Public Citizen’s Lori Wallach has an analysis of that leaked document from the negotiations of the Trans-Pacific Partnership, and it’s really even worse than anticipated.

The leaked text provides stark warnings about the dangers of “trade” negotiations occurring without press, public or policymaker oversight. It reveals that negotiators already have agreed to many radical terms granting expansive new rights and privileges for foreign investors and their private corporate enforcement through extra-judicial “investor-state” tribunals.

Although TPP has been branded as a “trade” agreement, the leaked text shows that TPP would limit how signatory countries may regulate foreign firms operating within their boundaries, with requirements to provide them greater rights than domestic firms. The leaked text reveals a two-track legal system, with foreign firms empowered to skirt domestic courts and laws to directly sue TPP governments in foreign tribunals. There they can demand compensation for domestic financial, health, environmental, land use laws and other laws they claim undermine their new TPP privileges.

The leak also reveals that all countries involved in TPP talks – except Australia – have agreed to submit to the jurisdiction of such foreign tribunals, which would be empowered to order payment of unlimited government Treasury funds to foreign investors over TPP claims.

Wallach writes that there are 600 “corporate advisors” to the TPP, which have full access to the documents and the negotiators. Meanwhile, the public, the press, and even lawmakers have to learn about the terms of the deal through leaks like this. And then there’s this trap door:

The TPP may well be the last trade agreement that the U.S. negotiates. This is because the TPP, if completed, would have a new feature: it would be open for any other country to later join. TPP offered an opportunity to develop a new trade agreement model that could deliver the benefits of expanded trade without undermining signatory nations’ domestic public interest policies or establishing special privileges for foreign corporations. President Obama campaigned on fixing these investment rules to protect the public interest. Unfortunately, Public Citizen’s analysis of this text shows that the U.S. positions do not reflect the changes that candidate Obama pledged to remedy this regime’s threats.

So while the countries involved in this deal – Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore and Vietnam – are not substantially bigger than the two involved in NAFTA, when you have this turnkey feature, it’s basically a model for a global trade deal that puts corporate interests over national sovereignty.

Some other exciting tidbits:

• The deal forbids participating nations to apply financial transaction taxes or capital controls.
• Health and land use policies, government procurement decisions, regulatory permits, intellectual property rights and regulation of financial instruments such as derivatives would all be subjects open for corporations to go to the international tribunals and subvert national rules.
• “The foreign tribunals would be staffed by private sector lawyers who rotate between acting as ‘judges’ and representing corporations suing governments, posing major conflicts of
• Investors have the right to claim damages from governments based on their own expectations of how they should be treated, in terms of regulations or permitting.
• “U.S. negotiators alone are pushing for foreign investors to have greater rights than domestic investors with respect to disputes relating to procurement contracts with the signatory governments, contracts for natural resource concessions on land controlled by the national government, and contracts to operate utilities.”

This is basically a NAFTA-style deal that the whole world can eventually plug into. The only alibi I’ve seen so far is that this won’t prevent the establishment of regulations. But the investor-state relations provisions in NAFTA have already led to $300 million in payouts from governments to corporate investors. Obviously, if governments want to avoid the payouts, they have to change their environmental, public health, or financial regulations.

Josh Eidelson has some reactions from labor:

Celeste Drake, a trade policy specialist for the AFL-CIO, said the federation has voiced concerns with U.S. officials that the language could be used to attack labor regulations like mandatory overtime or maternity leave. She says “they have not shared our concerns, but have also not presented a compelling argument regarding why such challenges could not happen under our existing investment language.” Given Obama’s campaign rhetoric about reining in over-broad investor rights like those in NAFTA, said Drake, “definitely, it’s a disappointment.” She said the AFL-CIO hopes that negotiators from other countries will seek “to put in text that would be friendlier to human beings than what the traditional U.S. text is.” […]

“This is what happens when you get an administration that is pretty much in the lap of corporate America,” said Chris Townsend, the political action director for the United Electrical, Radio and Machine Workers of America and a longtime Obama critic. “That’s who they perform for, and that’s who most of them will go to work for after they lose the election in November.”

Harshness of the day award to Chris Townsend.

David Dayen

David Dayen