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Comment by natch | Hacker News Reader

In English, anyone?

It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working.

Maybe an example up front would help. Something like: If this is enacted, then ... (some common use case involving fair use and how it would be impacted).

I know it takes a lawyer to read this stuff. But they should maybe pass it through a couple of layers of translation to try to communicate what it means, so that people can get on board with opposing it, if that's the right thing to do. If EFF can't communicate this stuff, who can?

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The comic[1] that I posted in the previous thread has a nice overview about the situation.

The specific issue the EFF article is pointing out is how the ISDS is designed to trumps national sovereignty, so business can strong-arm countries into removing any law they don't like.

It works more or less like this:

1) pass TPP as a treaty, which by definition has the same power as a constitutional amendment. (this is probably a serious bug in the constitution). This means TPP trums congress.

2) TPP sets up an international tribunal (ISDS) that hears complaints from businesses. (i.e. "Australia is hurting our tobacco sales with their plain packaging laws"[2])

3) The tribunal, as mentioned in this article, would be staffed by, "three private-sector attorneys who take turns being the judge and the corporate advocate." This conflict of interest would be a serious violation of ethics requirements in most legal systems.

4) The tribunal rules that your local law violates some foreign requirement, as determined by the ISDS and their business-assigned judges, and the local legislature is forced to repeal the law. ("Australia's plain packaging laws is seizing the trademarks of Philip Moriss, in violation of a 1993 trade agreement if we carefully abuse the agreement's language")

That's the short version, and I'm leaving out some details, of course. It should work as a decent overview of ISDS is a threat to national sovereignty.

[1] http://economixcomix.com/home/tpp/

[2] this example is covered well by John Oliver: https://www.youtube.com/watch?v=6UsHHOCH4q8

edit: oops.. s/ISPS/ISDS/

Treaties do not have "the same power as a Constitutional amendment." They have the same power as ordinary laws. See: http://en.wikipedia.org/wiki/Head_Money_Cases. And the Constitution takes precedence over both: Reid v. Covert. If they are not self-effectuating and Congress does not pass enabling legislation, they have no domestic effect. See: http://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas.

...because you don't see any laws that goes against the constitution being ruled everyday.

Rayiner already addressed point 1, so I'll take a swing at 3.

Most legal systems, demonstrated here by the ABA model rules of professional conduct for lawyers, would not consider this a conflict of interest, unless the lawyer were arguing for both sides in the same case. See Rule 1.7.

In these tribunals, government and corporate parties aren't two sides of every fight, they're arbitrary categories of parties. All good legal systems allow private parties to bring suit against the government. NAFTA Ch. 11 is an example of a very similar system working well to address legitimate disputes. See cases where a corporation's claim was rejected, and they were forced to pay attorney's fees to the country they sued in the tribunal. Not exactly the outcome predicted here.

ISDS does not "trump national sovereignty" and in no conceivable way can a business "strong-arm" sovereign entities. This is complete nonsense.

The "tribunals" are arbitral tribunals and as such are manned by lawyers chosen and agreed on by BOTH sides - just like any other arbitral tribunal. They can apportion compensation for damages caused by breaches of international law. No international court can "force" a state to change a law (this is constitution 101), and it is not the case here.

Philip Morris is seeking compensation for the purported expropriation of intellectual property rights (their brand). Almost no-one believes they have any chance of winning. In fact, it seems that they are doing it solely to press for time in other jurisdictions: i.e. some countries are waiting for the result of the arbitration before introducing similar laws. They probably figured out that potential lost profits in foreign markets in that time frame are likely higher than legal fees.

Not one of your points is accurate (and you reference John Oliver and a comic).

What if an ISDS tribunal continually levied fines against a nation-state member for damages caused by a breach of international law?

Would that nation-state eventually feel pressured to change its laws to avoid crippling fines?

If the nature of the law, is such as to continually breach international law, and companies are consistently and successfully challenging that law, a state may feel pressured to either: 1. Withdraw from the free trade agreement, or 2. change its laws to conform to the terms of the free trade agreement.

This is not a bug but a feature: the ISDS is designed to ensure that states abide by international law and respect the terms of the free trade agreement they consented to. This is fully in line with the concept of pacta sunt servanda and the relationship between international and municipal law.

