ISDS have been a part of trade agreements for 30 years. Up until now however the Court that ruled on the dispute was a properly constituted Court of the Country involved. So the decisions followed the law of that Country, and the rule of law generally. Not anymore. Under the TPP the dispute will be ruled on by a Court comprised of staff from the Multinationals. So given their new power to resolve cases in their own favour, let us have a look at all the times (much weaker) ISDS laws were used against Sovereign Governments and against the best interests of their citizens.
7 November 2018: Investment law expert slams investor rights to sue government (ISDS). George Kahale III, an internationally recognised expert on ISDS, in the keynote speech to an investment arbitration conference in Prague, has described the system as a ‘weapon of legal destruction’. He says that ISDS is increasingly used to claim not only millions but billions of dollars of compensation for legitimate government public interest regulation using dubious methods to calculate future claimed losses. He notes that the US and Canada have agreed to end ISDS in the United States-Canada-Mexico agreement which will replace NAFTA and urges other governments to withdraw from or cancel existing agreements containing ISDS. Read the full speech h/t http://aftinet.org.au
NEW Coal Companies use ISDS to Sue Canada for phasing out coal power
Now here at Liberty Campaign we like coal power, but that is not the point. The point is the Government of Canada is being told what to do by corporations and that is something we no not like.
22 November 2018: Investment Arbitration Reporter has reported this week that US company Westmoreland Coal has filed a claim against the Canadian Government under the North American Free Trade Agreement (NAFTA), because they anticipate profit loss when the province of Alberta phases out coal generated electricity.
Alberta’s left-leaning provincial government elected in 2015 aims to phase out coal-fired energy by 2030. This is part of stronger strategy to tackle climate than the previous Conservative government, which contemplated a 50 year lifespan of coal-fired plants when the company bought the coal mines in 2013-14.
Westmoreland claims it has been denied National Treatment and the Minimum Standard of Treatment under NAFTA rules. They claim they will lose $441 million CAD or more due to early mine closures and rehabilitation of land required.
Find out more on ISDS cases against environmental laws from this radio interview by AFTINET convenor Pat Ranald and others, in which an ISDS lawyer confirms that such cases could happen in Australia.
WARNING CASE Russia ordered to pay $50bn to corrupt oligarchs for punishing their rape of Russia
On July 28, 2014, an international arbitration tribunal under the auspices of the Permanent Court of Arbitration (The Hague) announced that Russia must pay USD$50.02 billion in damages to former shareholders of the now defunct oil giant, Yukos Oil Company. The three-member tribunal unanimously declared that Russia breached its obligations under Article 13(1) of the Energy Charter Treaty when it “took steps equivalent to expropriation of the claimants’ investment in Yukos.”
To explain: When Putin came to power one of the first things he dealt with was the way in which corrupt Oligarchs had exploited the end of communism to steal everything worth stealing, and then pay no taxes on all this wealth. Putin cleaned up the oligarchs and many fled overseas. From there they used ISDS provisions to sue Putin for acting in Russia's best interests, and for making them pay their fair share of tax. They won. This reinforces how putting so much power in the hands of a few people who answer to no-one has resulted in corruption by people with great wealth and power.
This Award provides important policy lessons to other countries which have already signed or currently negotiating bilateral investment treaties (that allow investor-to-state arbitration- ISA) without any consideration of consequences and potential costs. At the global level, the growing proliferation of investor-state disputes highlights the lack of balance between public rights and private interests in the existing international investment treaty regime. There are currently more than 3000 BITs in force. The private investors could seek compensation worth billions of dollars from states for breaches of treaty obligations. But, at the same time, the states have the right
to enact and enforce regulations related to taxation, financial stability, public health and environment, as part of exercising their sovereign powers. The existing investment protection agreements have failed to address the balance of rights and responsibilities of foreign investors as it offers numerous legal rights for investors without requiring corresponding responsibilities for them.
Mining Companies Sue El Salvador for leaving minerals in the ground
Update: El Salvador eventually won.
