISDS argue that the outcome of any case is uncertain and that companies win only about one-quarter of the time. But that’s only the cases that have been publicly identified and it doesn’t include settlements, where the corporation can also extract a monetary award. If funding ISDS suits was really such a bad bet, the industry probably wouldn’t be expanding so quickly.

Often, the best country for international investors to sue is one that’s already in trouble. When a country uses emergency economic measures to protect its citizens, investors can argue that those measures conflict with an existing trade treaty. The subsequent flood of lawsuits can further hurt the country’s credit ratings and raise the cost of capital, while undermining its ability to attract future investment.

No country has been sued more in ISDS tribunals than Argentina. Of the 696 ISDS cases in the United Nations Conference on Trade and Development (UNCTAD) database, at least 59 were brought against that one country. Since late 2001 and early 2002, when it defaulted on international debt and unpegged its currency from the U.S. dollar, Argentina has been forced to pay out $980 million in ISDS awards (.PDF), in addition to the millions it spent to defend itself in arbitration.

Currently, some 60,000 bondholders are using ISDS to seek higher payouts on the value of Argentine debt. They claim they’re due $1 billion in lost profits because of the damaging effect of Argentine government policies.

Although bondholders are not traditional investors ― in the sense that they don’t actually build factories or sell services in a host country, they too have repeatedly used arbitration to get the highest returns on their debt purchases. UNCTAD has warned that if those holding bonds that have lost value can access the ISDS back door to sue countries for monetary damages, then no country could ever escape its debt.

Once a venue of last resort for corporations wronged in a foreign jurisdiction, ISDS is now a playground where investors with no connection to the initial investment can get rich. Even the arbitrators seem to be growing queasy at the prospect of investors using ISDS like a casino parlor.

Giving financiers the ability to extract taxpayer dollars from around the globe transfers wealth upwards. It’s another way the rich get richer by accessing tools unavailable to most citizens. That has massive follow-on effects for economic and political power worldwide, including right here in the U.S.

Now, upcoming trade agreements would dramatically expand this system. Public Citizen estimates that 9,000 new companies would gain ISDS rights to sue the United States under TPP alone. That’s 9,000 new opportunities for financiers to reach down into state and local coffers, in addition to the federal government, to grab cash. TPP would also expand the “minimum standard of treatment” clause, which sets up the most flexible type of ISDS claim, to cover financial services companies, meaning almost any change in the expected future profits of a bank could be challenged. “TPP was a win for the banks on ISDS,” said van Harten, the law professor.

Finally, it’s a law and order issue.

‘Trade Deals’ & Corporate Sovereignty: How Convicted Executives Escape Punishment
by Mike Masnick, Tech Dirt
Mon, Aug 29th 2016 11:44am

Okay, we’ve been trying to raise the alarm bells about “ISDS” — “Investor State Dispute Settlement” — systems for many, many years, even helping to push the term “corporate sovereignty” to help describe it, since people’s brains seem to turn to mush when you spell out ISDS. We’ve pointed out over and over again the problems of such a system where it basically allows companies to sue countries for passing regulations they don’t like. We’ve noted over and over and over again how problematic this is… and yet people still tell us it’s no big deal and the system is fair and “necessary” to keep countries from doing things like simply nationalizing an industry that foreign companies build up. Of course, that doesn’t happen that often. ISDS corporate sovereignty cases are happening quite frequently, over subjects like Eli Lilly being upset that Canada rejected some patents and Philip Morris suing lots of countries for passing anti-smoking health regulations.

Thankfully, Chris Hamby, an excellent investigative reporter with BuzzFeed, has done a massive detailed investigative report into the ISDS corporate sovereignty system and what a complete disaster it is. Much of this was assumed before, but many of the ISDS cases are done in complete secrecy, so there are few details out there. Hamby’s reporting, though, will hopefully change that.

You know how we’ve written about the whole “high court, low court” thing where those in power and with connections get treated differently in court than those without? Well, consider the ISDS corporate sovereignty system an international version of the high court. You can only access it if you’re a company, but it’s also used, repeatedly, to protect executives who have been convicted of crimes for actions by companies.

(D)on’t buy the claim that the “newer” versions of ISDS found in agreements like the TPP and the TTIP are somehow better and have fixed the problems of the old ones. The BuzzFeed report notes that there are massive loopholes, and lawyers are already preparing their clients on how to exploit them, should the TPP get ratified. As for the claim that ISDS must be fine because the US has never lost a case — according to the report, that’s basically mostly been luck, and it’s unlikely to hold up much longer.

But, really, it’s the escaping criminal charges stuff that’s eye-opening in this first report.

Another key point in the report is that the talking point from ISDS defenders that governments win more ISDS cases than companies is basically bullshit.

Hopefully things like this will start to wake people up to just how incredibly bad ISDS corporate sovereignty provisions really are. They’re not just some obscure system that involves big companies fighting. They’re becoming an alternative court system for the super powerful and connected — and letting them literally get away with criminal behavior.

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