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This diary is detailed and technical. It's intended to provide an illustration of Investor-State Dispute Settlement (ISDS), a feature of the TPP and TTIP free-trade agreements.
This information is for the people who have concerns about ISDS, and I've noticed a few of you here, because more knowledge and information is always better. Please read carefully. I would be glad to answer questions if there are any.

The update information is at the end of the diary.

With Congress getting ready to decide fast-track authority for three new free-trade agreements, TPP, TTIP, & TISA, a reminder comes about the need for protection from the destructive greed of  powerful business corporations.  

In my inbox this morning was an email from Jean-Luc Mélenchon who heads the Leftist Party in France with news of the last month spent in Ecuador with a European delegation of elected officials and environmentalists visiting the site of the Chevron Affair.  What happened there, and the aftermath is a long, convoluted story.  The quickest way to jump into it is by watching this short trailer from the award winning 2009 documentary, 'Crude.'


Three years have passed since Ecuador’s Supreme Court awarded an $18 billion settlement to the villagers of Lago Agrio.  The court found Chevron liable for dumping toxic waste near a rainforest community with devastating consequences for the villagers who lived there.  However, there has been no remediation because Chevron refuses to pay.  

The European delegation was invited to inspect the area, which still hasn’t been cleaned up, as Chevron sued to overturn the judgment of Ecuador’s court by obtaining a judgment in its favor in US District Court for the Southern District of New York. The company admitted long ago that it dumped toxic waste into the waterways of the Amazon rainforest and abandoned huge open pits of the stuff as well, but it refuses to accept responsibility for its own actions.

After the Ecuadorean court’s decision, Chevron sold all of its assets in the country, and it left without paying a dime.  Legal convolutions followed, with Chevron claiming that the Ecuadorean villagers fabricated their story and won in court with bribery and fraud. The case being heard by Judge Lewis Kaplan in the New York District Court is a countersuit to invalidate the decision of Ecuador’s court.

Whether a US District Court has jurisdiction to overturn the decision of a court in another country isn’t clear. Judge Kaplan’s opinionated remarks disparaging Ecuador and its judicial system indicate that its decisions don’t hold as much weight as those of a London court would, in his estimation.  

Lurking in the background is the issue of Investor-State Dispute Settlements (ISDS) which are now a regular element in free-trade agreements like TPP and TTIP.  

When a country’s judicial system is unresponsive in a suit arising from a trade-related issue, an ISDS is supposed to offer another means for settling disputes through arbitration.  Following that process, an international tribunal cleared Chevron of any wrong-doing last October.  For anyone wondering why there are suspicions about the inclusion of ISDS in free-trade agreements, there’s your answer.

Meanwhile, Chevron’s countersuit creeps slowly to its conclusion in New York’s District Court where Judge Lewis Kaplan doesn’t appear to be very sympathetic to the Ecuadorean villagers either.  Recent reporting said that Judge Kaplan has insulted and disparaged the Ecuadorians by referring to them as the “so-called plaintiffs.”

Particularly perplexing is the story of a witness who travelled from Ecuador to testify:

“Another Ecuadorian, Donald Moncayo, who organizes tours of the contaminated areas in the rainforest, traveled for two days from the rainforest to New York's concrete jungle to testify. While on the stand, he mentioned his laptop. Judge Kaplan asked Moncayo if the laptop had with him in New York. When he answered, yes, Kaplan turned to Chevron's lawyer, Randy Mastro, and said, "Take it from here, Mr. Mastro." Mastro then motioned to seize the laptop, and Kaplan ordered it turned over to Chevron within two hours. Since Moncayo was not one of the named defendants in Chevron's RICO case, he had no legal representation. Kaplan denied motions to allow him time to find an attorney.

Afterwards, standing on a noisy New York City street, Moncayo had no idea why three men in expensive black suits in a Lincoln town car were driving away with his laptop, which they kept for 14 hours. On the laptop were photos of his children and wife. This high-drama tactic produced nothing for Chevron, except a story that Moncayo will never forget and will repeat over and over again. His parting words at the airport were, "I will never step foot in this country again."

If there’s no justice for the Ecuadorean villagers in New York, they may have found it in Toronto, Canada, instead.  The plaintiffs traveled there to target Chevron's $15 billion worth of assets in Canada.
Dec 17 2013 (Reuters) - An Ontario appeals court ruled on Tuesday that a group of Ecuadoreans can seek enforcement in Canada of a $9.5 billion judgment against U.S. oil company Chevron Corp, overturning a lower court decision from earlier in the year.

In the latest turn of a two-decade conflict between Chevron and residents of Ecuador's Lago Agrio region in the Amazon jungle, a three-judge panel said the case should proceed, which means the Ecuadoreans can seek damages in Canada that were originally awarded to them in a South American court two years ago.

"After all these years, the plaintiffs deserve to have the recognition and enforcement of the (Ecuadorean) judgment heard on the merits in an appropriate jurisdiction. At this juncture, Ontario is that jurisdiction," the panel wrote in a 29-page decision.


Free-trade agreements with ISDS provisions are supposed to provide resolution in disputes like the one between Chevron and Ecuador.  The tribunal ruled in favor of Chevron based on the trade agreement in effect at the time between the US and Ecuador.  

But the most important lesson to be learned from the case is this:

The tribunal didn’t issue the initial ruling on the matter.  It's decision came after the decision of Ecuador’s Supreme Court.  The tribunal knew that a decision had already been made by the sovereign court of Ecuador and it inserted itself into the decision and overruled it.  By doing so, it pushed the boundaries of the ISDS process beyond the established definition.

The EU provides a list of FAQs for its citizens with questions about TTIP. The same information would apply in the US, too, in a reciprocal agreement.

  • Q: Will the TTIP automatically trump EU laws?
    A: "The TTIP will not automatically overrule, repeal or amend EU laws and regulations."
  • Q: Why is the EU including Investor to State Dispute Settlement in the TTIP?
    A: " . . . Including measures to protect investors does not prevent governments from passing laws, nor does it lead to laws being repealed."