ICSID TRIBUNAL FINDS IN FAVOUR OF GOVERNMENT OF EL SALVADOR IN ARBITRATION PROCESS (MELBOURNE) OceanaGold Corporation (TSX/ASX/NZX: OGC) (the “Company”) has been advised that the arbitration tribunal constituted by the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) has found in favour of the Government of El Salvador (the “Government”) in its dispute with an OceanaGold indirect subsidiary company, Pac Rim Cayman LLC. ICSID granted an award of US$8 million to the Government of El Salvador to cover its legal fees and costs. OceanaGold inherited the arbitration process when it acquired Pacific Rim Mining Corp. in November 2013 and the Company has stated from the beginning that its goal was to reach an amicable resolution of this matter which would benefit all parties. Whilst disappointed, OceanaGold will review the ICSID’s ruling in detail before evaluating the next steps related to its El Salvador business unit. The Company believes that a modern resource industry that operates in a safe and sustainable manner and within internationally recognised best practices has the potential to unlock a sustainable and multi-decade development opportunity for the Republic of El Salvador. However, the Company recognises that the Government will need to take positive and definitive steps towards establishing a stable business environment if it wishes to attract foreign investment to establish this opportunity. As a world class producer for over two decades, Canadian-Australian mining company OceanaGold has been a valued member of the communities where it operates, including environmentally sensitive areas such as New Zealand, the Philippines, and the United States. Over this time the Company has formed a strong track record of establishing itself as a partner and employer of choice that works in a spirit of cooperation and respect with its stakeholders in a sustainable and ethical wayGovernments do not even have to DO something to get sued. They can NOT DO something and still get sued. El Salvador decided to leave minerals in the ground and not allow a Canadian Company mine them. So they sued under ISDS. This is a link to a paper from the University of Pennsylvania and is the first article here because it is invaluable reading when considering the danger of ISDS.
"This paper focuses on the main venue for investor-state dispute settlement: the World Bank Group’s International Centre for Settlement of Investment Disputes (ICSID). The paper’s analysis establishes significant ICSID bias in favor of corporations and commercial interests. At its core, the paper is a case study of what transpired after the government of El Salvador did not approve a mining concession for a Canadian mining company and subsequently implemented an environmentally-inspired moratorium on metals mining. The case study was chosen in part because it is unusual for a poorer-country government to prioritize the environmental costs of mining over potentially significant foreign-exchange earnings from gold deposits.
The paper presents the Salvadoran case study by moving from the local level to the national level in El Salvador, and then proceeds to the global level to follow the investor-state suit filed by Pac Rim Cayman against the Salvadoran government at the World Bank Group’s International Centre for Settlement of Investment Disputes. The paper bookends the Salvadoran case-study with a broader look at ICSID. The author begins with a brief history of ICSID, from its controversial birth fifty years ago to its controversial present.
Following the Salvadoran case, the author returns to reflections on ICSID and investor-state dispute settlement (ISDS) in current and proposed trade and investment agreements."
TransCanada Sues the US for Rejecting Keystone XL
On Wednesday 6-1-15, TransCanada Corporation filed a lawsuit in US federal court alleging President Obama's rejection of the Keystone XL pipeline exceeded his power under the US Constitution. TransCanada also filed legal action under the North American Free Trade Agreement, or NAFTA, claiming the pipeline permit denial was "arbitrary and unjustified." It's seeking $15 billion as part of its NAFTA claim. TransCanada's lawsuit comes just days before President Obama's final State of the Union address, where he's anticipated to tout his controversial Trans-Pacific Partnership, or TPP, deal. The secretive trade pact between the United States and 11 Pacific Rim nations could govern up to 40 percent of the world's economy. After TransCanada announced its lawsuit on Wednesday, the group Friends of the Earth released a statement saying, "This is why Friends of the Earth opposes the Trans-Pacific Partnership and other trade agreements, which allow companies and investors to challenge sovereign government decisions to protect public health and the environment."
Environmentalists should actually be supporting Keystone (as we do), it replaces pipelines that are old and leaking and damaging the environment. The downside is that it will make it easier for industry to use oil instead of the renewables they are flogging to solve the fake global warming narrative. So the point here is this. Keystone should be decided in the court of public opinion after a debate about natural gas -vs- renewables, or perhaps about the wider issue of global warming. Instead it is going to be decided by corporate courts.
If they win, and they will once the TPP is in, what scheme will MegaCorp propose that the Government is powerless to block. This is what we mean when we talk about losing sovereignty. Reference
WTO Forces Congress to Repeal Country of Origin Labelling
UPDATE 10th March, 2016: President Obama has just signed into law the repeal of COOL legislation. It's done. Now Americans have no idea where their food comes from.
US congressional leaders have moved to repeal mandatory country-of-origin meat labeling rules that the WTO said violated trade agreements and permitted Canada and Mexico to levy $1 billion in retaliatory tariffs. US manufacturers and trade groups hailed the provision in the "omnibus" $1.15 trillion spending bill agreed late Tuesday that is expected to pass Congress by the end of the week. On December 7 Canada and Mexico, the second- and third-largest US trade partners, won World Trade Organization approval to impose up to $1 billion a year in trade sanctions against the United States over its Country of Origin Labeling (COOL) law requirement on beef and pork.
The policy requires labeling on meat that states where livestock animals are born, where they are raised, and where they are slaughtered.
The labeling law, popular with US consumers for giving greater transparency to their food purchase, was enshrined in the 2002 Farm Bill. Congress strengthened it in 2013, even as Canada and Mexico were challenging the policy at the WTO.
