TPP may be pushed through in Lame Duck session (between election &
Newsletter published on 13 October 2016
(1) TPP could be ratified during the lame-duck
(2) Obama Promises Lame-Duck TPP Push Despite Uproar Over
(3) Sanders, Progressives Brace for Lame-Duck
(4) Congress should resist pressure to pass TPP in lame-duck
after the elections
(1) TPP could be ratified during the
trade deal: plain packaging challenge triggered 'hysteria', lawyer
Lawyer for Philip Morris’s bid to take Australia to court over
laws says Australia has nothing to fear from trade deals that
Katharine Murphy Political
Monday 10 October 2016 04.30 AEDT Last modified on Monday 10
2016 05.23 AEDT
The legal counsel to tobacco giant Philip
Morris has told a
parliamentary committee that people have responded
hysterically to a
landmark legal case challenging Australia’s plain
Philip Morris, in the first investor-state dispute ever
Australia, used a 1993 investment agreement between
Australia and Hong
Kong to challenge the then Labor government’s plain
The case was thrown out in December 2015 when an
issued a decision that it had no jurisdiction to hear
The action was considered an important
test case in investor-state
litigation and it prompted the New Zealand
government to delay
implementation of its own plan packaging proposal until
the decision had
been handed down.
Court condemns tobacco giant Philip
Morris over secret bid to sue Australia
parliament’s treaties committee has been conducting an
inquiry into the
Trans-Pacific Partnership, and has heard evidence from
Sam Luttrell, a
lawyer at the Perth-based legal firm Clifford Chance –
the largest legal
practice in Australia dealing with investor-state
Luttrell confirmed to the committee during a recent hearing about
TPP that he was counsel for Philip Morris in the landmark plain
packaging case, which he said had been mightily overblown.
counsel for Philip Morris, and I would just like to say, picking
something I said earlier, that I think there was a good deal of
around the Philip Morris case," he told the committee.
"There was a very
intense and often heated dialogue surrounding that
case whilst it was on
foot, and then you heard a deafening silence when
Australia saw that claim
off — and saw that claim off on a preliminary
American-led trade pact, the TPP, contains an investor-state dispute
settlement (ISDS) clause, and such clauses are an increasingly
controversial feature of international trade agreements.
give overseas investors powers to sue the Australian
legislation is introduced harming their investments.
government is a strong supporter of the TPP and the prime
minister used a
recent trip to the United States to urge the US Congress
to ratify the trade
pact because it underscores America’s strategic
commitment to the rule of
law in the Asia-Pacific region.
China is not a party to the TPP, and is
pushing a rival trade pact,
through Asean – the regional comprehensive
Barack Obama is making what is being characterised in the US
last-ditch efforts to persuade Congress to support the controversial
trade deal. Both presidential hopefuls Donald Trump and Hillary Clinton
say they oppose it.
But some analysts believe the trade deal could be
ratified during the
so-called lame-duck session – the period between the US
in November and the inauguration in January.
Labor and the Greens opposed ISDS clauses in trade agreements.
Morris’ counsel told parliament’s treaties committee "a country
Australia, with a tradition of reliance on exports, a history of
investment in the Asia-Pacific and a future in which its highly
well-educated populace is increasingly engaged in cross-border
everything to gain from participating in initiatives like
"But still there has been a heated debate in Australia around the
investment rules, in particular the ISDS mechanism of the treaty,"
"Much of what has been said in this debate is and has
been simply, in my
view, an overreaction to a single case, being the claim
by Philip Morris
against Australia, which Australia successfully knocked out
Luttrell was asked during the hearing by ALP
backbencher Josh Wilson for
his view on regulatory chill – a situation that
develops when countries
second-guess themselves or do not go down a
particular regulatory path
out of fear that policy making would trigger an
The lawyer said the evidence for regulatory chill was
at present, but there have been cases where states have
legislative hand when faced with investor
"Whether they should or should not have done so is a question of
the regulation was good or bad. There is, I think, in the regulatory
chill thesis an unwritten assumption that regulation is good," Luttrell
"I would say, and it is very much my experience, that
deserve to be chilled."
