Trade deals and Investment Treaties – How companies can sue whole nations and win.

This is the title of a fringe session I will be doing at the Green Party Conference at St George’s Hall, Liverpool, at 17.00 on Sat. the 1st March.

The blurb for the session reads:

Inside trade deals like the TTIP between the US and  EU are Bilateral Investment Treaties. There are now over 3000 of these treaties. They give corporations the right to sue a nation for “loss of earnings.” The companies sue not in an international court but at a special tribunal. The tribunals trump any and all local and national laws. They meet behind closed doors, their decision is final, there is no appeal and their awards – often in the hundreds of million are internationally enforceable.

They are a threat we need to understand.

I will also, as promised but long overdue, write an article for the blog.

It would be great if any of you wanted to come along. You would be welcome though I think you have to book a visitor ticket.

63 thoughts on “Trade deals and Investment Treaties – How companies can sue whole nations and win.”

  1. Linda Kaucher is on Keiser with the main points – http://rt.com/shows/keiser-report/episode-560-max-keiser-047/

    Basic written details here: http://occupylondon.org.uk/information-kit-useu-transatlantic-trade-and-investment-partnership-ttip/

    We have never been equal under the law. It’s interesting they can get together to promote secret restrictive practices for rich corporations but not work on something that would protect us as individuals from so-called global pressures.

    I link moves like this with our general failure in public scrutiny. There seem to be common problems across the board.

    1. Actual evidence is intentionally suppressed by ensuring it is not recorded. We can transmit real time visuals of (say) the raid on Bin Laden, but cops doing hard stops (as in the Duggan case) find it ‘impossible’ to have cameras to record an action knowing eye-witness testimony is dire. In finance, the offshore block is built in to ensure lack of transparency.
    2. Courtrooms become a filter on what the jury gets to witness as evidence.
    3. Regulatory bodies are created with inadequate staff to do investigations and highly suspect establishment figures in charge. Investigators are rarely independent.
    4. Justice delayed in justice denied – Hillsborough happened when?
    5. Investigations need to take place early before evidence can be destroyed, tampered with and collusive excuses made up. Instead we let cops bar entry to investigators (Stockwell), refuse to be interviewed and criminal investigators not let in at all in most financial frauds.
    6. When a regulator (like the IPCC or FSA) is seen as a total failure, they either change its name or make it bigger. The IPCC is a total failure, so let’s triple it in size.

    This is all happening just as technology could give us a lot of real time transparency and cut reliance on much we know unreliable like eye-witness testimony, crude statement taking, excuses made up after the fact and wager of law through lawyers and amenable judges. TTIP strikes me a yet another example of creating ‘regulation’ conducted behind closed doors. The phrase ‘justice must be seen to be done’ is very strange. Public Inquiries seem to prevent it!

  2. A shame you’re not going to be at the annual Positive Money conference in London on 1 March David.

    Keep up the fantastic work.

  3. You can bet no group of workers who see their minimum wage slashed by corporate-crony-government types will have access to this arbitration! I’m fascinated by the presence of the internet and lack of collective action against what Hudson describes in the link from Hawkeye. Our lack of resistance is scary.

    Our institutions of public scrutiny are in a chronic state. I followed the Duggan Inquest very closely, only to find the content and coverage farcical. One could learn more from Channel 4’s ‘Babylon’. ‘Screenwipe’s’ Philamena Cunk could tell us more about these trade machinations than all the world’s economists and lawyers. It must surely be impossible with today’s electronics to put together international juries of ordinary folk to remove national prejudice? Much better to have an elite group decide in secret, in a dispassionate manner for their corporate lords … she might say. I couldn’t possibly comment.

    The Duggan Inquest and various Iraq inquiries were held in public, at least until wrongdoing might be exposed. They were hapless. Quite what secret courts will produce, other than worse, is hard to imagine. Maybe our last best hope will be the lawyers? With bloated fees they may take so much time ‘earning’ that we will get 10 year delays.