But Ottawa and Mexico City, as well as the US meat industry, have campaigned against COOL as an unfair and costly burden on producers. The spending bill, according to Senator Barbara Mikulski, vice chairwoman of the Senate Appropriations Committee, will repeal the parts of the COOL law that were ruled discriminatory by the WTO. Manufacturers, many of whom were concerned about the impact of the punitive tariffs, welcomed the move Wednesday.
"Repeal of these COOL provisions is the only solution remaining that will protect US manufacturing jobs, and we are relieved that this spending deal includes this essential provision," Linda Dempsey of the National Association of Manufacturers said in a statement.
"Manufacturers need to see congressional action quickly to prevent Canadian and Mexican retaliation from being imposed later this month."
The Wine Institute urged Congress to "immediately" approve the bill.
"At this late date, passage of the omnibus is the only way to guarantee US exports do not suffer devastating losses" from retaliation by Canada and Mexico, it said.
But opponents condemned the repeal as a rollback in consumer protection.
"Unfortunately, Congress bowed to pressure from the meatpackers... in order to obey the dictates of a World Trade Organization ruling," said Food & Water Watch, a Washington-based nongovernmental organization.
"Congress willingly kowtowed to international trade tribunals to gut COOL and even tossed out the labels for ground meats that the WTO ruled were totally trade-legal -- a holiday gift to the meatpacking industry from Congress."
Phillip Morris - Plain Cigarette Packaging ** UPDATED
Original story below. The Minister is saying that we won this case. Technically that is correct. Actually what happened is the Court ruled that they did not have jurisdiction in this matter, as Phillip Morris was not legally represented in their jurisdiction area (Hong Kong) when the plain packaging laws were enacted. There was no finding as to the legitimacy of the case, either way. The TPP will solve this for them - under the TPP Corporations do not exist within countries, they exist as their own legal entity. This means Phillip Morris can sue under the TPP, so we have not won this case, we have just delayed the inevitable.
A couple of weeks ago, they met in sub-freezing Toronto. The time before that, in steamy Singapore.
The battle between Australia’s trade lawyers and those of the world’s biggest tobacco company, Philip Morris, involves a lot of air miles and clothing changes, untold millions of expense, and a lot of secrecy. No one is saying exactly what, if anything, was achieved in Toronto.
Above all, the process involves lots and lots of delays.
It’s now been well over two years since the tobacco company began action against this country, under the provisions of a 1993 free trade agreement between Australia and Hong Kong, in an attempt to thwart Australia’s cigarette plain-packaging laws. Chances are, the dispute will go for a long time yet.
That suits Philip Morris just fine. Even though it is almost certainly going to lose the case, the company will have a victory of sorts: a victory of time. The longer these trade disputes take, the less likely other countries will take tough action to discourage smoking.
There is no clearer indication of the shortcomings of international trade agreements than the way those deals have been abused by big tobacco.
The war with Australia began domestically, where the matter went to the High Court, and where, predictably, British American Tobacco, Philip Morris and the other tobacco companies lost. Then it became international. The industry has not only dragged Australia into arbitration, but also into conflict with a series of other countries – Ukraine, Honduras, Indonesia, the Dominican Republic and Cuba – who have complained to the World Trade Organisation about Australia’s tobacco laws.
Some, if not all, of these countries are receiving direct assistance from tobacco companies to defray the cost of their actions. British American Tobacco admitted as much in 2010, in relation to the first two complainants, Ukraine and Honduras.
And so here, in its tangle of trade agreements, Australia fights on. It now maintains a Tobacco Litigation Task Force in the attorney-general’s department, a similar Plain Packaging Task Force in the trade department, and another in the health department.
The key weapon in the tobacco industry’s arsenal is the Investor-State Dispute Settlement (ISDS) provisions contained in most trade agreements, which allow multinational corporations to take legal action against governments claiming their interests have been damaged by government decisions. It is under the ISDS provisions of the Hong Kong–Australia free trade agreement that Philip Morris brought its complaint against Australia.
ISDS is a good idea gone bad. The intent was that these provisions would protect companies from having their investments unfairly expropriated by governments, particularly in countries with weak or politicised legal systems. But they have become a means by which big corporations, and often the home countries of those big corporations (notably the United States) seek to subvert the national sovereignty of other countries. Tobacco companies aren’t the only ones doing it – mining, pharmaceutical and chemical companies also are frequent litigants – but they present the most egregious examples of abuse.
Even where there are legitimate disputes to resolve, resolution is increasingly slow, and outcomes inconsistent. As a result, there is now something of a global re-think going on about the way ISDS works. Or rather, doesn’t work.
Just a few weeks ago, the European Union Trade Commissioner Karel De Gucht announced a three-month halt to negotiations over ISDS provisions in a proposed EU–US trade agreement, in response to growing opposition from the public and some member states.
He also acknowledged deep dissatisfaction within the commission about the secrecy and fairness of current ISDS adjudication, and the vulnerability of the system to corporate abuse.