Finally, if you are the United States, you can also simply ignore the arbitral tribunal and continue to be in breach of the agreement and international law, because, well, what are they gonna do?

Wow, I'm really sorry to have to do this after your wrote such a detailed comic, but it is clear you don't have even the most basic understanding of what money is. You commit the most elementary fallacy out there, and worse, it is central to your whole argument. Worse still, you continually harp on "basic errors" and the difference between good and bad economists, while being a quintessential example of a bad economist who makes basic errors.

The most egregious, obvious, and deep-cutting error is that you equate money with wealth, which is made obvious when you contrast "investing in the economy" with "just sitting on the money" as if these were two different things. Money is not goods and services; money is a claim on goods and services. Therefore, hoarding or "just sitting on" money is not hoarding goods and services, but closer to the opposite. It is deliberately not commanding the goods and services one's money could command, freeing up those goods and services to be used by others. Hoarding money is a kind of anti-hoarding of resources; it's exactly equivalent to investing in an index fund over the entire economy.

For his reason, your whole argument is confused. Please consider the nature of money more carefully and stop misleading people.

Note: I'm opposed to the TPP, but most certainly not because it promotes "free trade."

Informative comic, but it could have done without the gun control strawman.

That popped out to me too. Seems like a total non-sequitur in an otherwise very informative article.

> It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working.

The EFF often has this problem, IMHO, and I suspect it limits their ability to build support and awareness. I support the EFF; I'm an interested, knowledgable, well-educated person who is accustomed to reading sophisticated prose -- i.e., I'm their ideal audience -- and I gave up after a paragraph. I think they lose a large part of their potential audience.

Matthew Butternick provides the following excellent advice to writers (which applies to much more than typography): http://typographyforlawyers.com/who-is-typography-for.html

If Anticorporatistan enacts a law that Big Evil Co., Inc. thinks might somehow limit its ability to make a profit, Big Evil Co., Inc. can sue Anticorporatistan for the profits it thinks, at its sole discretion, it would lose because of the new law.

With Anticorporatistan being the United States, and laws they don't like being the existing Fair Use protections. It's not a vague future hypothetical.

They don't like fair use, but it is not clear fair use protections could be legislated away without a court overturning any such clause with a first amendment argument. If that were to happen, foreign corporations could sue the US for damages, and win, but no other legal remedy would be available -- they could not stop the fair use from continuing. Maybe they could sue again the following year.

Krugman has a less dense explanation of some of these issues here:

http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/...

> But do we really think that inadequate incentive to create new drugs or new movies is a major problem right now?

I found this line in Krugman's text surprising, because there actually are a lot of questions about incentives in both drug and entertainment markets.

In drugs, pharma companies are focusing on high-margin "lifestyle enhancing" drug categories like erectile dysfunction, blood pressure management, and various mood and mental management. Basically, the drugs that rich healthy people will pay a lot of money for. Pharma companies are not focusing on low-margin but highly useful categories like antibiotics, pests, and vaccines. Basically, the problems that affect poor people in 2nd and 3rd world countries.

In entertainment, companies are focusing on iterating well-known and well-used franchises for which they know they can drive immediate demand with marketing. Highly original hits like Inception are not nearly as common as they were in say, the 1970s or 1980s. Instead we get Furious 7 and a two remakes of 21 Jump Street.

Don't get me wrong, the drug and entertainment industries are making a lot of money. But the issue is how they are making it. Drug companies stick to first world problems because first world countries protect their IP, so that is where they'll get a return. Entertainment companies stick to movies that will pack the theater on opening weekend because the movie will be heavily pirated within a few days after that.

I'm not crying for the poor drug or movie executives. I'm saying that the rest of us have to live with the consequences of how we incentivize companies to do business.

edit: word fixes

Hang on just a minute, everybody.

I guess I wasn't clear myself (while accusing the EFF of being unclear).

My point is, EFF needs to make this more clear.

I'm not asking for more info about it. I think the EFF should help everybody (they aren't all going to dive into this thread, but lots of people do visit eff.org) understand this, by figuring out a way to present it more concisely and clearly, even though it is admittedly a complex issue.

That being said, I am learning a lot from the comments, and maybe a few others are too; that's great.

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