  4. David Malone, and Men and Women like David Malone will save our democracy if we send them to Westminster insisting on a House of Commons for the Common People not big business and Financial Bandits.

    Posted to Face book, and twittered, will blog, Google plus one and probably write a song, something to get behind.

    Just posted this on my Facebook Page David and asked all my friends to like your page. I suggest all your regular readers who feel the same as me do like wise. Count on me to do whjat I can to stand Virtual to Virtual shoulder with you, and if you need help on the hustings I would happily come and knock on doors for you when the time comes.

    ”I do not personally support any political party for my part I would vote for who I felt would sincerely represent the interests of my Family and community regardless of their Branded political affiliation. David Malone is a sincere and brilliant man and I am hoping my freinds will show support for his candidacy in Scarbourough running for the Green Party. I will happily like support and do what ever I can to assist any Candidate in the next election who is vouched for by someone I trust and respect as a supporter of Democracy and local communities, keep Big Business and Big Finance out of politics lets take it back to the grass rootshttps ://www.facebook.com/david.malone.greenparty´´

    Lets take back our democracy and get behind the good ones and just not vote for seats where there are no candidates declared for the people against the Robber baron interests.

  5. Bagehot-by-the-Bay

    Hope you include the proposed Trans-Pacific Partnership (TPP) in your discussion: a US–Pacific Rim deal with very disturbing elements. Yves’ Naked Capitalism blog is a good place to start for links and coverage. Fight the good fight against the ideologues capturing the language and call out anyone using the phrase “free trade agreement.” These are at best “trade agreements,” and usually worse.

  6. I totally agree with Roger’s comment. Democracy no longer exists for the common man/woman. Our politicians are nothing more than mere mouthpieces of these global companies who have no interest in the common people, only their ever increasing profits and influence.
    We need more people with integrity and honesty to replace this corrupt bunch. I would also posit that we need a different system of representation that is not centred on the Westminster Village. We need those who will truly represent the people and not just the powerful. But, at this stage, developing a different political system may well be a step too far! The power has to be wrested back from the corrupt elite and returned to the ordinary man/woman.
    David Malone, Owen Jones and the like, your country needs you!
    Let me know how I can be of assistance.

  7. Roger, Jeremy S,

    What can I say but that I should be proud to be what used to be called and should still be called – a servant of the people. It may sound impossibly old fashioned but I personally believe it.

    I will need help and will ask.

    Thank you again.

  8. http://en.wikipedia.org/wiki/Champerty_and_maintenance

    http://www.economist.com/news/finance-and-economics/21575805-fat-returns-those-who-help-companies-take-legal-action-second-hand-suits

    http://www.aglitigation.com/

    A friend of ,deals with people investing in this sort of Litigation, The more I thought about it the less benign it felt and seemed. Similar to arguments for derivatives based on hedging one suspects that with Investment litigation which is burgeoning will very quickly become divorced from any real utility.

  9. harold wilson's pipe

    Interesting (but distressing) reading.

    Is it relevant to ask here whether UK readers are aware of the NoneofTheAbove party proposing to stand in 2015?

    http://notavote.co.uk/

    Time for a fundamental change

    Picture caption: The not very honourable David Cleggaband…Nota wants to tackle a system where all three main parties are so similar

    NOTA represents a meaningful campaign to put None of the Above on all ballot papers for future elections and give the electorate real democratic power – the power to say we don’t approve of any of the parties listed.

    If we are successful None Of The Above would become an official option at the bottom of all ballot papers. Then everyone has the opportunity to register a vote of no confidence in all the parties and candidates put forward. Some may call it a protest vote but it is much more than that. It is the cornerstone on which a truly inclusive democracy can be built.

    Why do we need NOTA?

    To attract people back to the polling station and improve the democratic process by counting and publishing all votes cast including NO votes. Presently little over 50% of the electorate regularly vote and the winning party can gain a mandate with the votes of only 25% of the electorate. This is not a fair democratic system.