Nowhere has that rethink of ISDS been more evident than in Australia. In 2005, the Howard government made Australia the first country in the world to negotiate a free trade agreement with the US that did not include ISDS provisions. In 2011, the former Labor government, on advice from the Productivity Commission, went further and decided not to have them as part of any future trade agreement – making Australia the first developed nation to walk away from the system.
The Abbott government has overturned that decision, and has said it will consider ISDS provisions on a “case by-case basis” as it sets about its ambitious agenda for finalising a raft of free trade deals. It’s a safe bet most will include ISDS; the first deal concluded under the new government, with South Korea, made public on February 17, does. Indeed, most of the work on the South Korea deal was done under the former government; ISDS was the major obstacle to the FTA’s completion.
The Coalition’s election policy promised to “fast-track … trade agreements with China, Japan, India, the Gulf Cooperation Council and Indonesia”, and to “explore the feasibility” of free trade agreements with five other countries as well as the European Union.
And, biggest of all, there’s the Trans-Pacific Partnership Agreement (TPP), now being negotiated between the US, Australia, and 10 other Pacific rim countries, with a combined population of nearly 800 million people and a combined GDP of almost US$28 trillion, about 40 per cent of global GDP.
Now, few would argue that free trade is a bad thing. Equally, few experts would disagree that the dispute settlement process is in need of major reform.
Countries have faced claims of up to $US114 billion, and awards as high as $1.77 billion. But most commonly the cases just drag on, and on. The number of “pending” cases far outstrips the number settled.
The United Nations Conference on Trade and Development noted numerous deficiencies in the arbitration system. Most worrying of all, perhaps, they lamented the burgeoning number of cases in which big corporations use ISDS “to challenge measures adopted by States in the public interest”.
It isn’t difficult to find examples. Let’s go first to Uruguay. In 2005 it elected as president an oncologist, Tabaré Vázquez, who introduced a series of measures that cut smoking rates by 25 per cent over five years. Then in March 2010, Uruguay became the first country in the world to bring in laws insisting that health warnings cover 80 per cent of cigarette packs. It also prohibited companies from cigarettes labeled as “light” or “mild”.
Even before the laws had come into force, Philip Morris brought an ISDS action through the International Centre for the Settlement of Investment Disputes (ICSID), which operates through the World Bank.
It was the first such case, and it is still dragging on, apparently endlessly. It took more than a year for a three-person panel of arbitrators to be convened, and three years, until June 2013, for the arbitrators merely to determine that they had jurisdiction to hear the case.
Philip Morris claimed Uruguay’s new laws infringed its trademarks and breached the provisions of a 1991 bilateral trade agreement between Uruguay and Switzerland. It sought not only to have the anti-tobacco measures quashed, but to get compensation for lost sales, plus interest, costs and penalties.
“Philip Morris’s lawyers, when they filed that suit, told officials in the Uruguayan government that this case could bankrupt Uruguay and that Philip Morris had assets that exceeded Uruguay’s GDP,” says Matthew Myers, president of the Campaign for Tobacco-Free Kids, an organisation that is helping fund Uruguay’s legal costs.
At least one claim made by Philip Morris is true: the company is bigger than Uruguay. The market capitalisation of Philip Morris is currently about US$135 billion. The most recent annual report of Philip Morris International cited net revenue of $67.4 billion. Uruguay’s GDP is just $50 billion, of which government accounts for less than one-third.
But it’s not the cost of a potential settlement that most often deters countries from taking on tobacco companies. Most are scared off simply by the threat of expensive and time-consuming litigation.
Says Myers: “We do work in Africa, and in just the last two years we’ve seen cigarette companies threaten Namibia, Togo, Uganda, with lawsuits they said would cost millions of dollars to defend, in an effort – sometimes a successful effort – to intimidate a country into not even passing tobacco laws.”
Australia, with an economy 15 times bigger than Uruguay’s, had the means to meet Big Tobacco’s legal challenge. And the will. Nicola Roxon, who, as health minister and then attorney-general, did most to drive the initiative. She had lost her father to smoking-related illness. Tanya Plibersek, who succeeded Roxon as health minister, oversaw most of the implementation of the new measures and refused to even meet with tobacco industry lobbyists.
But Big Tobacco exerts influence in many ways. Craig Emerson, the trade minister of the time, recalls fierce lobbying by members of US congressional trade delegation.
“As an aside,” says Emerson, “my mother died of emphysema after being a chronic smoker.”
Bottom line, the Labor cabinet determined, in the words of one minister, “to spend whatever it took” to defend plain packaging. To its credit, the new government has kept that commitment.
As to the exact expenditure, the government won’t say, out of concern this would play to Big Tobacco’s global strategy of deterrence through cost.
In its most recent annual report, Philip Morris acknowledges Australia’s plain-packaging legislation as the most significant legal “setback” of the previous year.
