The European Venue for Green Ideas
Follow us on
Justice

The Corporate Court Behind TTIP – A real life monopoly game

Most people in Britain have grown up understanding the rules of Monopoly, the board game where the more you own, the more money you can extort from every other player until one player has a monopoly i.e. owns all the property on the board and has all the money.

The Transatlantic Trade and Investment Partnership (TTIP) is a “trade agreement” currently being negotiated between EU politicians (including UK MP’s and MEP’s) and multinational corporations, which will effectively turns the EU into a monopoly like board for Corporate America – but this is no innocent game – this is real life, and TTIP allows corporate America to usurp democracy in every EU country using a corporate court and a corporate rule book written by corporations for corporations.

A corporate court…

The “court” being used to sue governments using the ISDS clause in trade agreements is not a court of law but the London Court of International Arbitration (LCIA). Established in 1891 in the City of London, it is a private company limited by guarantee, which acts as a private corporate court to settle international commercial disputes between private corporations and was never intended to have power over governments – but the “Investor State Dispute Settlement (ISDS) clause being quietly inserted into “trade agreements”, for some unknown reason (other than corporate greed and corporate abhorrence at democracy) gives this corporate court power over any government which has signed a trade agreement with the ISDS clause in place.

At the time of its incorporation an academic journal said “this chamber will have all the virtues which the law lacks. It is to be expeditious where the law is slow, cheap where the law is costly, simple where the law is technical, a peacemaker instead of a stirrer-up of strife.”

But not content with bypassing every EU court of law to sue governments if TTIP is signed, corporations have decided the 1998 London Court of International Arbitration rules should be updated before TTIP (and the EU Canadian CETA) trade agreements are signed, and that the new LCIA “arbitration rules” should seek to “promote a more speedy, efficient, and fair arbitration process, one that is more aligned with modern arbitral practice.”

Translated this means corporations have just quietly changed their LCIA arbitration rules as of 1st October 2014, to make it even easier, faster and cheaper for Corporations to sue every EU government signed up to TTIP-CETA, in a move designed to tip their scales of corporate injustice firmly in Corporate America’s favour using what can only be described as LCIA corporate kangaroo courts.

Unlike a UK court of law (which bases decisions on UK and EU laws) that corporations claim are “stirrers of strife”, the “corporate court” does not adhere to professional codes of conduct, just “guidance” , uses rules written by corporations for corporations, does not take the public interest into account (as a court of law would if a corporation is suing a government) and the court is controlled by corporate “arbitrators” where all proceedings are undertaken in a closed “court” which only takes account of “free trade” values, disregarding values of public health, human rights, environmental protection, or labour or other social rights.

Fiddling the rules

Under the new 2014 corporate rules, while article 5 states LCIA “arbitrators” (who get paid fees), need to register any interest (although no-one knows yet just how much information they should supply), in reality if an arbitrator’s declaration of independence is inaccurate, as revealed in the “Constitution of the tribunal” section on page 79 of a document entitled “The Application of the 2014 LCIA Rules to Arbitral Proceedings Seated in Italy”, which explains, if you don’t challenge the impartiality of an arbitrator during the arbitration process, should you find out later an arbitrator or arbitrators were not in fact as impartial as they declared, there is nothing you can do about it as the LCIA and the arbitrator cannot be challenged after any rulings have been made – ensuring as long as you don’t find out about any actual lack of impartiality by an arbitrator during arbitration their ruling will stand with no right to appeal.

Another of the 2014 LCIA rule change by corporate representatives in the LCIA gives defendants (taxpayers) less time to respond than the LCIA 1998 rules, a change designed to make it more difficult for taxpayers and governments to defend themselves against corporate attacks as corporations think their desire to sue taxpayers as quickly as possible – should take precedence over giving taxpayers adequate time to prepare their defence.

Corporations have also awarded themselves the power to decide who should pay the “costs” of arbitration – corporations or taxpayers – I wonder how often the corporate arbitrators will force taxpayers to pay the costs.

The application of the new LCIA rules in Italy also makes clear in the section entitled “The conduct of the arbitration proceedings” on page 78, the normal “seat” of the “arbitration court” will be London – but unlike any other arbitration bodies rules, if the “parties” don’t agree then the corporate tribunal “arbitrators” can decide where the tribunal should be heard.