    Many people don’t bother to vote and this needs to be rectified. Not voting may be a protest but, currently, it is counted as simply not participating and can be dismissed as voter apathy with no further analysis. [continues…]

    Your thoughts welcome (if this is the right place)

    1. Did you know Harold actually smoked cigars and used the pipe only in his public image-making? Our house has been convinced we need the right to vote ‘no we don’t want any of you lot’ since Blair stopped spoiled ballots being counted.

      This is relevant to TTIP as really any sensible person would want our institutions discussing something entirely different. We could easily have a vote of no confidence alongside current lesser-of-several-evils ballots.

      Even arguing against TTIP plays into the hands of the establishment game of pretending consultation – and we are drawn in to argument framed against what we want. It’s like being in a courtroom denying the legitimacy of the court – hapless other than as a martyr’s gesture to history.

      We can have our second three-penny-worth next month in the second EU consultation on TTIP. I can’t find any analysis of the consultation last year on the relevant site. This was via a questionnaire that melted into air if you didn’t complete in 90 minutes – though they did warn one to do the work beforehand and cut and paste. The offer was essentially ‘put in hours of work and then we’ll ignore you’.

      Robin Broad has put a lot of the argument together – précis today at http://www.nakedcapitalism.com/2014/02/governments-activists-fighting-corporate-right-sue-governments.html

      The problem as I see it is that if contributors in here could imagine being round a boardroom table discussing TTIP, how long would it be before we had a show of hands and decided not to do it and re-allocate the resources to something else, even doing nothing?

      Like voting itself, we get no chance to frame what it is we want to vote on.

  10. backwardsevolution

    The Corporate Invasion:

    “The TTIP/TAFTA would vastly increase the bill for this legalised extortion, given the scale of the transatlantic trade interests at stake. Some 3,300 EU parent companies own more than 24,200 subsidiaries in the US, any one of which could decide to bring a claim. The scale of the threat far exceeds that associated with all previous agreements. The EU would be exposed to an even greater financial threat, given that 14,400 US-based corporations own more than 50,800 subsidiaries in Europe. In total, the TTIP/TAFTA would enable 75,000 companies in the US and the EU to attack public funds. […]

    The business lawyers who make up the tribunals are not accountable to any electorate. Many of them alternate between serving as judges and bringing cases for corporate clients against governments (5). The club of international investment lawyers is very small: 15 of them have handled 55% of all the cases examined to date. There is no appeal mechanism for their decisions. […]

    There is no limit to the amount of money a tribunal can order a government to pay a foreign company. A year ago, Ecuador was ordered to pay an oil company over $2bn (7). Even when governments win, they must pay the tribunal’s costs and legal fees, which average $8m per case, wasting scarce resources on defending public interest policies against corporate challenges. Governments often prefer to settle out of court: Canada avoided going before a tribunal by hastily reversing a ban on a toxic petrol additive.”

    http://www.counterpunch.org/2013/12/06/the-corporate-invasion/

    This is a very good article that spells out a lot of facts.

  11. The article linked by Backwardsevolution ends:
    ‘Nearly all the studies on the TTIP/TAFTA have been funded by institutions in favour of free trade or by business organisations, which is why they do not mention its social costs or its direct victims, who could number in the hundreds of millions. But all is not yet lost. The fate of the MAI, the FTAA and some rounds of the WTO negotiations indicates that attempts to use trade as a sly way to dismantle social safeguards and install a junta of business leaders can be blocked.’

    In some ways, the debate misses the point of why we don’t have international safeguarding legislation in the pipeline, especially as the non-planet-burning economic growth area is largely in green technology and lifestyles. How did we get into the mindset in which social provision and heath care are costs on various and private holy businesses? It’s not only social costs and direct victims off the TTIP table, but also the issue that “private capital” ain’t working.

    Many of us are unemployed-underemployed (or doing jobs we know have little point other than keeping the wolf from our door) while there are ditches to dig, rivers to dredge and green capacity to build. The kind of people discussing TTIP in our institutions should be looking at the design and implementation of a new economic and financial model. More correctly, we should be able to vote in the kind of people who would.