It also boasts to its shareholders that its various international trade actions against Australia are having their desired effect, by deterring other countries – New Zealand being one example – from implementing such “extreme” regulatory measures, at least until the various challenges to the Australian legislation are resolved.
The PMI report notes rather smugly: “WTO dispute settlement cases can take several years to complete. It is not possible to predict the outcome of these cases.”
So, there is a double bottom line here. First, it’s vitally important that Australia fight Big Tobacco to the end, not only for it’s own citizens’ sake, but also for the sake of those in less affluent countries, who are now the industry’s prime targets.
Second, we’ve got to be a whole lot more careful in negotiating future trade deals and ISDS provisions.
It’s one thing to be “open for business”, but quite another to throw open your country to lawsuits.
Government Insurance Scheme sued in Canada
When an all-party committee of the provincial government of New Brunswick, Canada recommended that the province develop its own public auto insurance program, the private insurance industry used the threat of a NAFTA investor-state case to successfully lobby against the program. In response to public outcry over skyrocketing auto insurance premiums, the New Brunswick committee recommended a public plan that would achieve average premium reductions of approximately 20 percent. The Insurance Bureau of Canada, representing Canada’s largest insurers, immediately warned that the proposal could trigger NAFTA investor-state cases from foreign insurance providers in Canada as a NAFTA-prohibited “expropriation” of their market share. The proposal was soon scuttled, due in part, according to observers, to “aggressive threats of treaty litigation.”
Germany sued for phasing out Nuclear Power
In May 2012 the Swedish energy company Vattenfall filed a request for arbitration against Germany at the International Centre for the Settlement of Investment Disputes (ICSID), housed at the World Bank in Washington, D.C., because of Germany’s decision to phase out nuclear energy. Vattenfall relies on its rights under the Energy Charter Treaty, an international trade and investment agreement in the energy sector. This treaty, like many international investment agreements, grants foreign investors the right to bypass the domestic courts of the host country and to directly file a complaint to an ad hoc international tribunal to challenge proposed government regulations. Vattenfall is expected to claim well over €700 million in compensation in response to the closure of the nuclear power plants Krümmel and Brunsbüttel.
Renko - 10th most polluted smelter in the world - ISDS used to defend cleanup order by Government of Chile
Renco Group Inc., a company owned by one of the richest men in America, invested in a metal smelter in La Oroya, Peru. The site has been designated as in the top 10 most polluted in the world. The firm has been sued in U.S. court on behalf of severely lead-poisoned children in La Oroya. Sulfur dioxide concentrations at La Oroya greatly exceed international standards, with sulfur dioxide levels doubled in the years after Renco’s acquisition of the complex. Renco’s Peruvian subsidiary promised to install sulfur plants by 2007 as part of an environmental remediation program. Although it was out of compliance with its contractual obligations, the company sought (and Peru granted) two extraordinary extensions to complete the project.
In December 2010, Renco sent Peru a Notice of Intent that it was launching a U.S.-Peru FTA investor-state attack, alleging that Peru’s failure to grant a third extension of the remediation obligations constituted a violation of the firm’s FTA foreign investor rights. The company is demanding $800 million in compensation from Peruvian taxpayers. The Renco case illustrates two deeply worrying implications of investor-state arbitration. Even the mere threat of a case can put pressure on governments to weaken environment and health policies. Recent developments suggest that the threat of this case was highly effective. While full environmental compliance has yet to be seen, the government has allowed the smelter to restart zinc and lead operations.
That would be bad enough, but Renco is also attempting to evade justice in U.S. domestic courts through the investor-state mechanism. Renco has now successfully argued that the U.S. lawsuit filed on behalf of La Oroya’s children must be removed from a U.S. state court, where it had a decent chance of success. Renco tried to derail the case this way three times before without success. But after filing the investorstate case, the firm claimed that the matter now involved an international treaty and thus was outside the state court’s remit. In January 2011, the same federal judge who rejected the past attempts determined that the existence of the investor-state case made this a federal issue and allowed Renco to terminate the state court case.
Chevron used ISDS to block cleanup of toxic contamination in Equador
An unprecedented ruling in the 18-year struggle of Ecuadorean indigenous people to force Chevron to clean up horrific toxic contamination in a swath of the Amazon the size of Rhode Island provides a chilling glimpse of how corporations can use international investor tribunals in “trade” agreements to evade justice. After 18 years of losing in U.S. and Ecuadorean courts and endless delay tactics, Chevron was ordered by an Ecuadorean court to pay $18 billion for cleanup and punitive damages. An appellate court affirmed the decision in January 2012. Chevron turned to an ad hoc “investor-state” tribunal under the U.S.- Ecuador BIT as the last chance to evade justice. In February, that tribunal ordered Ecuador’s government to interfere with the country’s independent court system to halt enforcement of the ruling, even though it had not even determined that it has jurisdiction over the case. The case stems from damage caused to 30,000 indigenous people in the Amazon by Texaco, which operated in Ecuador from 1964 to 1992 and was purchased by Chevron in 2001. During this time, the company admits that it dumped more than 16 billion
gallons of toxic water into streams and rivers used by local inhabitants for drinking water. The trial included dozens of technical reports containing evidence of open pits of toxic waste and severe health problems among residents. An Ecuadorean court rejected the tribunal’s order. However, the ad hoc panel may still prevent the clean-up from starting, as its ruling may be recognized by other countries whose cooperation is needed to collect the $18 billion from Chevron, which has no assets in Ecuador now.
