As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context.
Threats to Public Interest Policy
For a growing array of domestic policymakers, civil society organizations and people impacted by ISDR decisions, ISDR is viewed as a threat to vast swaths of public interest policy achieved through decades of struggle, and to the prospect of further advances. Either by winning an investor-state attack and collecting millions in compensation, or by preemptively chillin [...]
Trans-Pacific Partnership (TPP) negotiations have become the territory where a brewing perfect storm over investor-state dispute resolution (ISDR) is making landfall. The June 2012 leak of the draft TPP Investment Chapter text added energy, but much more is fueling this tempest.
In general the ISDR system is coming under increased scrutiny. Public and policymaker concerns in numerous countries have been building alongside awareness of the regime and its implications as large ISDR awards in challenges against common public interest policies increase.
U.S. government insistence that the TPP include an expansive ISDR system is having a boomerang effect. And I am not mainly referring to Austral [...]
The seventh round of TPP negotiations will take place in Vietnam the week of June 20 but caution on the part of U.S. negotiators makes it highly unlikely that after fifteen months of ongoing negotiations any of the major issues will be resolved or even fully opened to discussion. In particular, the United States Trade Representative (USTR) is likely to avoid presenting definitive U.S. views on labor, environment, state owned enterprises (SOEs) and intellectual property. (Limited proposals on both environmental issues and IP have been offered by the United States in the past, but apparently lacked detail, and do not address the data exclusivity, extended patent term and patent linkage issue [...]