Wilson later told Guardian
Australia: "Some believe that foreign
companies should be able to influence
domestic policy and that so-called
regulatory chill is not a bad
How can Philip Morris sue Uruguay over its tobacco laws? | Alfred de
"I absolutely disagree, and even the proponents of ISD
the committee have tended to accept there’s no value in or
need for ISD
provisions between us and countries like the US, Japan, and
ALP backbencher said.
Wilson contended Australia had
already endured a "brush with death"
during the landmark Philip Morris
"Phillip Morris had a serious go at killing off an important health
reform in Australia and succeeded in delaying a similar reform in NZ for
three years," he said.
"In my view ISD represents an unconscionable
risk and at the very least
should be excluded between Australia and the US,
Japan, and Canada, just
as we have already excluded it between Australia and
(2) Obama Promises Lame-Duck TPP Push Despite Uproar Over
A PROVISION THAT would let foreign corporations challenge new
laws and regulations has become the latest flashpoint in the battle
the Trans Pacific Partnership trade agreement, even as President Obama
on Tuesday said he will renew his push for its passage in the lame-duck
session of Congress.
"We’re in a political season now and it’s always
difficult to get things
done," Obama said at a town hall meeting in Laos.
"So after the
election, I think people can refocus attention on why this is
important." He sounded confident: "I believe that we’ll get it
The latest salvo from opponents of the deal came in the form of a
to Congress signed by hundreds of law professors and economists –
including Laurence Tribe, who taught Obama at Harvard – protesting the
inclusion of "Investor State Dispute Settlement" (ISDS) provisions in
the TPP agreement.
The ISDS provisions would empower corporations who
object to U.S. laws
and regulations that cut into their profits to sue the
before an international arbitration panel. The signatories to
write that this "system undermines the important roles of our
and democratic institutions, threatens domestic sovereignty, and
the rule of law."
Senator Elizabeth Warren, D-Mass., a
leading critic of the ISDS
provisions, introduced the letter on a conference
call hosted Wednesday
by the advocacy group Public Citizen.
about leverage," Warren said. "Leverage for big companies to
intimidate governments who might dare take action that
She cited the example of Canada being successfully sued under
contained in the North American Free Trade Agreement (NAFTA) by a
U.S.-based company that was denied a permit for an open-pit mining
Listen to the call:
The Obama administration has pushed
back at critics of the ISDS
provisions, saying that it is a routine system
that exists in thousands
of other international agreements, including 50
that the United States
is currently a party to.
But that routine
system has undermined domestic laws in some countries.
Hamby recently reviewed dozens of ISDS rulings,
documenting how corporations
used these international arbitration panels
to avoid the reach of domestic
For instance, following the ouster of Egyptian dictator Hosni
the country sentenced Dubai-based real estate mogul Hussain Sajwani
five years in prison for corruption charges related to a sweetheart land
deal between his company Damac Properties and the country’s Mubarak-era
Within a week of his conviction, Damac decided to
sue Egypt using the
World Bank’s arbitration process – arguing that because
regime had agreed to the terms, the deal was not
As Sajwani enlisted the help of some of the world’s top ISDS
argue his case in a court in Paris, Egypt decided to settle. The
of the settlement are confidential, but we do know that Sajwani’s
sentence was completely eliminated.
That set a precedent for a
wave of ISDS claims. More and more firms used
the ISDS process to avoid
penalties handed down from Egypt’s courts.
Under the TPP, the U.S. would
be exposed to a larger number of potential
provisions are included in TPP, the number of foreign
investors who’d be
empowered to use this mechanism would double from
what we currently have in
our 50 agreements already," said Melinda St.
Louis, international campaigns
director at Public Citizen’s Global Trade
In all, Public
Citizen estimates that passage of the TPP would newly
empower over 10,000
U.S. subsidiaries owned by foreign corporations to
cases against the American government.
Corporations from six countries
that do not currently have the ability
to bring ISDS claims against the
United States — Vietnam, Japan,
Malaysia, Australia, New Zealand, Brunei –
would gain that right under
As The Intercept has previously
reported, banks and other financial
institutions would be able to use TPP
provisions to sue over virtually
any change in financial regulations
affecting future profits in an
States has not yet lost an ISDS case, but is facing a major
TransCanada. The company is using arbitration under NAFTA to
billion after the Obama Administration decided not to approve
XL Pipeline project.
