220+ profesorjev v peticiji proti sporazumu TPP, še posebej pa ISDS mehanizmu

Med prvopodpisanimi so tudi Jeffrey Sachs, Joseph Stiglitz in Dani Rodrik….

Dear Member of Congress:

Last March 2015, members of the legal community wrote to congressional leaders and administration officials to oppose the inclusion of Investor-State Dispute Settlement (ISDS) provisions in the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). We write now to express our extreme disappointment that the final text of the TPP that was finally made public in November 2015 did not heed those warnings about this controversial provision’s negative consequences for our legal system. Those concerns expressed in the 2015 letter were based on past agreements and leaked texts from the TPP negotiations. Unfortunately the final TPP text simply replicates nearly word for word many of the problematic provisions from past agreements, and indeed would vastly expand the U.S. government’s potential liability under the ISDS system.

We therefore urge you to protect the rule of law and our nation’s democratic institutions and sovereignty by rejecting this TPP as long as ISDS is included. While there is still time, we urge you to pressure the United States Trade Representative (USTR) to change course in the TTIP negotiations and in negotiations of other prospective agreements, such as the Bilateral Investment Treaty (BIT) between the United States and China, to ensure that ISDS is not included in any of those pacts.

ISDS grants foreign corporations and investors a special legal privilege: the right to initiate dispute settlement proceedings against a government for actions that allegedly violate loosely defined investor rights to seek damages from taxpayers for the corporation’s lost profits. Essentially, corporations and investors use ISDS to challenge government policies, actions, or decisions that they allege reduce the value of their investments.

The problem with ISDS is not that it allows private corporations to sue the government for conduct that harms the corporations’ economic interests. Indeed, U.S. domestic law already recognizes the importance of granting private citizens and entities (including foreign corporations) the power to take legal action against the government in order to help promote effective implementation of the law and adherence to the Constitution. Over the past two centuries, the United States – through citizens, elected representatives, and courts – has established a framework of rules that govern such lawsuits against the government and continually refines those rules through democratic processes. These include rules on court procedures and evidence, which are designed to ensure the fairness, legitimacy and reliability of proceedings; rules on who may bring lawsuits and under which circumstances, which are designed to balance the right to sue with the need to ensure that government regulation in the public interest is not made impossible due to unlimited litigation; rules on the power of courts, which are designed to ensure that judges do not overly intrude on legitimate policy decisions made by elected legislatures or executive officials, and to ensure that federal judges do not unduly interfere with state law and policy; rules on appropriate remedies, which are crafted to achieve diverse policy aims such as deterrence, punishment, and compensation; and rules on the independence and accountability of judges who decide cases against the government.

Through ISDS, the federal government gives foreign investors – and foreign investors alone – the ability to bypass that robust, nuanced, and democratically responsive legal framework. Foreign investors are able to frame questions of domestic constitutional and administrative law as treaty claims, and take those claims to a panel of private international arbitrators, circumventing local, state or federal domestic administrative bodies and courts. Freed from fundamental rules of domestic procedural and substantive law that would have otherwise governed their lawsuits against the government, foreign corporations can succeed in lawsuits before ISDS tribunals even when domestic law would have clearly led to the rejection of those companies’ claims. Corporations are even able to re-litigate cases they have already lost in domestic courts. It is ISDS arbitrators, not domestic courts, who are ultimately able to determine the bounds of proper administrative, legislative, and judicial conduct.

This system undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law.

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Celotna peticija je dostopna tukaj.

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