Mexico Municipality ordered to approve application for a toxic waste dump
Mexico was ordered to pay the U.S. Metalclad Corporation $15.6 million after a Mexican municipality refused to grant the firm a construction permit for a toxic waste facility unless it cleaned up existing toxic waste problems. The facility had been closed when it was owned by a Mexican firm, from which Metalclad acquired the facility in a transaction that specifically noted the clean up condition for obtaining a permit. The NAFTA tribunal ruled that Mexico violated NAFTA’s “minimum standard of treatment” guaranteed foreign investors, because the firm was not granted a “clear and predictable” regulatory environment. It also ruled that a provincial ecological decree amounted to an indirect expropriation, or what is sometimes called a regulatory taking.
Eli Lilly -vs- Canada on Drug Patents
In November 2012, Eli Lilly and Company initiated formal proceedings under the North American Free Trade Agreement (NAFTA) to attack Canada's standards for granting drug patents, claiming that the invalidation of a patent violated three special investor privileges granted by the agreement.1 The investor privileges provisions included in NAFTA and other U.S. "free trade" agreements (FTAs) empower private firms to directly challenge government policies before foreign tribunals comprised of three private-sector attorneys, to claim that the policies undermine investors' "expected future profits," and to demand taxpayer compensation. Eli Lilly's NAFTA investor-state challenge marks the first attempt by a patent-holding pharmaceutical corporation to use the extraordinary investor privileges provided by U.S. "trade" agreements as a tool to push for greater monopoly patent protections, which increase the cost of medicines for consumers and governments. Eli Lilly is demanding $100 million in compensation.2
Eli Lilly launched its NAFTA attack after Canadian courts invalidated Eli Lilly’s monopoly patent rights for an attention deficit hyperactivity disorder (ADHD) drug called Strattera. The Canadian courts did so after determining that Eli Lilly had presented insufficient evidence (a single study involving 22 patients) when filing for the patent to show that Strattera would deliver the long-term benefits promised by the company.3 While the $100 million NAFTA investor-state compensation demand relates to revocation of the Strattera patent, Eli Lilly makes clear in its formal "Notice of Intent" to Canada that it is not only challenging the invalidation of its particular patent, but Canada's entire legal doctrine for determining an invention's "utility" and, thus, a patent's validity.4 While pushing for an entirely different patent standard, Eli Lilly, the fifth-largest U.S. pharmaceutical corporation,5 is demanding $100 million from Canadian taxpayers as compensation for Canada's enforcement of its existing patent standards.
See full article with citations and legal analysis on the excellent Citizen.org website. http://www.citizen.org/eli-lilly-investor-state-factsheet
Mexico, Canada use globalist trade organization to eliminate U.S. food safety regulations
(NaturalNews) The United States' two neighboring countries are preparing to level trade sanctions under rules governing a globalist trade agreement following victory in a recent meat labeling case.
The pending actions by the Canadian and Mexican governments are creating pressure on Congress to change existing U.S. laws that have been credited with providing consumers with more complete information about the food they feed their families.
As reported by Reuters, a ruling by the World Trade Organization sided with Canada and Mexico over laws "requiring retailers to label meat with the country where the animal was born, raised and slaughtered, saying they discriminated against imported livestock."
Republicans in Congress, who have a majority in both chambers, have indicated that they might introduce legislation to repeal the labeling rules, but consumer groups and a number of Democrats say the labeling requirement is a benefit for consumers.
Trade war threatened over globalist pact
Beef and pork producers in the two disputing countries, however, claim that the rules add unnecessary expenses and have even led to reductions in livestock exports, which have purportedly driven some Canadian and Mexican farmers out of business and is said to cost $1 billion a year.
"Our governments will be seeking authorization from the WTO to take retaliatory measures against U.S. exports," the Mexican and Canadian ministers for trade and agriculture said in a joint statement, Reuters reported, adding:
Canada has published a hit list of potential U.S. targets, including wine, chocolate, ketchup and cereal. Mexico has not done so but estimates damages similar to Canada's.
Rep. Michael Conaway, R-Texas, chairman of the House Agriculture Committee, wants Congress to move swiftly to resolve the issue.
"It is more important now than ever to act quickly to avoid a protracted trade war with our two largest trade partners," he said.