    The financial gains promulgated in TTIP come from an already discredited economics and amount to rabbits out of the hat. The key economic fiction involved is the theory of comparative advantage, based on 17th and 18th century homilies linked to other fictions like “free trade”, including dross like ‘private debt doesn’t matter because it zeroes out in double entry book-keeping’. All the alternatives to this are kept out of the TTIP-type scenarios, including the distortions of accumulated money (as opposed to social wealth and capacity) and finance as dead-weight economic rent. These distortions are massive compared with welfare spend or what an international-service work programme would cost. I say “cost”, yet would new bridges, transport systems, dry homes, actual homes for actual people and the rest be a cost?

    We need to stop TTIP, yet we also need to go on the offensive against those writing the agenda. Generally they just play a waiting game until we are forced back to the day job. It’s all a bit like owners starving workers into submission and then halving wages.

  12. A time will come when the creditor has not yet lent while the debtor
    never quits
    SAVAGES. BARBARIANS. CIVILIZED MEN 197repaying, for repaying is a duty but lending is an option—as in Lewis
    Carroll’s song, the long song about the infinite debt:
    A man may surely claim his dues: But,
    when there’s money to be lent, A man
    must be allowed to choose Such times
    as are convenient.49
    The despotic State, such as it appears in the purest conditions of
    “Asiatic” production, has two correlative aspects: on the one hand it
    replaces the territorial machine, it forms a new deterritoiialized full
    body;

    Anti oedipus p. 182

    Even the most ancient African myths speak to us of these blond men.
    They are the founders of the State. Nietzsche will come to establish the
    existence of other breaks: those of the Greek city-state, Christianity,
    democratic and bourgeois humanism, industrial society, capitalism, and
    socialism. But it could be that all these—in various ways—presuppose
    this first great hiatus, although they all claim to repel and to fill it. It
    could be that, spiritual or temporal, tyrannical or democratic, capitalist
    or socialist, there has never been but a single State, the State-as-dog that
    “speaks with flaming roars.”40 And Nietzsche suggests how this new
    socius proceeds: a terror without precedent, in comparison with which
    the ancient system of cruelty, the forms of primitive regimentation and
    punishment, are nothing. A concerted destruction of all the primitive
    codings, or worse yet, their derisory preservation, their reduction to the
    condition of secondary parts in the new machine, and the new apparatus
    of repression (refoulement). All that constituted the essential element of
    the primitive inscription machine—the blocks of mobile, open, finite
    debts, “the parcels of destiny”—finds itself taken into an immense
    machinery that renders the de bt i nfinite and no longer forms anything but
    one and the same crushing fate: “the aim now is to preclude pessimisti-
    cally, once and for all, the prospect of a final discharge; the aim now is to
    make the glance recoil disconsolately from an iron impossibility.”41 The
    earth becomes a madhouse.

    4.2 http://plato.stanford.edu/entries/deleuze/
    Desiring-production is thus not anthropocentric; it is the very heart of the world. Besides its universal scope, we need to realize two things about desiring-production right away: (1) there is no subject that lies behind the production, that performs the production; and (2) the “desire” in desiring-production is not oriented to making up a lack, but is purely positive. Desiring-production is autonomous, self-constituting, and creative: it is the natura naturans of Spinoza or the will-to-power of Nietzsche.

    I have been working on a graphic/ Video on the concept of 1 and unity ended up halfway through After Oedipus, worse things have happened.