Yet, the tribunal did overrule Ecuador's court. The EU language and the organization that authorizes the tribunals refers to them as a resource available to investors. It seems that they're available to commercial business enterprises but not ordinary individuals.  Yet, the tribunal's decision for the dispute between Chevron and Ecuador had a very definite effect on ordinary Ecuadoreans.

For more information about the ISDS tribunals, authorized by the International Centre for Settlement of Investment Disputes (ICSID), an arbitration court of the World Bank, follow the link.

When there are important questions without answers, and there’s talk in the US Congress of putting these free-trade agreements on fast-track, it seems like pressure to pass a measure without the proper scrutiny.

For more information about the story of the Ecuadorean villagers, this is a good resource.

For more information about the Chevron vs. Ecuador ISDS decision, this is a knowledgable analysis.

UPDATE: A hearing has been scheduled.

US Senate Committee on Finance
Thursday, January 16, 2014, 10:00 AM (Eastern)
Bill #:  S. 1900 - Trade Priorities Act [aka Fast-Track]
Sponsors:  Max Baucus (D-MT), Orin Hatch (R-UT)
Finance Committee contact info:  Phone:  202-224-4515, Fax:  202-228-0554

Smile and Dial

Contact the members of the International Trade, Customs and Global Competitiveness Subcommittee, Chaired by Ron Wyden. Here’s the contact info the rest of the Subcommittee members.

Senator Party-State Phone number Fax numbe
WYDEN, Ron (Chair) D-OR 202-224-5244
BENNET, Michael F. D-CO 202-224-5852
BROWN, Sherrod D-OH 202-224-2315 202-228-6321
CANTWELL, Maria D-WA 202-224-3441
MENENDEZ, Robert D-NJ 202.224.4744
ROCKEFELLER IV, John D. D-WV 202-224-6472 202-224-7665
SCHUMER, Charles E. D-NY 202-224-6542 202-228-3027
STABENOW, Debbie D-MI 202-224-4822
If you need help crafting your message, here are some suggestions:
  • The Trade Priorities Act [aka Fast-Track] is a back-door rewrite of the Constitution.
  • 20 years of Fast-Track Free Trade led to:
    more income inequality
    fewer jobs
    lower wages
    higher prices
The members of the Trade Subcommittee should be thoroughly prepared to answer questions intelligently about the free-trade agreements, the Fast-Track component, and the Investor-State Dispute Settlements which are the subject of this diary:

1] What is are Investor-State Dispute Settlements? The Senate should know more than the text book answer.

2] How have they been used? Although in existence for years, their use has increased sharply in 2011 & 2012 in ways that were unexpected.

3] How will they be used in the future? Could ISDS evolve into a tool for extortionists as the once innocuous statutory debt limit did?

4] What provisions will be written to protect the US from offshore tribunals? During negotiations, there's an opportunity for the US to write the trade agreement it wants. How are the interests of the public accommodated?

Originally posted to researchandanalyze on Sun Jan 12, 2014 at 05:01 PM PST.

Also republished by Community Spotlight.

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Comment Preferences

  •  Arbitration (5+ / 0-)

    Your link had the following abstract:

    A tribunal convened at the Permanent Court of Arbitration ruled that former settlement agreements protected Chevron from paying to Ecuador a $19 billion fine for polluting the Amazon basin region.  According to the press release, the tribunal, which was convened under the authority of the U.S.-Ecuador Bilateral Investment Treaty and under the United Nations Commission on International Trade Law (UNCITRAL) Rules, "found that the Settlement and Release Agreements that the Government of Ecuador entered into with [Texaco Petroleum Company (TexPet)] in 1995 and 1998 released TexPet and its affiliates of any liability for all public interest or collective environmental claims."  The Tribunal further found that: "1) Chevron and TexPet are 'Releasees' under the 1995 Settlement Agreement and the 1998 Final Release; 2) Chevron can invoke and enforce its contractual rights as a Releasee; and 3) the Government settled all public interest or collective environmental claims, including collective claims asserted by third parties."
    If that's true, and Ecuador's government released Texaco from liability, then I don't see what legal leg they have to stand on.  Maybe the arbitration panel made the right decision?
    •  It seems more complicated than that. (10+ / 0-)

      If Ecuador's judicial system had already adjudicated the matter, then I don't see why the arbitration panel should have the authority to substitute its decision for that of the country's judiciary.

      It appears Chevron lost in Ecuador's courts, but it didn't like the decision.  Having submitted the case for resolution to the Ecuadorian courts, I think Chevron has to live with that decision.  That would certainly be an American court's reaction to a party that had litigated its case in the American judicial system and lost.  

      The only exception I can see here would be if Chevron had refused to submit to Ecuador's jurisdiction from the outset, claiming somehow that Ecuador's courts had no authority to decide the dispute.  (That position hardly seems tenable, however, given that Ecuador is unquestionably the site of the spill, and Chevron indisputably conducted business there.)

      I'd need to read more about the particulars of this case, but it sounds to me like Chevron is using this international arbitration panel as a second bite at the apple.  American law doesn't usually permit such things, so I don't see any reason why Ecuador's should.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Sun Jan 12, 2014 at 06:15:38 PM PST

      [ Parent ]

      •  Thanks for the interest. And I agree the original (10+ / 0-)

        documents and/or more details would provide some basis to understand a little better why it played out as it did.

        I spelled it out downthread based on the information given. Even if there was a valid release between Ecuador and Chevron, the tribunal would not be able to consider that as the only essential fact. It couldn't ignore the villagers who are a third party outside the scope of its authority.  It's as if it didn't consider the effect of its decision on people who aren't subject to the authority the tribunal was given.  The villagers couldn't be separated from the decision either. That was a cue for the tribunal to refuse the case because it was outside its jurisdiction.

        I stayed concise in the diary but it's all there.  The last link does a good job of explaining why the tribunal went out of bounds.

        Reverse the situation around and imagine incurring damages here in the US and having a tribunal authorized by the World Bank rule against you in favor of a foreign corporation. The US obviously has more clout than Ecuador but this should never ever happen. Period.