However, the committee's ranking member, Rep. Collin Peterson, D-Minnesota, has said he will oppose any effort to repeal the labeling requirements, adding that there were other steps to pursue at the WTO before changing U.S. labeling laws became necessary.
Some analysts, Reuters reported, said that changing U.S. laws could increase livestock imports. Not changing the laws could also negatively impact U.S. producers due to retaliatory measures by Canada and Mexico.
The National Cattlemen's Beef Association, and some American producers and business groups, want to see the laws changed.
"Unless Congress acts now, Canada and Mexico will put tariffs on dozens of U.S. products," National Pork Producers Council President Ron Prestage told Reuters. "That's a death sentence for U.S. jobs and exports."
Actually, 8 in 10 Americans want more labeling
But the overall idea of labeling more foods -- especially foods containing genetically modified organisms -- is becoming more popular in the U.S.
As reported by The Associated Press in January, two-thirds of Americans surveyed supported "labeling of genetically modified ingredients on food packages, even if they may not read them."
The AP also said that four in 10 people believed that the presence of GMOs in their food was a matter of importance. The AP further reported:
According to the December AP-GfK poll, 66 percent of Americans favor requiring food manufacturers to put labels on products that contain genetically modified ingredients.
Only 7 percent are opposed to the labeling, and 24 percent are neutral.
A separate report from ABC News noted that support for GMO labeling was nearly unanimous among American consumers, especially as concern over GMO foods rises:
Nearly everyone, moreover — 93 percent — says the federal government should require labels on food saying whether it's been genetically modified, or "bio-engineered" (this poll used both phrases). Such near-unanimity in public opinion is rare.
As Natural News has reported, however, Big Food in America is vehemently opposed to GMO labeling. In 2014, giant food corporations tripled their propaganda spending in an effort to oppose GMO labeling initiatives in U.S. states.
The anti-GMO-labeling effort is being echoed by an increasing number of "interested" parties, but it has been led primarily by the Grocery Manufacturers Association (GMA), which has spread millions of dollars around to other "interested" parties (think lawmakers) to kill labeling bills.
Seeds must be purchased - swapping outlawed in California
At the request of Big Ag the practice of farmers swapping seeds has been made illegal in California. Seeds must now be purchased from a seed vendor, who just happen to all Big Ag of course.
One of the biggest criticisms of Monsanto has been not just its dangerously untested genetically modified crops and chemicals, but also their desire to control just about everything related to food “from seed-to-table.”
The company’s practices are just one example of what has become a nationwide crackdown on food sovereignty and the rights and freedoms of family farmers and even gardeners, and nowhere is that presence more clear than in California, which passed a new seed-saving law that has many in the Golden State incensed.
As noted in this article from the Lake County Record-Bee, the simple practice of exchanging green bean seeds for some pinto bean seeds with another person who lives more than three miles away is now considered to be a crime.
Individual farmers must adhere to the same strict quality control and packaging standards just to make a simple trade of the seeds that have been freely given out by Mother Nature since the dawn of mankind.
“They are limiting diversity. Diversity is what runs the planet,” resident Ron Kiczenski said to the newspaper. “If we can’t trade seeds like our ancestors did, how are we going to keep that diversity and tradition alive?”
This particular line in the law, passed last summer in California, is the one most want taken out: “…sell(ing) includes offer for sale, expose for sale, possess for sale, barter or trade.”
Protesters took aim at the law, AB2470, on Seed Freedom Day earlier this month.
The law is just one example of a cavalcade of similar ones that have taken root across the United States and even reaching into other nations where large mutli-national seed corporations are present.
GMO Food Labelling Banned - Monsanto win
On Tuesday July 14th 2015, US food companies and Monsanto sealed a critical victory as the House Agricultural Committee approved a measure that bans the mandatory labeling of genetically modified foods and prevents cities and counties from banning GMO crops within their jurisdictions. Several counties in California and Oregon already have bans in place, and this threatens those restrictions. The measure also paves the way toward preventing food companies from even telling you that their food is GMO free.
While dozens of countries around the world ban GE crops and have ousted Monsanto after citizens protested, petitioned, and took to the streets, the United States seems to want to do everything it can to keep its citizens in the dark about what they are actually eating. Americans clearly want labeling that presents them with accurate and consistent information about what is in their food. As it stands right now, each state has a different method of GMO labeling and some have none at all. Farmers and food manufacturers cannot keep up with 50 different standards. Maine has already passed a law requiring labeling GMO products, and those labels would be prohibited if this bill is upheld in the Senate.