  13. p.197 http://1000littlehammers.files.wordpress.com/2010/02/anti-oedipus-fixed.pdf

    Basing himself on the research of Edouard Will, Michel Foucault shows
    how, in certain Greek tyrannies, the tax on aristocrats and the distribution of
    money to the poor are a means of bringing the money back to the rich and a
    means of remarkably widening the regime of debts, making it even stronger, by
    anticipating and repressing any reterritorialization that might be produced by the
    economic givens of the agrarian problem.48 (As if the Greeks had discovered in
    their own way what the Americans rediscovered after the New Deal: that heavy
    taxes are good for business.) In a word, money—the circulation of money—is
    the means for rendering the debt infinite. And that is what is concealed in the
    two acts of the State: the residence or territoriality of the State inaugurates the
    great movement of deterritorialization that subordinates all the primitive
    filiations to the despotic machine (the agrarian problem); the abolition of debts or
    their accountable transformation initiates the duty of an interminable service to
    the State that subordinates all the primitive alliances to itself (the problem of
    debts). The infinite creditor and infinite credit have replaced the blocks of mobile
    and finite debts. There is always a monotheism on the horizon of despotism: the
    debt becomes a debt of existence, a debt of the existence of the subjects
    themselves. A time will come when the creditor has not yet lent while the debtor
    never quits

    ‘How good! How great!’ poor Peter cried. ‘Yet I must sell my Sunday wig— The scarf-pin that has been my pride— My grand piano—and my pig!’
    Full soon his property took wings: And daily, as each treasure went, He sighed to find the state of things Grow less and less convenient.

    p.68 Lewis Carols Poem, well worth a read.
    http://www2.hn.psu.edu/faculty/jmanis/carroll/sylvie.pdf

  14. Made my day with that one Just. Perhaps TTIP is the poolshark in the picture series? I needed the laugh as I’ve been re-reading Max Weber. Roger’s contribution reminds me how biological-anthropological politics-power-finance is. Many, but not all social animals have leaders-hierarchies that keep the rest of the group or pack poor even in resource rich times. Our debt system looks a lot like the blood debt system of the Lele.

    In some silo alongside TTIP the EU is discussing a giant saver bail-in to create productive investment banks are failing on. Reuters has the document somewhere. Our institutions should be formulating a money sequestration, debt jubilee, green energy and home and utility safeguarding strategy in the context of new agreements on comparative advantage and democratic government.

    Pie in the sky when we have actual governments so good they hand out sandbags and bailing buckets after predicted floods. TTIP and much similar amounts to asking us to cool the room down by turning the fire up to increase the profits of the energy company that might do some social responsible greening at an undisclosed future.

    As to flaming oars, one suspects EU health and safety gnomes would require we insured our rivers and seas against fire risk before use.

    1. Wow Andrew – that takes the biscuit…

      “Meanwhile, Chase’s own head of commodities operations, Blythe Masters – an even more famed Wall Street figure, sometimes described as the inventor of the credit default swap – admitted that her company’s warehouse interests weren’t just a casual thing. “Just being able to trade financial commodities is a serious limitation because financial commodities represent only a tiny fraction of the reality of the real commodity exposure picture,” she said in 2010.

      Loosely translated, Masters was saying that there was a limited amount of money to be made simply trading commodities in the traditional legal manner. The solution? “We need to be active in the underlying physical commodity markets,” she said, “in order to understand and make prices.”

      We need to make prices. The head of Chase’s commodities division actually said this, out loud, and it speaks to both the general unlikelihood of God’s existence and the consistently low level of competence of America’s regulators that she was not immediately zapped between the eyebrows with a thunderbolt upon doing so. Instead, the government sat by and watched…”

  15. Does anybody else have problems getting into the contents of this website? I have experienced it twice over the last few months; each time for a number of days. The website itself opens, slowly compared to other sites, but the not the actual contents. I have tried for four days this time. The computer says “server not responding”

  16. “…They give corporations the right to sue a nation for “loss of earnings.” …”

    Hyperbole. They give corporations the power to sue GOVERNMENTS for obstructing their business activity.

  17. Dave, re politics and finance; they are inseparable, politics is life and life is politics.

    From the micro level of the child playing her parents off of one-and-other, all the way up to the geopolitics of the petrodollar.

    To wit, man will never be free, until the last banker is strangled with the entrails of the last politician.

