Tag Archives: ISDS

‘Ticking Time Bomb’: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

“It’s so unbelievably shocking to see corporate lawyers actively discussing having foreign investors use ISDS to challenge countries over their coronavirus lockdown measures, and try to extract ‘expected future profits’ from them.”

By Jake Johnson, staff writer for Common Dreams. Published 5-20-2020

Lidia Senra speaking against ISDS in the European Parliament in February 2019. Photo: Lidia Senra/Twitter

Prominent corporate law firms representing major businesses in the United States, Italy, Spain, and other nations are openly discussing the possibility of companies using a secretive and notorious legal process to sue countries over future profits lost due to government efforts to combat the coronavirus pandemic.

On Monday, the non-profit research group Corporate Europe Observatory (CEO) documented numerous examples of high-powered corporate law firms—including Ropes & Gray, Alston & Bird, and Quinn Emanuel Urquhart & Sullivan—publicly licking their chops over the lucrative opportunity presented by the Covid-19 crisis and government attempts to fight it. Continue reading

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As CETA Rises from Ashes, Campaigners Vow: ‘The More You Insist, the More We Resist’

Belgium delegates reached 11th-hour consensus, which grants the Court of Justice of the European Union the ability to rule on final inclusion of ISDS

By Lauren McCauley, staff writer for Common Dreams. Published 10-27-2016

Campaigners protested the Canada-European Union trade agreement outside the European Commission on Thursday. (Photo via Corporate Europe/Twitter)

Campaigners protested the Canada-European Union trade agreement outside the European Commission on Thursday. (Photo via Corporate Europe/Twitter)

The controversial Canada-European Union trade agreement that many declared “dead” now appears to be rising from the ashes, as officials announced Thursday that they have reached a last-minute consensus.

Earlier this week, trade delegates from the Belgian region of Wallonia rejected the Comprehensive Economic & Trade Agreement (CETA) out of concern that certain provisions, particularly the Investor State Dispute Settlement (ISDS) system, inflate the power of multinational corporations and undermine standards protecting labor, the environment, and consumers. Continue reading

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The Pipeline Strikes Back: the audacity of TransCanada’s $15b suit against the U.S.

The political saga of the Keystone XL pipeline is like a real-life version of The Force Awakens. So why are we giving the Dark Side even more power?

By Jim Shultz. Published 2-5-16 by openDemocracy

The Empire Strikes Back. Credit: starwars.wikia.com.

The Empire Strikes Back. Credit: starwars.wikia.com.

In case you didn’t notice, the new blockbuster Star Wars film, The Force Awakens, ends pretty much the same way the first one did when it came out in the summer of 1977. The bad guys build a Death Star machine that can kill whole planets, the good guys fight back with pluck and grit, and, just in the nick of time, destroy the machine.

The political saga of the Keystone XL pipeline has followed essentially the same plot. TransCanada (playing the role of the Empire) sought to build a metal tunnel from Alberta to the Gulf Coast to transport oil from the Canadian tar sands. The pipeline, not unlike a Death Star, threatened the planet because it would have amped up carbon emissions and quickened the pace of global climate change. In the Keystone saga, pluck and grit came in the form of protests, lawsuits, arrests, and the encirclement of the White House—the equivalent of a Jedi counter-attack. Continue reading

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Sensing Keystone XL Rejection, TransCanada Scopes NAFTA Lawsuit

Provisions in trade pact may provide legal basis for suing U.S. over tar sands pipeline

Written by Nadia Prupis, staff writer for Common Dreams. Published 8-10-15.

A tar sands site in Alberta, Canada. (Photo: kris krüg/flickr/cc)

A tar sands site in Alberta, Canada. (Photo: kris krüg/flickr/cc)

TransCanada Corporation, the company behind the controversial Keystone XL tar sands pipeline, is furtively planning its next steps—including suing the U.S. government—if U.S. President Barack Obama rejects the permits which would allow construction of the project to move forward, the Canadian Press reported on Monday.

While the company has publicly maintained hope that Obama will grant it permission to build the pipeline, those close to the project say TransCanada expects a rejection and is quietly considering suing the government under the North Atlantic Free Trade Agreement (NAFTA), using articles in the pact that protect companies from discrimination, unfair or arbitrary treatment, and expropriation.

NAFTA also includes a mechanism known as the Investor-State Dispute Settlement (ISDS), which allows corporations to sue a country for damages based on projected “lost profits” and “expected future profits.” As Common Dreams has previously reported, there are no monetary caps to the potential award.

Experts have warned that TransCanada could bring a NAFTA challenge over Keystone XL. Natural Resources Defense Council international program director Jake Schmidt told Politico in February that such a case was “definitely a possibility.”

Derek Burney, former Canadian ambassador to the U.S. and chief negotiator on the trade deal, as well as its U.S.-Canada predecessor, told Politico at the time, “If the pipeline is actually vetoed on so-called environmental grounds, I think there is a very strong case for a NAFTA challenge.”

But would suing the government under NAFTA work? It’s unlikely.

The Canadian Press continues:

The U.S. government has a 13-0 record in NAFTA cases. A suit would likely fail, cost the company a few million dollars, and possibly antagonize the U.S. government, said David Gantz, who was been a panelist on NAFTA cases and who teaches trade law at the University of Arizona.

….But another expert said the company might as well try. She said a recent decision against the Canadian government in the Bilcon case involving a Nova Scotia quarry could give TransCanada some hope.

“Why not? And see where it goes,” said Debra Steger[.]

Another option on TransCanada’s radar is immediately filing another permit application with the U.S. State Department ahead of the 2016 presidential election.

Opponents of the Trans-Pacific Partnership (TPP), a corporate-friendly agreement between the U.S. and 12 Pacific Rim nations which has been described as “NAFTA on steroids,” have cautioned against including an ISDS mechanism in the still-pending deal.

“Given NAFTA’s record of damage, it is equal parts disgusting and infuriating that now President Barack Obama has joined the corporate Pinocchios who lied about NAFTA in recycling similar claims to try to sell the [TPP],” Lori Wallach, director of Public Citizen’s Global Trade Watch, said in February.

Whenever the announcement comes, the source on the project told the Canadian Press, TransCanada will “let it cool for a while. And then we’d have this more vigorous discussion.”

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License.

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