Opponents of GMO labeling state that it would raise food prices and trick consumers into thinking that the GMO-free foods are safer, more nutritious, or otherwise superior to the foods including GMO ingredients. Farmers say that it will be impossible for them to feed the US population by 2050 if they are not permitted to cultivate GMO crops. They say that GMO crops are more resistant to pests and disease, require less land, and are hardier than their GMO-free alternatives. Farmers, already struggling to compete with factory farms and corporations, are facing an ever increasing number of laws and regulations governing how they acquire their seeds, treat their crops for disease and pests, and harvest and store our food. When society shifted from an agrarian economy to an industrial economy and outsourced food production from the family farm to the farmer or corporation, the quality of our food changed forever. It became someone's job to produce the largest tomato. It became someone's livelihood to reduce their costs any way they could. It became much more important to control pests and disease because instead of losing 5 bunches of grapes a week, a farmer could lose thousands of bunches of grapes a week. The farm that produces the best yield survives, the farm that can't will be eliminated. Is this when consumers lost the right to know what was in their food? Was it when society elected to stop farming for one family at a time and farm for the masses? Or was it when one giant company controlled practically all of the seed stock in the world? Or was it when the government let themselves be bought by giant companies more interested in profits than in consumer choice and safety? Read more at: http://tr.im/8KJGj
Bayer, BASF and Syngenta suing European Commission to overturn a ban on their pesticides that are killing millions of bees
Bayer, BASF and Syngenta are suing the European Commission to overturn a ban on the pesticides that are killing millions of bees around the world.
A huge public push won this landmark ban -- and we can't sit back and let Big Pesticide overturn it while the bees vanish.
Last summer, 37 million bees were discovered dead on a single Canadian farm. And unless we act now, the bees will keep dying. We have to show Bayer and Co. now that we won't tolerate them putting their profits ahead of our planet's health.
Sign the petition to tell Bayer, BASF and Syngenta to drop their bee-killing lawsuits now.
The dangerous chemicals Bayer and Co. make are neonicotinoids, or neonics. Neonics are soaked into seeds, spreading through the plant and killing insects stopping by for a snack. These pesticides can easily be replaced by other chemicals which don’t have such a devastating effect on the food chain. But companies like Bayer, BASF and Syngenta make a fortune from selling neonics -- so they’ll do everything they can to protect their profits.
The EU banned these bee-killers in May 2013, after a massive public campaign and a clear scientific finding from the European Food Safety Authority that neonics pose huge risks to bee populations. Let's defend this landmark ban for the bees and our food supply.
Sign the petition now to tell Bayer, BASF and Syngenta to drop their aggressive lawsuits!
Worse still, a EU report that could have banned dozens of pesticides has been buried -- due to industry's massive lobbying. We cannot allow Bayer and Co. to intimidate European authorities. The current ban on bee-killing pesticides is up for review soon, so let's make sure their lobby efforts aren't successful this time!
Bayer is an enormous company with a ton of public-facing brands. Neonics are a big part of its bottom line, but it can't afford poor publicity on a global scale. And if word gets out that Bayer is wrecking our ecosystem and threatening a creature responsible for pollinating a third of all our crops, the company will have to back down.
SumOfUs have been right at the front of the global campaign to save our bees. We came together to fight Bayer at a huge independent garden store show in Chicago, where the German chemical maker was out in force. Tens of thousands from the SumOfUs community took action and got Lowe's -- one of the biggest garden retailers in the world -- to stop selling bee-killing pesticides. The pressure on Bayer and Co. is mounting -- but we can only stop the mass bee die-off, if we keep standing up to them.
Bilcon -vs- Canada environmental laws defeated by mining company
Recent NAFTA decisions such as Bilcon v. Canada and Apotex II v. United States illustrate the very real need to prevent continued abuse of treaties’ non-discrimination standards (i.e., the national treatment obligation and the most-favored nation treatment obligation). The TPP, however, does not provide an adequate solution.
In Bilcon v. Canada, for example, the investors successfully argued to the tribunal that Canada had violated the national treatment obligation because officials had denied their environmental permit for a controversial mining project, while other mining projects had been allowed to proceed. As Canada highlighted, those other environmental approvals had involved proposals for projects of different scope, in different locations, and raising different concerns. Those differences, Canada, argued, meant that the Bilcon project was not in “like circumstances” with other mining projects, and that the government was justified in treating the Bilcon project differently than other mining projects.
The tribunal, however, disagreed with Canada. The tribunal determined that the “adverse treatment” accorded to the Bilcon investment as compared to other “similar” extractive industry projects was not “a rational government policy,” and was inconsistent “with the investment liberalizing objectives of the NAFTA.” The tribunal therefore found that Canada had violated the national treatment obligation. Notably, the tribunal reached this conclusion even though it declined to conclude that Canada’s decisions denying the Bilcon project’s environmental permits were motivated by any intent to discriminate against the investors based on their nationality.
This case evidences how non-discrimination obligations can be used by investors and tribunals to second-guess regulatory decisions and prevent strengthening of environmental and other standards over time. Even in cases where there is no evidence of nationality-based discrimination, states can be held liable.
Dolphin-free Tuna Labels banned showing how "Equal Treatment" provisions will be misused
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