(3) Sanders, Progressives Brace for Lame-Duck TPP
Progressives Brace for Lame-Duck TPP Battle
Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan
made it clear that they do not believe the 12-nation Trans-Pacific
Partnership trade agreement should receive a vote in the lame-duck
session, the period after November’s elections and before the 115th
Congress is sworn in next year.
TPP opponents such Sen. Bernie
Sanders (I-Vt.) aren’t convinced.
Sanders, who was joined by three
leading House progressives, on
Wednesday insisted the TPP should not come up
in the lame-duck session.
The lawmakers voiced their opposition with the
same vigor they brought
months ago when they first made the same appeal. But
that was when
Sanders was a Democratic presidential candidate, and lame-duck
consideration of the TPP appeared more likely.
The opponents are
trying to ensure the prospects for consideration don’t
resurface. And they
have backup from influential groups such as the
AFL-CIO and the Sierra Club,
which participated in a "Day of Action"
Wednesday aimed at inundating
lawmakers with communiques to oppose a
opposition to the deal is not surprising. They have
lobbied against the TPP
and related agreements for years. Even without
their protests, the trade
agreement faces immense obstacles in Congress.
First, there are the comments
ruling out a lame-duck vote from Ryan and
McConnell. Second, there is
growing opposition to trade agreements,
including the TPP, from GOP
presidential nominee Donald Trump and
anti-TPP comments from normally
mainstream Republican Sens. Pat Toomey
of Pennsylvania and Rob Portman of
Sanders says business groups will still attempt to use their
and coffers to push the deal through, with help from President
despite the beating the TPP has taken in the press and among
"Why are we nervous? Well, we’re nervous because we’ve been
here once or
twice before," Sanders told reporters Wednesday on Capitol
you have the Business Roundtable and virtually every
corporation saying they want this, we understand that’s real
John Engler, president of the Washington-based Business
in comments to reporters Monday that the group will
"full-court press" for trade agreements such as the
Sanders said opponents of the trade deal are preparing for business
groups and the Obama administration to bombard voters with advertising
and on-the-fence lawmakers with political horse-trading. TPP opponents
say the same tactics characterized last year’s ultimately successful
efforts to grant Obama fast-track trade authority.
"TPP is the last
major priority of this administration, and they are
going all in," said Rep.
Rosa DeLauro (D-Conn.). "Make no mistake about
it: They will do virtually
anything they need to do to get the votes. We
should anticipate more free
rides on Air Force One, visits to the White
House, special events in
members’ districts to try to gain favor for the
Jarrett, one of Obama’s closest advisers, made it clear in
to a Wednesday meeting of the President’s Export
Council that Obama will
fight hard for the TPP during his waning days in
though, as the president says, we’re in the fourth quarter, really
things happen in the final seconds before the clock runs out,"
"He is intent on making the absolute best of his remaining
time in office,
and at the top of his agenda … is of course TPP."
Obama has indeed
started to ramp up his pitch for the TPP, which he sees
as a vital component
of his foreign policy and economic legacies.
During a Monday meeting with
the top four Democrats and Republicans in
the House and Senate, Obama said
he briefed the lawmakers on his
conversations with Asia-Pacific leaders
during his recent trip to Asia.
He said the leaders expressed their desire
to have the United States
participate actively in the international economy,
according to White
House Press Secretary Josh Earnest.
wide-ranging in size as Japan, Mexico, Canada, Malaysia,
Vietnam and Brunei
have agreed to the deal and are now in the process of
through their domestic procedures.
Obama has said the TPP would be good
for workers in the United States
and in the TPP trading zone, arguing that
the accord has strong rules on
labor and the environment that go beyond the
core goals of reducing
tariffs and other trade barriers.
biggest political hurdle is the increasingly strong opposition
to the deal
from Hillary Clinton. The Democratic nominee’s opposition to
started with critical statements while she was running against
the primary election. But her comments at the time didn’t
progressives. Her commitment to oppose the deal
culminated last month when
she said that she opposes it now, will oppose
it after the election and will
oppose it if she becomes president.