        There is no existence without doubt.

        by Mark Lippman on Sun Jan 12, 2014 at 06:45:51 PM PST

        [ Parent ]

        •  The jurisdictional issues seem decisive. (5+ / 0-)
          Recommended by:
          Mark Lippman, eyo, Chi, divineorder, kurt

          No matter what, the international panel has no right to bind people who are not parties to a case before it.  That includes the Ecuadorean plaintiffs, who, if I understand correctly, could never be parties before this tribunal.

          This is wholly apart from Chevron's attempt to escape the effect of a binding Ecuadorean judgment.  I realize that the company has argued successfully in U.S. courts that the judgment was procured by fraud, but I'm not familiar enough with the facts of the case to offer an opinion on the correctness of Chevron's contentions.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Sun Jan 12, 2014 at 07:32:03 PM PST

          [ Parent ]

          •  I haven't finished reading all of it but the fraud (7+ / 0-)

            allegation resulted from the lawyer composing a written statement from one of the plaintiffs who was illiterate. I had to stop at that point. The villagers are indigenous people and it's not hard to imagine the mentality of some in this country would make them barely human.  I know that reporting states fraud as if it was a fact and I have to read more.  Fraud sounds like there was no toxic waste or contamination which is obviously not the case.

            There is no existence without doubt.

            by Mark Lippman on Sun Jan 12, 2014 at 08:02:57 PM PST

            [ Parent ]

            •  I have a vague recollection . . . (3+ / 0-)
              Recommended by:
              marina, eyo, divineorder

              of reading about some of the problems with the fraud allegations, but I haven't followed this case, so I can't really remember what it was all about.

              I wouldn't be surprised if Chevron had tried to make hay out of lawyers drafting statements for witnesses.  It's always easy to claim that some sleazy lawyer caused their problem.  Of course, it's entirely possible that many of the indigenous plaintiffs are illiterate (and some of them may not even speak Spanish for all I know), so someone would have to put down their statements in writing.

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Sun Jan 12, 2014 at 08:39:44 PM PST

              [ Parent ]

      •  The TTP's ISDS is about a LOT more than this... (15+ / 0-)

        ....we're talking 40% of the world's trade (that's far more than just one small South American country)...and a virtual global ban on social activism and leftwing political organizing.

        Even the brutal story of the case of Ecuador is somewhat of a false equivalency here, frankly. (Because it's just one small country. With the TPP and the European version of it, which I'm told is only slightly less draconian, we're talking about MOST of the world.)

        These Agreements (the European Free Trade Agmt., and the TPP) are far, far more egregious. Getting into the legal minutiae, frankly, is really quite disconcerting. Our corporatocracy--at least in the past generation--never met a "free-trade" agreement it didn't like. And, it's done little more than undermine organized labor in the U.S.

        (And, this is just based upon what little we do, ALREADY, know about this!)

        A Global Ban on Left-Wing Politics

        November 4, 2013

        That’s what the new rules being smuggled into trade agreements are delivering.

        By George Monbiot, published in the Guardian 5th November 2013

        Remember that referendum about whether we should create a single market with the United States? You know, the one that asked whether corporations should have the power to strike down our laws? No, I don’t either. Mind you, I spent ten minutes looking for my watch the other day, before I realised I was wearing it. Forgetting about the referendum is another sign of ageing. Because there must have been one, mustn’t there? After all that agonising over whether or not we should stay in the European Union(1), the government wouldn’t cede our sovereignty to some shadowy, undemocratic body without consulting us. Would it?

        The purpose of the Transatlantic Trade and Investment Partnership is to remove the regulatory differences between the US and European nations. I mentioned it a couple of weeks ago(2). But I left out the most important issue: the remarkable ability it would grant big business to sue the living daylights out of governments which try to defend their citizens. It would allow a secretive panel of corporate lawyers to overrule the will of parliament and destroy our legal protections. Yet the defenders of our sovereignty say nothing.
        The mechanism is called investor-state dispute settlement.
        It’s already being used in many parts of the world to kill regulations protecting people and the living planet.

        The Australian government, after massive debates in and out of parliament, decided that cigarettes should be sold in plain packets, marked only with shocking health warnings. The decision was validated by the Australian supreme court. But, using a trade agreement Australia struck with Hong Kong, the tobacco company Philip Morris has asked an offshore tribunal to award it a vast sum in compensation for the loss of what it calls its intellectual property(3).

        During its financial crisis, and in response to public anger over rocketing charges, Argentina imposed a freeze on people’s energy and water bills (does this sound familiar?). It was sued by the international utility companies whose vast bills had prompted the government to act. For this and other such crimes, it has been forced to pay out over a billion dollars in compensation(4).

        In El Salvador, local communities managed at great cost (three campaigners were murdered) to persuade the government to refuse permission for a vast gold mine which threatened to contaminate their water supplies. A victory for democracy? Not for long perhaps. The Canadian company which sought to dig the mine is now suing El Salvador for $315m – for the loss of its anticipated future profits(5).

        In Canada, the courts revoked two patents owned by the US drugs firm Eli Lilly, on the grounds that the company had not produced enough evidence that they had the beneficial effects it claimed. Eli Lilly is now suing the Canadian government for $500m, and demanding that Canada’s patent laws are changed(6).

        These companies (and hundreds of others) are using the investor-state dispute rules embedded in trade treaties signed by the countries they are suing. The rules are enforced by panels which have none of the safeguards we expect in our own courts(7,8). The hearings are held in secret. The judges are corporate lawyers, many of whom work for corporations of the kind whose cases they hear.

        Citizens and communities affected by their decisions have no legal standing. There is no right of appeal on the merits of the case. Yet they can overthrow the sovereignty of parliaments and the rulings of supreme courts.

        You don’t believe it? Here’s what one of the judges on these tribunals says about his work. “When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all … Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament.”(9)

        There are no corresponding rights for citizens. We can’t use these tribunals to demand better protections from corporate greed. As the Democracy Centre says, this is “a privatised justice system for global corporations.”(10)

        Even if these suits don’t succeed, they can exert a powerful chilling effect on legislation. One Canadian government official, speaking about the rules introduced by the North American Free Trade Agreement, remarked, “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law. Virtually all of the new initiatives were targeted and most of them never saw the light of day.”(11)

        Democracy, as a meaningful proposition, is impossible under these circumstances.

