Why Exactly Do We Need To 'Protect' US And EU Foreign Investments Through TAFTA/TTIP Anyway?

from the risky-business dept

Wed, Jan 15th 2014 12:19am — Glyn Moody

Techdirt has already examined the issue of corporate sovereignty many times over the past year, as it has emerged as one of the most problematic areas of both TPP and TAFTA/TTIP. A fine article by Simon Lester of the Cato Institute examines a hidden assumption in these negotiations: that an investor-state dispute settlement (ISDS) mechanism is needed at all.

Most of his post is devoted to the background of corporate sovereignty, and it provides a useful primer if you're still wondering what exactly ISDS is supposed to do, and why. Having established the framework, Lester concludes by making two key points:

First, if a U.S. (or EU) company chooses to make an investment abroad, why should the U.S. (or EU) government go to bat for it at all? In the past, we used "gunboat diplomacy" to protect our companies. Now we use international lawyers. But why should we do anything? These companies have chosen another jurisdiction for their investment, which is fine. Companies should invest in whatever location makes the most economic sense. But in that situation, it is not clear why the investment is "ours" to worry about anymore. When multinationals invest all over the world, are they really "ours," or are they now just global entities?

Business is inherently about taking risks -- if there were no risk, there would be no need for entrepreneurs. So why should a nation be expected to offer a kind of free insurance policy against those risks when they are incurred abroad -- not least because commercial policies doing that are readily available? Since fans of the free market think that the government should just get out of the way, surely they should extend this to foreign investment too?

Lester's other point is one that many people have made -- that ISDS is in any case unnecessary in an agreement between the US and EU:

when the place of the investment is the EU or US, which have plenty of their own protections in domestic law, international law seems largely duplicative. International investment rules are an opportunity for lawyers to bring additional claims, but are not necessary for "protection" of foreign investment. Without some evidence that more is necessary, perhaps US-EU investment rules should be limited to a basic promise to treat each other's investors equally, let governments settle disputes between themselves, and leave the international constitutional protections out of it.

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Filed Under: corporate sovereignty, europe, investor state dispute settlements, isds, tafta, tpp, ttip, us

23 Comments

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hidflect (profile), 15 Jan 2014 @ 1:37am

Obamabots
I'd be interested to hear the Obamabots rationale defending BO on this one. They are at least partly to blame for this. Their relentless, delusional defense of Obama endlessly refusing to hold his feet to the fire for the myriad of Corporate friendly courses he's taken. They've held the breakwaters back and allowed the Business Machine to sweep through. Scum.
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Todd Knarr (profile), 15 Jan 2014 @ 2:23am

The ISDS mechanism isn't about protecting companies. It's to give companies a mechanism to remove laws they find... inconvenient.
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Anonymous Coward, 15 Jan 2014 @ 2:37am

It's just more corporate welfare.
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That One Guy (profile), 15 Jan 2014 @ 2:49am

Re: Obamabots
Every. Freakin'. Time...

Stuff like this is not a partisan problem. Both sides are more than happy to dance to their corporate paymasters' tunes, and screw over the public in the process, to pretend that 'It's all those dirty Democrats!' or 'It's all those dirty Republicans!' does nothing more than distract from the core problem: they are both to blame.
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Anonymous Coward, 15 Jan 2014 @ 2:51am

it's needed so as to completely ignore any and all safety nets for the people and allow profits to be pushed to the fore, even when something has been proven to either need more work before release or to be released anyway as holding it back would be more expensive.
in other words, fuck the people, profits are what count the most! and usually, USA companies profits!!
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Anonymous Coward, 15 Jan 2014 @ 3:06am

Top 10 patent filer in the US

International Business Machines Corp
Samsung Electronics Co Ltd
Canon K K
Sony Corp
Microsoft Corp
Panasonic Corp
Toshiba Corp
Hon Hai Precision Industry Co Ltd
QUALCOMM Inc
LG Electronics Inc KR

Source: Wired: Google and Apple Surge Ahead in Race for Patents

7 of the top companies that are filling patents are from Asia.
What would happen if they chose to assert their rights against US interests using US law?

See the law in this case is a liability not an asset for any local economy, only idiots believe they can get ahead in the game by trying to play the rules instead of the game.

What game?
The competition game, the partnership game.
The do as I told you or else will fail eventually.
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Anonymous Coward, 15 Jan 2014 @ 3:35am

Googlepropagandablog.com
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Anonymous Coward, 15 Jan 2014 @ 3:40am

Re:
Mostly decissions, statutes and standing orders. Since they do not exist in a vacuum and the king of EU can just make an emergency law banning all foreign companies immediately, it also needs to cover laws.