Sanders and DeLauro both indicated
that they are satisfied with
Clinton’s stated opposition to the
Sen. Sherrod Brown of Ohio, another Democrat leading the
the deal who endorsed Clinton during the primary season, made
comments to Morning Consult last week. He blamed any skepticism over
Clinton’s opposition to a media narrative, rather than any genuine worry
among like-minded policymakers that she’ll backtrack on her statements
if she wins the White House.
"On this one, she’s against TPP," Brown
said. "She’s said it, I believe
it. Nobody has a higher standard than I do
on trade in this whole body.
I believe it. She’ll stay with it. She will
work with us on a different
trade policy, period."
should resist pressure to pass TPP in lame-duck session
Policy In Focus
The National Security Case for a TPP Lame Duck Vote:
When Congress meets for its lame-duck session after the elections,
should resist pressure to pass the Trans-Pacific Partnership.
Steve Suppan, October 12, 2016.
Notwithstanding President Barack Obama’s
best efforts to sell the
Trans-Pacific Partnership (TPP) Agreement to
Congress and the public on
economic grounds, presidential and congressional
candidates are shunning
the TPP as a winning campaign issue. Even Senator
Rob Portman, a former
U.S. trade representative, doesn’t mention the TPP in
"Jobs and Growth" agenda. The economic forecasting arguments
for TPP are
very weak—even according to the "heroic assumptions" of
as no change in the U.S. trade balance or net employment as
a result of
the TPP. So, what arguments do the TPP proponents have
When Congress returns to Washington after the November 8 elections,
members, particularly the defeated or retiring legislators, will be
pressured to vote for the TPP in large part on national security
grounds. What these grounds are, just like the draft TPP texts
themselves, will remain a closely guarded secret.
Kind (D-WI) told Inside U.S. Trade that following a
security briefing about the TPP, "It’s a very
powerful argument; it’s not
just trade, it’s an important tool in our
diplomatic and national security
arsenal." He could not reveal the
details of the "very powerful argument"
without violating his security
clearance. After the elections, Kind said,
military leaders (presumably
retired, since active duty officers are not
allowed to lobby) would be
deployed to lobby Congress to vote for the TPP.
There will be more
classified briefings for members of Congress, followed by
conferences about the "very powerful argument" whose reasons the
Peoples’ Representatives cannot reveal publicly without serious legal
repercussions. Justifying one’s TPP vote on opaque national security
grounds will surely be easier than trying to justify the vote on
economic grounds, as Kind’s own situation illustrates.
Kind’s plan for aiding economically distressed Wisconsin
dairy family farms
in his district involves removing export barriers and
immigrant work force that is the labor backbone of
Animal Feed Operations (CAFOs). Although Kind is a
leading Democratic TPP
supporter, the plan does not mention the TPP, as
one of his aides noted. If
it were to mention the TPP, Representative
Kind would have to answer
questions about the impact of increased TPP
dairy ingredient imports on low
and plummeting U.S. raw milk prices. He
would have to answer, as IATP did
recently, why TPP supporters want to
increase dairy ingredient imports when
U.S. dairy processors are pouring
U.S. farmers’ raw milk into high-tech
sewers. Since the main
beneficiaries of this dairy import scheme are
convicted U.S. raw milk
price fixers, such as the Dairy Farmers of America
and Dean Foods, the
better part of valor dictates that Representative Kind
justify his vote
for the TPP on the basis of classified national security
On September 28, Secretary of State John Kerry asked, as if
the TPP’s other 11 prospective members, "If America won’t enter
partnership with us on economic matters, why should we look to
Washington for guidance on political or security matters?" Secretary
Kerry’s ventriloquized question makes sense if you believe that the
United States has geopolitical and military security influence only to
the extent that it can use trade policy as a "soft power" tool to reward
or punish countries in President Obama’s "pivot to Asia."
consider just some of the sources of that influence. The U.S.
