I'll cut to the chase: now that trade ministers in the 12 countries have reached a preliminary agreement on a Trans-Pacific Partnership draft, I've been trying to keep an open mind since (at least based on their promises) the public would finally have a crack at its contents. But in talking with some old friends from Canada and Australia (I get the sense they pay closer attention to high-impact issues like this over there), I've been shocked at the level of absolute hatred-- violent opposition almost-- that seems to be welling up against the TPP among the populace there. The fury seems to be centered on one element in particular: the Investor State Dispute Settlement provisions. If there are any Aussie, Canadian or New Zealand Kossacks out there in particular, it would be a great help to hear from any of you about the specific policy implications of the TPP on your country's laws and traditions, because based on what I've heard from my own friends, the ISDS impacts alone sound positively horrifying
In short, these are the "corporate courts" that the Wikileaks releases raised so many troubling questions about last year. Even before the TPP the ISDS has come off as a ridiculously corporate and plutocrat-friendly system. As Todd Tucker explained in the Washington Post, the ISDS courts are one-way, and have an outrageous amount of power over sovereign governments. Corporations and investors can sue governments over regulations that reduce profits, but not the other way around, so governments can be on the hook for millions or even billions in litigation fees if investors and corporations decide to launch lawsuits (and they can shop around in countries that are most favorable). And the arbitration panel's arbitrary decisions are binding without appeal, which can cost countries more billions and discourage laws and regulations that do things like protect consumers and the environment.
But, according to my own Aussie and Canadian friends, the ISDS provisions in the TPP make it even worse. Much worse. I'll insert the caveat that we haven't seen the draft that the trade ministers agreed upon yet (though this lack of transparency alone is rather stupid), but the leaked sections are positively dangerous for the well-being of the vast majority of any nation's populace, and it looks like Canada, Australia and New Zealand would indeed be hit especially hard due to their strong protections for their citizens' health, universal health care systems and environmental protections.
If I'm reading this right, Ryan Cooper lays out precisely why this is:, and it has to do with the slimy way that "property expropriation" is defined in the TPP. To be more specific, rather than allowing ISDS corporate lawsuits merely on the basis of seized material property, the TPP outrageously extends this term to cover (quoting Cooper): "nationalization, seizure, or regulations that could negatively affect the stream of future profits — thus the lost profits doctrine. Infringing on future profits is presented as a theft deserving of compensation."
This is a terrible provision for any country, but this is where it gets particularly ugly for Canada, Australia and New Zealand: All 3 countries have universal healthcare systems that they're justifiably proud of, with low and carefully regulated pharmaceutical costs, and they look on in horror at the cruel, predatory US healthcare system with its millions of medical bankruptcies and crippling costs, often forcing patients to choose between necessary treatment or losing all their savings. (AFAIK Japan, South Korea, Peru, Mexico and Chile also have such systems though I know less about them and haven't talked to people from those countries about the ISDS issue.) These countries have universal healthcare because they've cut out the parasitic health insurer middleman, while negotiating hard with pharmaceutical companies to keep drug costs down.
Now, if the ridiculous ISDS definition of expropriation, as leaked above, is still in the latest TPP draft, it seems to suggest that Canada, Australia and New Zealand would in practice have to scrap their universal healthcare systems under the TPP, plus the United States would in effect be barred from further, crucial health reforms to move more towards a single-payer model. Reason is simple: the universal healthcare systems in Canada, Australia and New Zealand are obviously depriving American health insurance companies of profits they could make by moving into the markets of these countries (since universal coverage basically keeps them out), while also reducing profits for Big Pharma companies making a killing from overpriced drugs (like Gilead charging $1000 per pill for the Hepatitis C drug, or Amgen and Pfizer gouging patients with hundreds of thousands in bills for a single course of treatment in America).
And under the TPP's ISDS provisions, where corporate profits (both real and potential) are "the highest good", this reduction in the poor predatory health insurer and Big Pharma profits is flatly illegal. US health insurers like Aetna or United Healthcare, and Big Pharma companies just have to drown the Australian, Canadian and New Zealand courts in a blitz of ISDS lawsuits claiming lost profits-- remember, the corporations and investors have unlimited rights to sue the governments while governments can't retaliate or appeal. And the governments of these countries, crippled by legal costs and arbitrators ruling against them (since, after all, these predatory industries are deprived or profits by common-sense universal coverage systems), will have no choice but to get rid of their single-payer systems (though it sounds like Abbott in Australia and Harper in Canada have already been trying to do that to some extent).
To add insult to injury, these countries (especially Australia and New Zealand) also have much more stringent laws on gun ownership and ammo purchases-- depriving gun companies of profits, so of course the ISDS gives them full rights to sue the pants of the governments for such regulations. Environmental protections? Forget it-- deprive of a polluter of profits, and he'll cripple the government and regulatory authorities with an avalanche of lawsuits (with the costs ultimately shouldered by the taxpayer in Canada, Australia or New Zealand).
I'm sensing this is what my Canadian and Australian friends were so enraged about, and I don't blame them (there was a lot of talk about revolution in the air if the TPP was approved with such provisions intact). This is obviously terrible for us Americans too since the ISDS provisions would block necessary reforms of our own healthcare system and environmental protections. But it would be truly horrible for the Canadians, Australians and New Zealanders that have long had at least some policies to protect their health and well-being through universal coverage, against the interests of corporate predators. I simply can't believe that Obama is pushing this-- he already has a strong legacy with the ACA, his environmental protections and SCOTUS picks, WTF is he thinking here in pushing for an additional "legacy" that would undo so much of what he's done elsewhere? (And why would any Democrats support this mess? You sell-outs are going to be facing a primary challenge for your betrayal!)
Far too many Americans are too distracted by bread and circuses to riot in the streets, but I hope all of you in Oz, Canada and New Zealand are not so complacent. Protest, get mad, and fight this thing tooth and nail-- your lives (and ours in America) literally depend on it!
PS I'll be off at work so won't be able to respond to comments but thank you in advance to anyone who can contribute further information on this topic. I hope I'm wrong about the ISDS provisions in the TPP, but based on what the mainstream experts seem to be suggesting in very mainstream news sources, these provisions are just flat out dangerous to the people.