The problems with ISDS are not the literal intentions, the problems are the inevitable effects on legal dynamics.
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Anonymous Coward, 15 Jan 2014 @ 4:04am

Re:
So Google would actually benefit from ISDS
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Anonymous Coward, 15 Jan 2014 @ 4:51am

Re: Obamabots
Having just read blather from a FoxNewsbot, I have no desire to explore partisan bullshit.
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Anonymous Coward, 15 Jan 2014 @ 4:55am

Their words are cheap and completely opposite their actions, mostly. The sad thing is, they do not recognize this as being untruthful. Compulsive liars they are.
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Anonymous Coward, 15 Jan 2014 @ 5:49am

Re: Re: Obamabots
Indeed, that's the problem right there. Obama may be very cozy up with big corporate funders, but you're delusional if you think most Republican politicians aren't exactly the same, or in many cases even worse.
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art guerrilla (profile), 15 Jan 2014 @ 6:21am

here's the nub of the dilemma...
you posit why such positions would be taken when they are inimicable to the interests of the 99%...
(you POS spel-czech, INIMICABLE is TOO a word! ! !)

well, you've answered your own question: because thisy here ball-o-mud is NOT run for the interests of us 99%, but the interests of the 1%...
that's our problem in a nutshell...
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Anonymous Coward, 15 Jan 2014 @ 6:36am

Re:
Nothing deserves protection, when it comes to Perceprional Property. Not even Google.
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artp (profile), 15 Jan 2014 @ 6:43am

When did awareness of the new Big Three change?
It used to be the USA, the Soviet Union and China. Since the Soviets took a nosedive in 1989, two new powers crept in as the USA also became a puppet. [We lost our focus because we didn't know who our enemies were any more. Really, Nixon making nice with the Chinese started it, but it accelerated after the corporate terrorists took over.]

So now we have China, corporate terrorists and third world terrorists.

When did people start recognizing the threat from the corporate world? I've been beating that drum since at least the 90s.
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jupiterkansas (profile), 15 Jan 2014 @ 7:39am

"Why should a nation be expected to offer a kind of free insurance policy against those risks when they are incurred abroad?"

Maybe because said nation created those risks with their awful foreign policy?
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Pragmatic, 15 Jan 2014 @ 8:10am

Re: Re:
"King of EU?"

Excuse me? Please, please tell me you don't think Europe is an actual country. I need to hear it!

Europe is a CONTINENT made up of different sovereign states. Some of these sovereign states, e.g. the UK, are members of the European Union, a trading bloc that is working towards political union via legislation passed by the European Parliament.

So now you know, AC.

@Glyn Moody

Companies should invest in whatever location makes the most economic sense. But in that situation, it is not clear why the investment is "ours" to worry about anymore. When multinationals invest all over the world, are they really "ours," or are they now just global entities?

Methinks you just answered your own question, sir. If they don't put into the pot, they shouldn't get anything out. And corporations who don't pay tax but demand taxpayers' resources such as war against sovereign nations to protect their interests are counter-intuitive to sound economics. It's just the MIC giving freebies to their cronies. And it's not new. See Iran's 1953 coup for details. I'd be interested to learn how much, if any, of the spook/military expenditure was recouped from their tax contributions.

A cost/benefit study prior to taking up the causes of these global corporations might be in order prior to taking up arms against a sovereign nation on their behalves. We the people are the ones who end up with the bill for these costly adventures, after all.

By the way, I'm not sure it's reasonable to refer to the free market as if it actually exists. There's no such thing, since the market is actually distorted by monopolies and oligopolies, not to mention restrictive legislation and subsidies.
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Pragmatic, 15 Jan 2014 @ 9:01am

Re:
Where's the "Sad but true" button? I want to press it.
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Anonymous Coward, 15 Jan 2014 @ 9:28am

Re: Re: Obamabots
This is a partisan problem. The fact that both parties have the same issue but neither are willing to hold their own party members accountable, as hidflect described, IS the problem and that's absolutely a symptom of partisanship.
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Anonymous Coward, 15 Jan 2014 @ 9:32am

Re: Re: Re: Obamabots
That still doesn't justify refusing to hold Obama accountable for his own actions. It's like a small child that, when caught in the act, responds with 'but my sister/brother did something even worse!' It's transparently trying to throw a third party under the bus to weasel out of the consequences of their own actions.
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Ricnard Lyon (profile), 15 Jan 2014 @ 10:02am

Neoliberal Ploys
The notion that the international entrepreneurs want the major governments to just get out of the way entirely is strictly for public consumption. In practice the strategy is to control the government and its resources for their benefit. The classic example of this is the bailout of the banks in the financial crash. The pure libertatian approach would have been for the government to stand aside and let them fail.
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That One Guy (profile), 15 Jan 2014 @ 10:21am

Re: Re: Re: Obamabots
Only because people keep falling for it. Every time they manage to shift the argument away from 'Person X did Y', and onto 'Person X, who is a democrat/republican did Y' it takes the focus off of the real issue, what was done, and suddenly places the blame on the party of the one who did it, as though that was where the real blame lay.

Who cares what political party a person/group belongs to when they do something questionable/objectionable, if the action is a problem, it's a problem whether it's a republican backing it, or a democrat, and vice versa, getting fixated on the political party just misses the real issue, something they know, and bank on, quite well.
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Pragmatic, 16 Jan 2014 @ 8:30am

Re: Neoliberal Ploys
I hate neoliberalism and neoconservatism. Neither group actually does what they claim to be about.
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