    Or vice-versa.

    For me, I’d prefer disembowelment of my representative (or staff) first and then strangulation of my local banker (or teller).

    More personal and satisfying that way.

  18. A motion will be presented at the Left Unity National Conference in Manchester March 29 (based entirely on the one the Green Party have already accepted) that a Left Unity Government will develop and implement a programme of banking reform based on the following principles

    a) All national currency (both in cash and electronic form) will be created, free of any associated debt, by a National Monetary Authority (NMA) that is accountable to Parliament;

    b) The 1844 Bank Charter Act will be updated to prohibit banks from creating national currency in the form of electronic credit. To finance their lending, investment or proprietary trading activities, banks will have to borrow or raise the necessary national currency from savers and investors;

    c) The NMA will be mandated by law to manage the stock of national currency so that it is sufficient to support full employment, while avoiding general inflation in prices, and taking into account the development of local currencies;

    d) Any new money created by the NMA will be credited to the account of the Government as additional revenue, to be spent into circulation in the economy in accordance with the budget approved by Parliament;

    e) The members of the NMA will be appointed – for fixed terms – by a Select Committee of Parliament;

    f) The independence and integrity of the NMA will be assured by law requiring NMA members and staff to be free of any conflict of interest; mandating full transparency of NMA decisions; and prohibiting lobbying or undue influence of NMA members or staff by government, financial institutions, corporations or any other private interest.

    1. Is this (your talk at the Green Party Conference today) being recorded David? I was hoping to come, but last minute family chaos means I will have to wait for your blog or maybe a video.

      1. Hello nexangelus,

        The talk was recorded and went really well. Plenty of people turned up and I think I made a fairly good fist of getting some important points across.

        I also had a good talk to Molly Scott-Cato and met the Green Party Leader, Natalie Bennett about what I could do to feed into Green Party thinking on Finance. Both were open to the idea. So all in all a good couple of days.

        I hope the video wil make it up on to YouTube (though I somewhat spoiled the video by answering questions as I went along when I should have insisted people wait until the end. My fault) and I will now be able to write up a version. Lots of those who were at the talk wanted to follow up what they heard with something written.

        1. The Positive Money conference when well too David – your name was mentioned in reference to the Greens adopting a policy to prevent banks creating the money supply as debt.

          Let’s hope Left Unity do the same and the combination gets the major parties think about it.

          The economic system has to change or we are in deep trouble and it wont change without political willpower.

          1. Morning Joe,

            Thanks for letting us know. Glad it was good. It’s funny isn’t it, just how much political will and energy there is – just not in the major parties and rarely given any voice in the media?

            But it’s there. Get people started, give them the facts and ways of understanding them and the energy just bubbles up.

  19. It was lovely to see you at the conference and it was also great to be in the splendour of St George’s Hall. Once upon a time citizens could build fantastic public places like this. A good and very personal and well run workshop and conference.

  20. Any sign of some longer analysis here yet David, just linked to this on a facebook discussion re Big Corporations saying they will leave UK if UK outside of EU? Didn’t banks say the same thing about the EURO? Saw the first Farage Clegg debate must watch the second one. I mentioned on Facebo0ok that the Greens were adopting monetary reform as a policy, wondered what UKIP were saying obviously they dislike the Euro, what of the ´´ Fresh Air ´´ pound?

  21. https://www.facebook.com/steviewardsuperstar/posts/10151944331011486?comment_id=10151944701986486&offset=0&total_comments=11&notif_t=share_reply

    I don’t know if this link will work. Stevie is an old mate a wizened Gigging Rocker and it’s interesting to see his take on things. UKIP bat a sticky wicket vis, immigration. Personally I feel immigration is a way used by Neo/Libs to undernmine labour collective bargaining and so UKIP are partially right on this issue, the question is are they right for the right reasons?
    It all ties back to the question of democratisation of Money and the balance of power between Capital and Labour. Labour has had a severe beating for the past 35 years. How does one fight back and save Social Democracy?

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