        This is the system to which we will be subject if the transatlantic treaty goes ahead. The US and the European Commission, both of which have been captured by the corporations they are supposed to regulate, are pressing for investor-state dispute resolution to be included in the agreement.

        The Commission justifies this policy by claiming that domestic courts don’t offer corporations sufficient protection because they “might be biased or lack independence.”(12)

        Which courts is it talking about? Those of the US? Its own member states? It doesn’t say. In fact it fails to produce a single concrete example demonstrating the need for a new, extra-judicial system. It is precisely because our courts are generally not biased or lacking independence that the corporations want to bypass them. The EC seeks to replace open, accountable, sovereign courts with a closed, corrupt system riddled with conflicts of interest and arbitrary powers.

        Investor-state rules could be used to smash any attempt to save the NHS from corporate control, to re-regulate the banks, to curb the greed of the energy companies, to renationalise the railways, to leave fossil fuels in the ground.

        These rules shut down democratic alternatives. They outlaw left-wing politics.

        This is why there has been no attempt by our government to inform us about this monstrous assault on democracy, let alone consult us. This is why the Conservatives who huff and puff about sovereignty are silent. Wake up people, we’re being shafted.

        More from Citizen Action Monitor

        A Global Ban on Left-Wing Politics by George Monbiot, www.monbiot.com, November 4, 2013

        That’s what the new rules being smuggled into trade agreements are delivering.

        Remember that referendum about whether we should create a single market with the United States? You know, the one that asked whether corporations should have the power to strike down our laws? No, I don’t either. Mind you, I spent ten minutes looking for my watch the other day, before I realised I was wearing it. Forgetting about the referendum is another sign of ageing. Because there must have been one, mustn’t there? After all that agonising over whether or not we should stay in the European Union, the government wouldn’t cede our sovereignty to some shadowy, undemocratic body without consulting us. Would it?

        New trade rules would grant big business authority to “sue the living daylights out of governments”

        The purpose of the Transatlantic Trade and Investment Partnership is to remove the regulatory differences between the US and European nations. I mentioned it a couple of weeks ago. But I left out the most important issue: the remarkable ability it would grant big business to sue the living daylights out of governments which try to defend their citizens. It would allow a secretive panel of corporate lawyers to overrule the will of parliament and destroy our legal protections. Yet the defenders of our sovereignty say nothing.

        “Investor-state dispute settlement” is mechanism already being used to kill regulation protecting people and planet
        The mechanism is called investor-state dispute settlement.

        It’s already being used in many parts of the world to kill regulations protecting people and the living planet.

        Here are four recent examples

        •    Tobacco company asks tribunal to award it vast sum in compensation for loss of intellectual property decision — The Australian government, after massive debates in and out of parliament, decided that cigarettes should be sold in plain packets, marked only with shocking health warnings. The decision was validated by the Australian supreme court. But, using a trade agreement Australia struck with Hong Kong, the tobacco company Philip Morris has asked an offshore tribunal to award it a vast sum in compensation for the loss of what it calls its intellectual property.

        •    Foreign utility companies force Argentina to pay over $1b for governed freeze on energy and water bills – During its financial crisis, and in response to public anger over rocketing charges, Argentina imposed a freeze on people’s energy and water bills (does this sound familiar?). It was sued by the international utility companies whose vast bills had prompted the government to act. For this and other such crimes, it has been forced to pay out over a billion dollars in compensation.

        •    Canadian mining company suing El Salvador for $315m for refusing to permit gold mine that threatened to contaminate water —  In El Salvador, local communities managed at great cost (three campaigners were murdered) to persuade the government to refuse permission for a vast gold mine which threatened to contaminate their water supplies. A victory for democracy? Not for long perhaps. The Canadian company which sought to dig the mine is now suing El Salvador for $315m – for the loss of its anticipated future profits.

        •    Eli Lilly suing Canadian government for $500m for revoking two drug patents — In Canada, the courts revoked two patents owned by the US drugs firm Eli Lilly, on the grounds that the company had not produced enough evidence that they had the beneficial effects it claimed. Eli Lilly is now suing the Canadian government for $500m, and demanding that Canada’s patent laws are changed.

        "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

        by bobswern on Mon Jan 13, 2014 at 01:00:28 AM PST

        [ Parent ]

        •  Corr. Previous Comment Headline s/b "TPP"... (3+ / 0-)
          Recommended by:
          lunachickie, shaharazade, YucatanMan

          ...not "TTP"

          "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

          by bobswern on Mon Jan 13, 2014 at 01:09:51 AM PST

          [ Parent ]

        •  Your comments are welcome here. Everyone is at (5+ / 0-)

          different stages in their learning. Including me.  The info I received is part of the ramp up for the Civil Society Dialogue on TTIP at the EU in Brussels Tuesday Jan 14. The real action is probably going to be outside not in.

          In Outpost America the Senate Finance Committee has a hearing on Thursday Jan 16.

          finance.senate.gov

          Anyone can contact them because we want to hear them talk during the hearing which will be on C-Span and/or the US Congress video utility or both.

          1] What is ISDS?
          2] How has it been used?
          3] How will it be used in the future?
          4] What provisions will be written to protect the US from offshore tribunals?

          There is no existence without doubt.

          by Mark Lippman on Mon Jan 13, 2014 at 08:49:14 AM PST

          [ Parent ]

        •  I don't disagree. (6+ / 0-)

          I have a bit of familiarity with how this system operates under NAFTA, although I haven't followed the issue in years.  At one point, there was a very interesting legal debate about whether these international arbitration panels violated the U.S. Constitution.  Specifically, whether they usurped the sovereignty of states under the Eleventh Amendment.

          I've focused on the technicalities of this case because I think they're important to the indigenous plaintiffs and because they seem illustrative of the larger problems inherent in this system.  Large corporations like Chevron are seeking to subvert the judicial systems of countries in which they operate by resorting to these international arbitration panels.  

