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marmar

(77,131 posts)
Tue Jun 16, 2015, 10:13 AM Jun 2015

Gaius Publius: ISDS Provisions in TPP Violate Article III of the U.S. Constitution


By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, Americablog, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. This piece first appeared at Down With Tyranny.


There’s a growing recognition within the legal community that the ISDS provisions of treaties like NAFTA, TPP, many trade agreements already signed and almost all agreements going forward … may well be unconstitutional. That is, they violate protections offered to citizens by important articles of the Constitution — for example, Article III, which establishes the judicial branch of the U.S. government, assigns its powers and establishes the right of trial by jury (my emphasis, obviously):

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.


I recommend taking a moment to read the above. It’s from our founding document, and it’s pretty clear.

What Do Constitutional Lawyers Say About ISDS?

ISDS is shorthand for “Investor-State Dispute Settlement” provisions in current trade “agreements” — these are carefully not called treaties, apparently as an attempt to bypass the Treaty Clause of the U.S. Constitution, which mandates that treaties be ratified by a two-thirds vote of the Senate: ..................(more)

http://www.nakedcapitalism.com/2015/06/gaius-publius-isds-provisions-in-tpp-violate-article-iii-of-the-u-s-constitution.html




11 replies = new reply since forum marked as read
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annabanana

(52,791 posts)
1. To me, the ISDS is the scariest part of the whole deal.
Tue Jun 16, 2015, 10:32 AM
Jun 2015

At this point the very ground under our feet is literally for sale to any corporation in the world. (Or to any Country willing to pony up.)

leveymg

(36,418 posts)
2. ISDS is an attempt to preempt all new regulation of multinational corporations.
Tue Jun 16, 2015, 10:43 AM
Jun 2015

Everybody wants to rule the world, and they're already damn close. This will put them over the edge.



leveymg

(36,418 posts)
10. That's the preemption. It's also a subsidy to MNCs - a reverse tax.
Wed Jun 17, 2015, 08:08 AM
Jun 2015

As a practical matter, the CBO will have to calculate in this additional cost of litigating and paying off investors whenever a law or regulation is proposed. It will bring the regulatory process to a standstill.

Panich52

(5,829 posts)
7. Just tweeted last night that I was against fast track cuz trade agmts essentially treaties which
Tue Jun 16, 2015, 10:47 PM
Jun 2015

call f/ Senate ratification. Wonder just when the barely noticeable distinction between the two was made official?

ucrdem

(15,512 posts)
9. "Professional writer" = blogger = not an attorney
Tue Jun 16, 2015, 11:43 PM
Jun 2015

And peeps having been complaining about the "nonconstitutionality" of arbitration since it's been around, and that's been several decades now. It's like the "militia" prvoision gun enthusiasts like to yodel about, conveniently overlooking the preceding "well-regulated." IOW this old dog might hunt but at this point it isnt going to catch much.

leveymg

(36,418 posts)
11. ISDS have been around, but up until now the arbitration mechanism was state-to-state.
Wed Jun 17, 2015, 08:14 AM
Jun 2015

That meant that if an investor wanted to effectively press a case against another state, it had to enlist the support of it's own government's Trade Representative to do so. TPP cuts out the middleman, and makes it possible for corporations to flood the arbitration system with direct Investor-State complaints whenever a new law or regulation threatens to cut into their profit margin.

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