Here is some commentary from Lori Wallach,who is a keynote speaker, along with Jane Kelsey in anti-TPPA meetings around the country.
Interest Takes a Hit Even When Phillip Morris' Investor-State Attack
on Australia Is Dismissed
happens when a government "wins" an investor-state dispute
settlement (ISDS) attack provides a cautionary tale for the threats
posed by the Trans-Pacific Partnerships (TPP). If enacted, the TPP
would double U.S. ISDS liability overnight.
Phillip Morris International's infamous ISDS attack on Australia was
dismissed. An ISDS tribunal ruled that it did not have jurisdiction
to order Australia to compensate Philip Morris after the firm
attacked Australia's public health law requiring that tobacco product
packages feature graphic warning labels with the brand and product
names in a standardized color, size and font.
just the same, Australians saw more than $50 million of their tax
dollars go to legal costs to defend against the attack, according to
World Health Organization Director General Margaret Chan. This
includes having to pay the three private lawyers who served as
"judges" during the four-year ordeal. They bill at least
$375 per hour and, in a manner that would be unethical for real
judges, often rotate between suing governments for corporations and
just by launching the case, Phillip Morris chilled other nations from
enacting similar legislation to avoid being the next target. One
Zealand held off on its own plain packaging proposal to
see what happened with Australia. This after Canada's efforts to
enact plain-packaging legislation died after R.J.
Reynolds sent a memorandum to
the House of Commons arguing the policy would constitute an illegal
expropriation under the North American Free Trade Agreement's ISDS
regime, exposing Canada to millions in liability.
another ISDS tribunal already has ruled that Phillip Morris' attack
on Uruguay for enacting similar plain packaging policies can
So the tobacco giant still is in the ISDS game to raid a government's
treasury and chill other nations' tobacco policies. The day of the
Australia ruling, a senior Philip Morris official declared: "There
is nothing in today's outcome that addresses, let alone validates,
plain packaging in Australia or anywhere else."
when a government "wins" an ISDS case, the public interest
is usually still the loser.
is worth noting. When trying to distract from the fact that the TPP
would double U.S. ISDS liability overnight if enacted, TPP boosters
often note that the U.S. has not yet lost an ISDS case. The
controversial ISDS regime allows foreign corporations to skirt
domestic courts and laws and go to extra-judicial tribunals to demand
compensation from governments over laws or actions that they claim
violate special investor privileges granted in trade and investment
U.S. has not lost a case because it has been rarely sued because the
past ISDS-enforced pacts we have now are almost all with developing
nations with few investors here - unlike the TPP, which includes
Japan and Australia. If the TPP is enacted, we can expect a flood of
new ISDS attacks against the U.S. government.
foreign corporations like Philip Morris can bring cases - governments
or citizens don't have a similar procedural right to hold
corporations accountable under these agreements. And the OECD reports
that governments spend an average of $8 million defending against
these cases even if they "win." But the government of the
Philippines - like Australia - has spent more than $50 million in
legal fees in an ongoing case. (Phillip Morris has insisted the
proceedings remain secret, so the ruling has not been made public so
it is impossible to know for sure, but only in a small minority of
cases have tribunals required the losing party to pay the legal fees
and arbitration fees in such case.)
of the ISDS regime declared that the Australia decision proved the
controversial extrajudicial legal system does not pose threats to
countries' public interest laws.
Everyone expected that the tribunal would throw this case, if
only in the name of self-interest. Ruling for a company like Phillip
Morris in a highly publicized case against a developing country's
health policy could have done serious damage to the ISDS regime and
the lucrative hourly fees paid to tribunalists.
well known was this case? If you want a funnier version, check out
Public Interest Takes a Hit Even When Phillip Morris' Investor-State Attack on Australia Is Dismissed
The U.S. has not lost a case because it has been rarely sued because the past ISDS-enforced pacts we have now are almost all with developing nations with few investors here - unlike the TPP, which includes Japan and Australia. If the TPP is enacted, we can expect a flood of new ISDS attacks against the U.S. government.
For a more humourous view