          The particularly egregious injustice in this case is that the Ecuadorean plaintiffs are not (and cannot be) parties to the arbitration, yet it is on the basis of the arbitrators' decision that Chevron seeks to avoid paying the damages awarded to the plaintiffs by the courts in Ecuador.  In my view, this makes a bad system even worse, because it extends the reach of the arbitrators' powers.  

          Chevron should pay the judgment, and then if it thinks it's entitled to relief under one of these investment arbitration agreements, it can duke it out with Ecuador before the arbitrators.  But they shouldn't be allowed to stiff the plaintiffs, who don't even have a right to be represented in this proceeding.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Mon Jan 13, 2014 at 08:50:26 AM PST

          [ Parent ]

        •  Yes, this could have massive repurcussions.n/t (1+ / 0-)
          Recommended by:
          bobswern
    •  Hey, thank you for stopping in. If I understand (9+ / 0-)

      you correctly, I can try to dissect that.

      The ISDS tribunals are supposed to rule only on matters relative to a dispute based on provisions in a trade agreement between two countries.  This is abstract but if you consider the trade agreement as the equivalent of a contract between two parties, the tribunals would arbitrate disputes when there's an allegation involving a party that failed to fulfill the terms of the contract.

      In other words, the tribunals authority is narrow, but in practice, they seem to be very sloppy about staying inside the lines where they should.

      In the Chevron vs Ecuador case, the original dispute was between the villagers and Chevron. (Perhaps I'm confusing you by referring to Chevron vs Ecuador.) The Supreme Court of Ecuador awarded a settlement for the damages caused by Chevron.  

      Later, Chevron filed an ISDS arbitration to reverse the Supreme Court decision. As you say, the tribunal discovered a release. Since the ISDS tribunal only rule on matters directly pertaining to the trade agreement, and the parties to it, (US & Ecuador,) it would have to view the villagers as a third party outside the scope of its responsibility. (read the last link)

      It's an anomalous situation because of the release, and it seems you're saying that the Supreme Court of Ecuador's decision wasn't supported by the arrangements in place, The decision could have been challenged, but not via the ISDS tribunal. By doing so, it superceded the sovereign authority of Ecuador which is just as invalid as the Ecuadorean court's decision might have been.

      I'll stop there. Except to say that things slip and slide away from their original intent in real life.

      There is no existence without doubt.

      by Mark Lippman on Sun Jan 12, 2014 at 06:26:33 PM PST

      [ Parent ]

      •  Hard to say (1+ / 0-)
        Recommended by:
        eyo

        This is beyond my technical knowledge of investment agreements (this case was brought under a bilateral investment treaty), and just what scope the arbitration panel had to rule on.

        However, if this is a case of a corrupt court system and a foreign government trying to extort a US company for billions and billions (insert Austin Powers reference here), then you've just made a case for why we should include ISDS in trade agreements.  Companies won't make major investments like this unless they have some guarantee that they won't be treated unfairly.

        Seems like that's what it comes down to.  If Chevron's right, then this is a great example of why we need ISDS.  If Ecuador's right, it's a great example of why we shouldn't include ISDS.

        •  If ISDS stuck to its job, which is in writing (10+ / 0-)

          on paper, it would accept cases by asking two simple questions:

          1] Did Ecuador violate the terms of its treaty with the US?
          2] Did the US violate the terms of its treaty with Ecuador?

          It would have to study the treaty and the situation. If the answer to those questions is No, then, the tribunal has to be careful of exceeding its authority.  Testing whether to accept a case becomes more subjective after the first two questions which are basic yes/no.

          The tribunal can consider whether the country involved has a functioning judiciary. Is it corrupt?  "Dirty?" But that has to be balanced with the evidence. Chevron admitted it decided to dispose of the toxic waste improperly as a cost saving. It admitted that it decided against using lined pools for the same reason. 1400 people died. And evidence is the reason for calling in the European delegation as neutral observers to take pictures, video, etc.
          There are already a million pictures but maybe not of the present conditions.

          Maybe it would be easier to understand if Americans were victimized.  The whole purpose of this diary is to warn of the risk of that

          There is no existence without doubt.

          by Mark Lippman on Sun Jan 12, 2014 at 07:42:52 PM PST

          [ Parent ]

    •  The 'Release from Environmental Claims' seems odd, (5+ / 0-)

      taken at face value as presented, it appears that Chevron could use Ecuador as an unregulated dumping ground.  If you don't accept that statement, that due to the release Chevron can dump anything anywhere in Ecuador (and who would?), then there is a case.

      And we love to wear a badge, a uniform / And we love to fly a flag But I won't...let others live in hell / As we divide against each other And we fight amongst ourselves

      by ban48 on Sun Jan 12, 2014 at 08:09:54 PM PST

      [ Parent ]

      •  Chevron (5+ / 0-)
        Recommended by:
        eyo, divineorder, Don midwest, FG, ban48

        According to Chevron at any rate, they ceased operations in Ecuador in 1992, performed various remediation activities that the government required, then later signed a release with the Ecuadoran government in 1998.  Since they left Ecuador in 1992 there wouldn't appear to be any dumping by Chevron after that date.

        •  Good link. I wonder what Ecuador's response to (0+ / 0-)

          the Chevron statement is.  The way Chevron states it, Ecuador is trying to get them to pay for spills created after they left.  And, they haven't operated in Ecuador for almost 22 years...???

          And we love to wear a badge, a uniform / And we love to fly a flag But I won't...let others live in hell / As we divide against each other And we fight amongst ourselves

          by ban48 on Mon Jan 13, 2014 at 08:58:37 PM PST

          [ Parent ]

    •  UnConstitutional. There is NO legal way OUR (6+ / 0-)

      representatives can allow a bunch of corporate self-appointed greed bags to cut themselves the deal of the millennium on ANY basis.  

      Here's why:  OUR representatives must take an oath to uphold OUR Constitution, which includes our right to self-governance.  To allow corporations to govern us is about as logical as McCain writing up a treaty that proclaims Toys-R-Us, now owned by an Equador, is forever more going to be in charge of military.

