Author here: that is not disputed. However the ISDS in CETA is a permanent tribunal where both Canada and Europe elect lawyers equally. The processes also require transparency and there is an appeal process. None of that was in the original draft of it and has been added over time as a response to criticism.
There is nothing wrong with ISDS.
The argument against is cases like the Philip Morris v. Uruguay case. Why couldn't the same happen under CETA?
If you don't see ISDS itself as objectionable, it's not surprising that you disagree with the argument against CETA, but please try to understand where opponents are coming from.
That's the wrong question to ask even though there is a very simple answer to it: that the state is not impartial. The better question to ask is why ISDS exists in the first place and this is something that the states and governments came up with and not the companies.
> The argument against is cases like the Philip Morris v. Uruguay case. Why couldn't the same happen under CETA?
Phillip Morris lost the case. Cases should be judged by the outcome and not by the pure fact that it takes place. You can drag someone in front of a court of a lot of things. As far as CETA goes you can only claim unfair discrimination and a whole bunch of things are outright excluded. In particular an investor has very bad cards due to both the health and ethics aspects of CETA.
In any case that is all super irrelevant anyways as countries already signed a ton of BITs that include significantly inferior ISDS provisions. The company in question is currently dragging a few countries in front of ISDS courts without the help or need of CETA. ISDS would have to be discussed separately and not in the context of CETA. As far as ISDS goes, CETA is an improvement over prior contracts.
If you want to replace ISDS then companies will just walk up the local justice systems which will not be any cheaper or more efficient and that might go all the way up to the supreme court or the highest european courts.
> If you don't see ISDS itself as objectionable
I understand the arguments against it very well but instead of throwing the entire concept away I find it much more reasonable to attack the individual points of criticism and that's what CETA was about. If you want to kill the entire concept then we just open up a new hole that will need filling.
The judiciary is what is in question, not the state per se.
But even if they're not impartial, is that necessarily bad here? Shouldn't the health of a country's citizens take priority over the interests of shareholders? Why should foreign businesses have greater rights than local businesses? (this is the contention of the Australian government)
> The better question to ask is why ISDS exists in the first place and this is something that the states and governments came up with and not the companies.
The nature of how trade deals are negotiated means we don't necessarily know who came up with it or pushed for it. But it's irrelevant in any case. What matters is its effects.
> Phillip Morris lost the case. Cases should be judged by the outcome and not by the pure fact that it takes place.
Plenty of these cases have been lost by governments. For example: https://en.wikipedia.org/wiki/Investor-state_dispute_settlem...
> In any case that is all super irrelevant anyways as countries already signed a ton of BITs that include significantly inferior ISDS provisions.
It's because of existing ISDS provisions that we know of their problems. Why do we need even more?
> If you want to replace ISDS then companies will just walk up the local justice systems which will not be any cheaper or more efficient and that might go all the way up to the supreme court or the highest european courts.
“All the way up to the highest European courts”? That's not how the EU's legal system works. You can't just appeal cases to the EU level.
I'm unconvinced it would not be cheaper to sue at a national level, anyway. If only because local courts are less likely to award a huge payout in such cases.
It is in CETA.
> The nature of how trade deals are negotiated means we don't necessarily know who came up with it.
Arbitral tribunals predate modern day FTAs by 150 years or more. If you have an interest in this you can easily read up on why they exist.
> Plenty of these cases have been lost by governments.
I am aware since I read about all of them in the last few months but this is going into details. Out of the ones that have been lost, the initial NAFTA case has even been controversial among the signatories. However there are plenty of other court decisions in traditional courts that I would argue are not any less controversial.
> It's because of existing ISDS provisions that we know of their problems. Why do we need even more?
I am not sure about Canada, but the EU does not want more, they want better ISDS provisions since the current ones are quite defective in many ways.
> “All the way up to the highest European courts”? That's not how the EU's legal system works. You can't just appeal cases to the EU level.
You can definitely drag cases in front of the ECHR. Case in point: Yukos.
Anyways. This entire conversation is something that is completely removed from the original point of the article which was moving goalposts. I do not actually see a value having a conversation about CETA, particularly now.
Perhaps. I feel that your article misrepresented the argument against CETA when it used it as an example. I realise that you probably don't want to argue about this (nor do I, really), but I felt it was important to provide a contrary perspective. That's all.
Your Python3 example works for me. But CETA does not. It just does not support your point.
There have been huge protests against TTIP and CETA in Germany and around Europe, and you can't resolve their legitimate concerns by saying "excuse me sir, but by your own logic, you just proved my point".
That is true for the group of people that nearly derailed CETA in Austria (green party and the right wings party). I don't think I wrote everybody.
A bad example. Let's use one were the plaintiff actually was successful.
http://www.theglobeandmail.com/report-on-business/ottawa-pay...
http://spectrum.ieee.org/energywise/energy/nuclear/swedish-e...
States can't be expected to be impartial.
Investors and citizens should rightfully expect protection from discrimination and uncompensated expropriation. We're in an era of economic nationalism (Brexit, Trump) and easy access to impartial protection of rights and rule of law is more important than ever.
This isn't just protecting big business - half the cases in US agreements concern small to medium busiensses who can't afford to know every local law in every nation nor afford teams of lawyers[0]
I don't think there is anything wrong with the concept of ISDS - without it it's arguable that it would have been difficult to develop the trade agreements in the 60s and onwards that sprouted the current crop of developing nations.
The problem and more recent phenomenon is with corporations becoming more creative in exploiting old agreements. This is being fixed in the more recent agreements. I don't think you'd find anybody defending the old agreements and their very loose definitions of expropriation (or lack of)
Canada would know - they've lost 7 cases with NAFTA and learned a lot in redeveloping ISDS for CETA[1]
[0] https://ustr.gov/about-us/policy-offices/press-office/fact-s...
[1] http://www.nationalmagazine.ca/Articles/March-2016-Web/CETA-...
Huh? ISDS isn't about enforcing the trade deal (which might also go to arbitration), it's a separate issue.
Bypassing democracy with pseudo-courts and pseudo-legislation and pretending it is ok is insulting to the citizens.