budget is larger than the next seven military budgets combined
the military budgets of U.S. intelligence agencies). The
Agency is authorized to spy on 193 countries and 20
organizations, as well as to report on the activities of
corporations. Doesn’t the United States already control
of influence in political and security matters so
that prospective TPP
"partners" would seek U.S. "guidance" regardless of
whether or not Congress
approves the TPP? President Obama and his
successors will hardly need the
TPP to order the intelligence agencies
to determine whether foreign
corporate activities pose a present and
imminent danger to the United States
or are stealing U.S. intellectual
property. Nevertheless, would-be foreign
policy realists (ignoring the
prospective Latin American members of the TPP)
contend that a successful
"pivot to Asia" turns on the approval of the
A recent article in Foreign Policy noted that
legacy ultimately will be determined by ratification of the
12-member free-trade pact, the first to include the world’s
third-largest economies, is not just important for business.
high-standards agreement it has the potential to affect more than
tariffs, reaching deep into member countries to create conformity
the environment, food safety, intellectual property,
digital economy, development, and other standards. If
China were to join the
TPP, conformity with these clauses would have a
effect on the nature of the Chinese state.
Though a distant outcome at the
moment, it is not implausible.
This kind of argument, however appealing
to foreign policy hawks in its
idealism, is thoroughly implausible on a
number of grounds. We outline
just three here.
The TPP is not a "high
standards agreement." For example, the TPP
standard of scientific data and
studies to be used in risk assessments
of food and agricultural
products—"reasonably available and
relevant"—allows for a continuation of
the widespread use of
Confidential Business Information claims to shield
from the higher standard of public and peer-scientific
The TPP proponents of "removing regulatory irritants to trade,"
the U.S. Chamber of Commerce, are also attacking a broad array of
regulatory agency budgets and mandates through their congressional
allies. For example, Congress has refused to fund the Food Safety
Modernization Act adequately to implement its "higher standards,"
including those applying to imported food and agriculture products.
Industry has strongly opposed regulatory service user fees to compensate
for the federal budget shortfall. If the United States is not willing to
budget to implement and enforce standards, should we assume that other
TPP governments will do so?
China has no economic or strategic need
to join the TPP and cannot be
geopolitically "contained" by its standards.
The United States has been
negotiating a bilateral investment treaty with
China since 2008 and may
conclude negotiations in 2017, so China will not
need to comply with TPP
investment provisions. The United States has allowed
Chinese state owned
companies to buy majority shares of the meat-processing
Smithfield, and the agricultural seeds and chemical company
following national security reviews and with no "transformative
strategic effects" resulting from the Chinese takeovers. China is
Australia’s number-one trading partner; New Zealand has had a free trade
agreement with China since 2008; Canada has announced its intention to
start FTA negotiations with China; Peru, Vietnam, and Chile are seeking
Chinese investment. None of these facts points to a China that will
comply with TPP rules that it has not negotiated.
In a rebuttal to
Secretary Kerry’s geopolitical argument for passing the
Sander Levin, the top Democrat on trade and
investment issues in the House
of Representatives, said "An agreement
that is not in our economic interest
cannot be in our national security
interest because our national security
depends on our economic strength,
including in manufacturing." He warned the
Obama administration not to
try to pass the TPP during the lame duck
session. To do so would
intensify citizen opposition to what he called a
"mindless approach that
assumes more trade is always better, no matter what
Among the issues Levin wants the next administration to
the Investor State Dispute Settlement (ISDS) Mechanism,
corporations and other investors, such as hedge funds, to sue
governments over regulatory actions perceived to impair anticipated
investor profits. The ISDS, which IATP opposes, is a one-way private
tribunal that provides governments with no recourse to sue investors for
cross-border regulatory evasion and harm to public, worker, and
environmental health caused by investor activities.
It’s important to
detail exactly how U.S. trade and investment policy
substance and process
should change, something IATP and many others are
developing now. But to
give Levin’s proposals and those of others a
chance to become part of U.S.
trade and investment policy, policy space
for them must be created by
defeating the TPP.
Steve Suppan is a senior policy analyst at the
Institute for Agriculture
and Trade Policy.
a line of crap. , We lost our industries power from trade deal and
agreements . Look at the steel mill and other plant , That have went
overseas . Rebuilt over there , knock – down here . We need to vote out
these lying misleading representative . That takes money over people .
Vote the incumbents out of office ..