Chamber of Commerce Throws Tantrum Over Modest Reform
Reports of Reform to Investor Tribunals Are Welcome, Appropriate, and Insufficient
WASHINGTON, D.C. — The Chamber of Commerce has made public two Freedom of Information Act (FOIA) requests it submitted to the U.S. Trade Representative (USTR) about potential forthcoming actions to reform Investor-State Dispute Settlement (ISDS) provisions with certain countries. A Wall Street Journal editorial board piece then criticized both the substance of the reform and the process behind it, suggesting that USTR is improperly acting without congressional input. In response, Global Trade Watch Director Melinda St. Louis issued the following statement:
“The Chamber’s pearl-clutching about process and transparency is laughable, especially coming from an organization that serves the interests of the biggest corporations in the halls of power. If USTR is in fact working with partner countries to rein in some of the most extreme abuses of the ISDS regime, that would be important progress.
“Congress delegates authority to USTR in the context of monitoring agreements and making sure they are up to date. Issuance of a note of interpretation like the Chamber describes is well within USTR’s authority and, in fact, is only a modest action compared to what members of Congress have repeatedly requested, which is the total elimination of ISDS corporate privileges from existing agreements.
“As 300 professors of law and economics noted earlier this year, ISDS tribunals “lack many of the fundamental safeguards and procedures typically available in a court of law,” including a meaningful appeals process, strict rules of precedent, and oversight of the lawyers who may represent corporations one day and act as a tribunal judge the next. As a result, tribunals have taken up fanciful interpretations of the rights granted to foreign investors, leading to egregious corporate overreach into domestic policymaking.
“It is perfectly normal for a government to issue a note of interpretation to clarify the intent of language in a trade agreement. Indeed it is the duty of USTR to ensure our trade agreements are being enforced appropriately. Such notes unfortunately are often ignored by tribunals, a fact that underscores the absurdity of the Chamber’s complaints.
“The Wall Street Journal itself notes that there is bipartisan opposition to ISDS, and that Trump’s former USTR eliminated ISDS with Canada and significantly reduced it with Mexico. Members of Congress have repeatedly called on USTR to take action on ISDS. When Sen. Sheldon Whitehouse raised the “evil, noxious” ISDS regime with USTR Katherine Tai at a hearing earlier this year, she confirmed her agency was actively looking into options to address ISDS in existing agreements.”