      Separation of Church and State AND Corporation

      by Einsteinia on Sun Jan 12, 2014 at 08:20:20 PM PST

      [ Parent ]

  •  Assuming those agreements (7+ / 0-)

    …are ratified by the participating states, can "trades" or sales of natural resources (which are trades for cash) be exempted contractually from the terms of the larger trade agreements?

    The loss of sovereignty you refer to in your title refers to all parties except the US and British, I take it?

    Large non participants (such as perhaps China in the TPP) are not adversely affected, I assume. My understanding is that China sees that participation would allow them to profitability strip sovereignty from smaller nation-participants.

    In any case, smaller participants (like Ecuador, which has a FTA with the US for roses) can be economically blackmailed out of their political sovereignty at any time (as was the case in the Snowden affair, where he was seeking relocation to Ecuador).

    I believe the larger point to these agreements is the creation of vast trading blocs between hemispheres, which is no doubt the attraction for smaller states, which could still expect to be man-handled within their own bloc, if push came to shove. Thus, trading between blocs is probably the strategic benefit being weighed.

    I think the world has learned a lot from Ecuador's experiences. And what has been learned will not work to the advantage of the US. The NSA's international criminal activities certainly have not helped, and may decimate the US tech sector, in any case.

    I do not think these FTAs are in the bag, opaque or otherwise. I have serious doubts about the TPP, especially. Thanks for posting this interesting bit of background.

    •  Anything can be carved out and exempted in (5+ / 0-)

      negotiations. Japan's auto industry is one of those.  None of the countries would be exempt from the ISDS but that doesn't automatically mean loss of sovereignty. I don't think anyone can imagine all of the different ways it could be used in the future, especially if it isn't precisely defined.

      A huge corporation like Chevron is totally out of scale in a small poor country. It reminds me of a Theodore Roosevelt quote from around 1907 about how extremely wealthy individuals or business corporations could become more powerful than the government and have leverage over it.

      It's not geared to being part of a bloc as much as producing things for lower cost by growing sheep in New Zealand for wool. shipping that to Vietnam to spin into yarn, shipping that to Singapore to knit into a sweater. Nothing made in one place and I don't understand it.

      There is no existence without doubt.

      by Mark Lippman on Sun Jan 12, 2014 at 08:42:40 PM PST

      [ Parent ]

      •  But under ASEAN this already happens: (5+ / 0-)
        It's not geared to being part of a bloc as much as producing things for lower cost by growing sheep in New Zealand for wool. shipping that to Vietnam to spin into yarn, shipping that to Singapore to knit into a sweater.
        And the WTO already acts as an arbitrator in trade agreements and conflicts.

        There are lots of holes in my understanding, however. I tend to look at international affairs through the lens of geopolitics and resource wars. Your comments have been very helpful. Thank you.

        •  Your welcome. And remember, it's not what has (8+ / 0-)

          been done. It's the things that haven't that you can't even imagine.

          The debt ceiling was raised 75 times from 1961 to 2011 with  no conditions and little fuss until some clever person figured out it could be used for extortion by not raising it.

          There is no existence without doubt.

          by Mark Lippman on Sun Jan 12, 2014 at 10:16:31 PM PST

          [ Parent ]

          •  As a post-national regarding legal twists (0+ / 0-)

            …such as the debt ceiling -- for every clever extortionist, there is a clever legal scholar charging a toll.

            My only concern on the debt ceiling, as such, is international obligations. I think if USians whish to destroy themselves, it is perfectly fine as long as they harm no one else in the process.

            If the US was beamed up overnight to another galaxy, the world would move on with nary a twitch.

  •  I would not be so sure Canada will be the savior. (8+ / 0-)

    The current Canadian government is a radical conservative collection of anti-science, anti-democratic assholes. The Canadian gold mining company sueing Costa Rica for one billion dollars is only one of several Canadian companies doing international rapeage and pillage. And threatening the countries defending their land and people with "legal tools" described in this diary. This is what President Obama wants to get Fast Track Authority for the TPP also known as death of American Sovereignty.

    Life is just a bowl of Cherries, that stain your hands and clothes and have pits that break your teeth.

    by OHdog on Sun Jan 12, 2014 at 07:06:32 PM PST

  •  if passed, TPP & TTIP will end in violence (6+ / 0-)

    keep taking away legal options for people to redress wrongs in a timely manner and...

    Even if the Ecuadoreans, right this moment, get a favorable result in Canada and Chevron actually makes the funds available when banks open tomorrow, how many of the Ecuadoreans involved have died in the two decades?  How has their quality of life suffered or hopes & dreams been put on hold?

    Sooner or later people with no options will resort to violence.  

    elipsii: helping the masses express aposiopesis for...

    by bnasley on Sun Jan 12, 2014 at 09:48:46 PM PST

  •  Adam Smith (10+ / 0-)

    Adam Smith rightly saw the dangers of this more than 200 years ago:

    "The proposal of any new law or regulation which comes from [businessmen], ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men, whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it."

    –Adam Smith, An Inquiry into the Nature and Cause of the Wealth of Nations, vol. 1, pt. xi, p.10 (at the conclusion of the chapter)(1776)

    American Heart Association: Diet Soda can cause type 2 Diabetes. "Circulation" July 23, 2007. Read it for yourself.

    by jeffrey789 on Sun Jan 12, 2014 at 10:01:24 PM PST

  •  Boycott Chevron (3+ / 0-)

    Here I go again. All oil companies are environmental disasters, but I still have to buy gas. Chevron, Shell, Valero (Exxon), 76something...

    Like a gnat on a rhino, back to the small independents, I think I have three to choose from (feel lucky).

  •  Bottom Line: (8+ / 0-)

    The Predator 1% Class and their Corporate Entities are above the law.  Having completely captured the United States government branches, they have little worry of being held to account.

    The TPP and other similar deals seek to make it even easier for corporations to plunder and destroy without fear of being held to account.

    The TPP is being advanced by the head of the Democratic Party, President Obama.  Just like Clinton pushed through NAFTA.

    As long as enough folks continue accepting Rhetoric They Can Starve On, the Predator Class will get Results They Can Bank On.

