Experts Oppose ISDS Provision in TPP as Contrary to American Legal Traditions

A group of legal heavyweights, including Harvard University's Laurence Tribe, are saying that the Investor-State Dispute Settlement provision in the proposed Trans-Pacific Partnership (TPP) agreement is contrary to American legal traditions.

The heavyweights – Yale University's Judith Resnik; Cruz Reynoso, a professor of law emeritus at University of California, Davis School of Law; the Honorable H. Lee Sarokin, Former United States Circuit Judge of the United States Court of Appeals for the Third Circuit; and economist Joseph E. Stiglitz of Columbia University – made their views known in a letter last week to Majority Leader Mitch McConnell (R-KY), Minority Leader Harry Reid (D-NV), House Speaker John Boehner (OH 8th District) and House Minority Leader Nancy Pelosi (D-CA 12th District). CWA's ally in the campaign to beat back Fast Track for TPP, Alliance for Justice, was instrumental in getting the experts to write the letter.

"We write because of our concern that what we know about ISDS does not match what courts can provide," they wrote in the letter. These experts sounded the warnings about ISDS:

Those advocating using this alternative in lieu of our court system bear the burden of demonstrating why such an exit is necessary, and how the alternate system will safeguard the ideals enshrined in our courts. Thus far, the proponents of ISDS have failed to meet that burden. Therefore, before any ISDS provisions are included in the TPP or any future agreements, including the Transatlantic Trade and Investment Partnership (TTIP), their content should be disclosed and their purposes vetted in public so that debate can be had about whether and if such provisions should be part of proposed treaties...

Our legal system rests on the conviction that every individual, regardless of wealth or power, has an equal right to bring a case to court. To protect and uphold the rule of law, our ideals of fairness and justice must apply in all situations and equally to everyone. ISDS, in contrast, is a system built on differential access. ISDS provides a separate legal system available only to certain investors who are authorized to exit the American legal system. Only foreign investors may bring claims under ISDS provisions. This option is not offered to nations, domestic investors, or civil society groups alleging violations of treaty obligations. Under ISDS regimes, foreign investors alone are granted legal rights unavailable to others – freed from the rulings and procedures of domestic courts...

ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve. Proponents of ISDS have failed to explain why our legal system is inadequate to the task. For the reasons cited above, we urge you to uphold the best ideals of our legal system and ensure ISDS is excluded from upcoming trade agreements.

This caught the attention of the news media, including The Washington Post, which ran a story about the letter and the widespread opposition to TPP, which is being negotiated by the U.S. and 11 Pacific Rim nations.