Politico's nothingburger story on Warren's ISDS is an undisguised hit piece.
Politico seems to be confused about the meaning of hypocrisy. Thursday, it offered up
a 31-paragraph hit piece on Sen. Elizabeth Warren founded on her participation in a trade arbitration process 15 years ago that she has now made a centerpiece of her opposition to fast-track trade legislation.
Warren is one of the leaders of the effort to block passage of fast-track legislation—known formally as Trade Promotion Authority. This would authorize the president to negotiate trade agreements and present them to Congress for an up or down vote with no amendments allowed. Supporters say this is essential to complete trade agreements. Critics say TPA undermines democratic controls.
A key element of Warren's (and others') fast-tracking opposition is the presence in the Trans-Pacific Partnership draft agreement of what is called investor-state dispute settlement (ISDS). This allows a corporation to seek damages via arbitration tribunals when they feel their bottom line is being harmed by government regulations they deem to be unfair. Several existing trade agreements, including the North American Free Trade Agreement, contain these arrangements.
But the Politico piece makes a big, big deal out of the fact that, a decade and a half ago, Warren was paid $200 to $400 an hour as an expert witness on bankruptcy in the case of a Canadian funeral home operator, the Loewen Group, that sought $725 million from the U.S. government under NAFTA. The implication is that there is a disconnect (if not something downright unethical) between the fact she accepted payment for participating in process she now decries as violating U.S. sovereignty with "rigged, pseudo-courts."
But Warren's participation in the Loewen Group arbitration was not unlike that of any expert witness in any case. The ISDS process exists and, thus, the United States has no choice except to be involved if a corporation goes after it. Just as any defense lawyer must work within the system as it actually operates, not the one he or she would like to have in place, Warren provided expertise that, arguably, helped the United States defeat the Loewen Group's claim. Nine paragraphs in, after the authors' implications of hypocrisy are well-seated, we get a what's-the-big-deal statement from Warren's office and this:
Ted Posner, a specialist in international arbitration cases and a former George W. Bush administration trade official, argued that Warren’s involvement in the 2000 case was an “interesting tidbit” but ultimately not relevant.
“I really don’t see any connection between her provision of expert advice to the government in Loewen and her position on ISDS in her current capacity as a U.S. senator,” said Posner, who is a partner at the law firm of Weil, Gotshal & Manges. “The advice she gave in Loewen was in her capacity as an expert on U.S. bankruptcy law. She was not acting as an expert on ISDS.”
Ultimately not relevant, indeed. Just a potshot. Way off the mark.