    If the Democrat head-hochos are pushing this kind of agenda (which they have a history of doing), then who's to stop them?

    Waking Up Yet?

    The Lesser Of Two Evils isn't any less evil;  It just employs different marketing tactics.

    The 1% are Purists: They only support Candidates that Deliver Results They Can Bank On. Don't they know they should compromise? /sarcasm

    by Johnathan Ivan on Mon Jan 13, 2014 at 06:16:58 AM PST

    •  Excellent post, thanks for taking the time with (4+ / 0-)
      Recommended by:
      eyo, shaharazade, Johnathan Ivan, kurt

      this.

      Kossacks who want to push back might be interested in these efforts:

      Sierra Club : Opposes Fast-Track Bill To Rush International Trade01/09/2014 | 06:38pm US/Eastern
      NEWS ARTICLES  |  January 09, 2014
      USW Opposes Camp-Baucus Fast Track Proposal

      USW

      Article Brief
      United Steelworkers (USW) International President Leo W. Gerard issued the following statement in response to today’s introduction of legislation by Senate Finance Committee Chairman Max Baucus and House Ways and Means Chairman Dave Camp to grant President Obama expedited and preferential trade negotiating authority historically known as “fast track”.

      Calls for New Approach to Trade Policies that Don’t Fuel Income Disparity

      Google search for Stop fast track

         Stopping Fast Track is One Way We Can Block TPP
          EFF ‎- by Maira Sutton ‎- 2 days ago
          U.S. Congress members introduced a bill yesterday to “fast track” trade agreements, including the Trans-Pacific Partnership (TPP) through ...

          Why House Democrats Might Kill Obama's Big Trade Deal
          Huffington Post‎ - by Michael McAuliff‎ - 1 day ago

      Don't Let Congress Fast-Track TPP - Electronic Frontier Foundation
      https://action.eff.org/...
      Stop Secret Copyright Treaties. Lawmakers in Congress are just ... It's called Fast Track, or Trade Promotion Authority. It creates special rules that empower the ...
      MoveOn Petitions - Congress: Don't renew "fast track" authority
      petitions.moveon.org/sign/congress-dont-renew-fast‎
      Fast track would allow the controversial Trans-Pacific Partnership to leapfrog customary ... “In other words, if people knew what was going on, they would stop it.
      Here's How We Stop Fast Track | Communications Workers of America
      www.cwa-union.org/news/entry/heres_how_we_stop_fast_track/‎
      4 days ago - CWA activists and allies are ready to battle the introduction of “fast track” authorization for the Trans-Pacific Partnership and other trade deals.
      Congress Must Reject Fast Track Trade Authority - Action Center
      action.citizen.org/p/dia/action3/common/public/?action_KEY=12263‎
      Fast Track trade authority is the way that the public and Congress got steamrollered by trade agreements like NAFTA and the WTO. In fact, since Nixon cooked it ...
      Fast Track - Presidential Trade Negotiating Authority - Public Citizen
      https://www.citizen.org/...
      Public Citizen's overview of the Fast Track trade negotiating process. ... Trade Data Center. One-stop shop for searchable trade databases, case lists & more ...
      Tell Congress to Stop Obama's Secret Trade Deals - Food & Water ...
      https://secure3.convio.net/...
      President Obama has indicated that he will be seeking fast-track authority for negotiating trade deals overseas, meaning that Congress wouldn't have to approve ...

      Move Single Payer Forward? Join 18,000 Doctors of PNHP and 185,000 member National Nurses United

      by divineorder on Mon Jan 13, 2014 at 06:41:02 AM PST

      [ Parent ]

    •  Listen . . . (0+ / 0-)



      There is no existence without doubt.

      by Mark Lippman on Mon Jan 13, 2014 at 11:03:40 AM PST

      [ Parent ]

      •  Most excellent - indeed, trouble started (2+ / 0-)
        Recommended by:
        kurt, divineorder

        brewing when Obama appointed Wall Street bagman Geithner and subsequently selected Three different banksters as Chief of Staff.

        Of course, Obama's public Praise of Wall Street Predators as "Savvy Businessmen" and his singling out JP Morgan and Jamie Dimon for especial praise should have given folks pause.

        And let's not forget Obama's appointment of Eric Holder, who defended Chiquita when it was caught paying death squads who murdered indigenous people, as America's "Top Cop".  

        Not prosecuting Wall Street Predators was a step up the Ethical chain for ol' Holder.

        Bridge Over Troubled Waters, indeed.

        The 1% are Purists: They only support Candidates that Deliver Results They Can Bank On. Don't they know they should compromise? /sarcasm

        by Johnathan Ivan on Mon Jan 13, 2014 at 03:20:41 PM PST

        [ Parent ]

        •  And as bad as all that is, everyone has to go on./ (0+ / 0-)

          There is no existence without doubt.

          by Mark Lippman on Mon Jan 13, 2014 at 06:15:09 PM PST

          [ Parent ]

          •  Well, not everyone... but the Predator 1% (0+ / 0-)

            are certainly going on quite nicely.

            The working class?  Not so much.

            The 1% are Purists: They only support Candidates that Deliver Results They Can Bank On. Don't they know they should compromise? /sarcasm

            by Johnathan Ivan on Mon Jan 13, 2014 at 11:28:57 PM PST

            [ Parent ]

            •  Would you like me to write a diary about that (0+ / 0-)

              angle on this topic? It's not that I disagree with you. It deserves a diary of its own and I have a lot to say. Obviously, these public policies don't come about by themselves. The names of those responsible are on some of the documents I've been downloading.

              There is no existence without doubt.

              by Mark Lippman on Tue Jan 14, 2014 at 09:24:06 AM PST

              [ Parent ]

              •  I would love to see a diary on this (0+ / 0-)

                topic.

                One that includes Free Trade, selection of Banksters as Chief of Staff, Banksters as Sec Treasury, Monsanto @ the FDA, Eric Holder, Deficit Commissions, Kill Lists, Corporate Taxes being Too High, TPP, etc.

