Despite the Administration’s best efforts to keep the details of the Trans-Pacific Partnership secret, Wikileaks obtained and published several sections of the document several months ago. Because it now appears that the TPP will likely get passed into law, it is worth speculating about its potential implications in the field of environmental law.
In its press release trumpeting the release of a copy of the Investment section of the TPP, Wikileaks focuses on what it calls “an unaccountable supranational court for multinationals to sue states.” By signing the deal, the U.S. would agree to submit itself to the jurisdiction of this tribunal. Interestingly, Australia is listed in a footnote to the section as refusing to submit to the jurisdiction of the tribunal. Wikileaks goes on to report that this tribunal, which is called an “investor-state dispute settlement (ISDS) tribunal” overrides national court systems and that the ISDS tribunals introduce a mechanism by which a multinational corporation can force governments to pay those corporations. Australia lost a case filed against it by Philip Morris for tobacco packaging laws, which is one reason Australia may be bowing out of this section.
I reviewed the provisions and it does appear that the language says what Wikileaks says it says, though without the spin. There is a new tribunal that is set up. The legal process, though ponderous, is remarkably free of any reference to either the common or civil law. The arbitrators appear to be free to examine the dispute on their own terms, unhindered by precedent.
For lawyers (and especially environmental lawyers), passage of this section of TPP by the United States would certainly be interesting. Keep in mind that multinational corporations are not necessarily “American” and with the flight of companies to Ireland and other countries many are no longer as “American” as we may assume. Instead, any regulations that affected Sinopec, China Mobile, Roche, and other companies you may never heard of could seek compensation and other relief from the U.S.
Note that this leaked version may not bear any similarity to the version currently being considered.
You can download a copy here: Wikileaks Draft of TPP Investment Chapter