                The 1% are Purists: They only support Candidates that Deliver Results They Can Bank On. Don't they know they should compromise? /sarcasm

                by Johnathan Ivan on Tue Jan 14, 2014 at 03:26:06 PM PST

                [ Parent ]

  •  your water is next. (8+ / 0-)

    the multinationals are buying up public water.
    then w/ tpp, they will have immunity from ever doing the right thing.
    game over.

    I am tired of laughing at the irony of their stupidity.

    by stagemom on Mon Jan 13, 2014 at 06:47:52 AM PST

  •  Thank You (5+ / 0-)
    Recommended by:
    eyo, unfangus, shaharazade, Mark Lippman, kurt

    Given the bias towards money in our legal system, and all legal arguments aside, I imagine that with these trade agreements we, as well as other nations, will be treated like Ecuador.

    Shameful.  From the last link in your diary;

    There's also this telling comment about the lawsuit from a Chevron lobbyist: "We can't let little countries like Ecuador screw around with large companies."
    That we have people with such debased ethics, and that we would give them power to govern us, is frightening.  Will America be ruled by sociopaths?
  •  A ‘Fast Track’ to Less Democracy (5+ / 0-)

    Even John Nichols gets it

    He is usually a cheer leader for the democratic party

    lately he is holding their feet to the fire

    [http://www.commondreams.org/...
    A ‘Fast Track’ to Less Democracy and More Economic Dislocation]

    the title of his article says it all - all in for the oligarchy  - less democracy and more econ disruption

  •  are attorneys another corrupt profession? (1+ / 0-)
    Recommended by:
    shaharazade

    has happened with a lot of academics who are not holding power to be accountable

    and the attys who studied the constitution and should understand the rule of law

    but end up working for the oligarchs and using the power of the law for them rather than for democracy

    it was 2,000 years between the Republic in Rome until the US set up one 200 years ago.

    can humans even live in a republic?

  •  . (2+ / 0-)
    Recommended by:
    shaharazade, Mark Lippman

    fascism isn't just for breakfast anymore

    "History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control over governments by controlling the money and its issuance." -James Madison

    by FreeTradeIsYourEpitaph on Mon Jan 13, 2014 at 08:06:30 AM PST

  •  In a way it seems to grant Corporate Sovereignty (6+ / 0-)

    at the expense of National Sovereignty.  Invalidating democracies and republics worldwide and (re)turning us to a neo-feudal age.

    Obama: self-described Republican; backed up by right-wing policies

    by The Dead Man on Mon Jan 13, 2014 at 08:09:30 AM PST

  •  Let me take another tack on TPP (6+ / 0-)

    Go back to the selling of the Free trade agreement with China in 2000.  The fear at the time raised by opponents was that it would provide a way to allow Multi-Nationals (MNC's) to evade environmental regulations.

    Ahh, said proponents - we have addressed that.  We have safeguard built in that will prevent MNC's from doing that by requiring the Chinesse to meet environmental and labor standards.

    There were also provisions to prevent the Chinesse from providing Government subsidies to companies who were seeking to export goods to the US.

    The reason some of these provisions are in these agreements is to mollify trade critics.  They are really just for show.  Unions - don't be scared of NAFTA - we have provisions which require labor union protection in Mexico.  Environmentalists - don't be scared of free trade - we have provisions requiring governments to adhere to enviromental standards.

    Fast foward 14 years.  There has been exactly 1 case brought against the Chinesse based on the labor and environmental protections contained in the Free Trade Areement. The same was true with NAFTA.

    Seen a picture of Bejing recently? The air is so bad Chinesse designers have taken to trying to make air masks sexy (I kid you not).

    Chief among the trade sellers has been Robert Reich - see this great article from Naked Capitalism and why I don't trust anything that comes from the guys mouth.
    http://www.nakedcapitalism.com/...

    So the limitations may threaten sovereignty.  Free trade advocates has sold these agreements BECAUSE it does.

    But in truth any country is going to do damn well what they want.  Does anybody think the Chinesse really care about the side agreements in their deal with the US?

    How did the China Deal work out?

    Since 2000, the trade deficit with China has surged by 173 percent, from $83 billion in 2000 to $227 billion in 2009. The United States has lost more than one-third of all its manufacturing jobs -- 5.6 million; U.S. wages have declined; the country has suffered a financial meltdown; it has spent $14 trillion on economic stimulus, only to experience the highest unemployment rates in generations and annual federal budget deficits of more than $1 trillion. These trends are not "likely to end," says Lighthizer.
    Why would we want more of the same?
    http://www.manufacturingnews.com/...
  •  Get on the phone... (3+ / 0-)
    Recommended by:
    Mark Lippman, kurt, divineorder

    and make those critter calls to their staffs -- R and D.  Senate and House.

    According to an Australian newspaper, the TPP is almost concluded and the only outstanding US issue is subsidized sugar production.

    This should be stopped in its tracks.  A trade agreement that the public cannot watch and set up so that the public cannot stop is manifestly too harmful to approve.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Mon Jan 13, 2014 at 02:51:53 PM PST

  •  Thanks for the update! Time to make calls! (0+ / 0-)

    Move Single Payer Forward? Join 18,000 Doctors of PNHP and 185,000 member National Nurses United

    by divineorder on Mon Jan 13, 2014 at 07:43:16 PM PST

  •  Judge Kaplan looks like a good fit (1+ / 0-)
    Recommended by:
    Mark Lippman

    .. and a likely candidate for a high-paying gig as a corporate-whore "jurist" if this monstrosity is allowed to pass.

    He already has experience.

    Dear future generations: Please accept our apologies, We were roaring drunk on petroleum -Kurt Vonnegut

    by Anthony Page aka SecondComing on Tue Jan 14, 2014 at 11:42:44 AM PST

    •  One of the earlier New York District Court judges (1+ / 0-)

      who was involved with the case later served on one of the ISDS tribunals and he wasn't impartial at all.  He had formed an opinion and didn't bother to consider new information.  

      There is no existence without doubt.

      by Mark Lippman on Tue Jan 14, 2014 at 03:15:56 PM PST

      [ Parent ]

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