This ensures an LCIA appointed arbitrator has the freedom to rule American corporations can have their “tribunal” against any EU government seated in America – where the LCIA rules can be combined with American laws to tip the balance in favour of American Corporations against every EU government.

This rule also guarantees to make it more difficult for every EU government to find out in time if the corporate “arbitrators” who will sit in judgement in the LCIA “court” are truly independent and impartial with an LCIA loophole in article 11.2 stating the 14 days to successfully challenge the impartiality of an arbitrator and 14 days to re-nominate another can in fact be changed as the LCIA state “(or such lesser or greater time as the LCIA Court may determine), after which the LCIA Court shall appoint the replacement arbitrator without such re-nomination” – ensuring there is nothing to stop the LCIA saying taxpayers only have 1 day or 1 hour to nominate a new arbitrator – and if they don’t the arbitration panel gets to decide instead.

A chequered past

We just have to look at a similar body in America currently imposing £billion dollar fines on European banks to understand TTIP ensures a private LCIA corporate court can sit in America on the same basis (using its own rules) to impose fines on taxpayers in 28 EU countries any time any private American corporation goes to the LCIA demanding money from British and EU taxpayers because they don’t like a law just presented by any country in the EU, where our laws can be called into question by corporate arbitrators sitting in their own private corporate courtroom in London (or America or any country of the arbitrators’ choice).

The LCIA has also just given themselves the power to create corporation class action suits, where one or more corporations can gang together against any EU government in the same arbitration which will likely hugely increase the fines imposed on EU taxpayers, which could run into £billions, to be shared amongst American corporations under the “New Rules Facilitating the Consolidation of Multiple Arbitrations

UK MSP’s, MP’s and MEP’s should know by now, if TTIP is signed with the ISDS clause, corporations holding fracking licenses across the UK (most of which were hurriedly issued weeks ago in the 14th Fracking licensing round) before TTIP is signed, can use the TTIP ISDS loophole to take any future UK government to the fast track corporate LCIA court if they attempt to ban fracking – ensuring even if fracking corporations don’t make money out of fracking they can make a colossal fortune from just being in possession of fracking licenses if a ban is proposed or imposed in the UK after TTIP is signed.

Article 9.B is a change (to a little used LCIA rule) which again allows corporations the option to bypass UK courts of law to settle “asset” disputes before an arbitration tribunal.

Moreover, the LCIA has given themselves the power to appoint their own corporate “emergency arbitrator” within 3 days of a party application and the emergency arbitrator is required to decide the claim for “emergency relief” within 14 days following his or her appointment using their own new “emergency arbitrator process” again not created by law, just by corporations agreeing it should be so – with article 9.11 stating “arbitrators having the power to change the award on its own initiative or if one of the parties requests it to be changed (for more?)” but parties can choose to go to court if they choose (for now).

The LCIA boasts they can “impose confidentiality obligations that have little or no equivalent in many other international arbitration rules” – ensuring no EU government can tell us anything that goes on in secret kangaroo corporate courts who have given themselves the power to award damages against taxpayers of any EU country for £billions any time they decide it should be so.

The LCIA has also awarded itself new powers stop any of the parties appointing any new “legal council” unless the arbitrators agree, as described in “Legal Representation” section on page 80 of the document relating to LCIA 2014 rules.

The TTIP ISDS clause ensures the LCIA has the power to use their “arbitration panels” to allow LCIA appointed “arbitrators” to effectively veto current and future laws in 28 EU countries, using their own corporate kangaroo court – placing the LCIA and their corporate rulebook above UK and EU laws, courts and parliaments.

Breaking democracy

We don’t vote for American politicians, we don’t vote for corporate boardrooms and this is exactly why no corporation or the LCIA should have any power over any EU government and sit above our courts of law and our laws.

And the LCIA should not hold the undemocratic power to raid taxpayers’ pockets in private corporate courts sitting behind closed doors protected by confidentiality from investigation by journalists or the public.

Surely our MSP’s, MP’s and MEP’s should stop corporate America raiding our coffers?

SNP and UKIP want TTIP and CETA signed, with their ISDS clauses intact, as do the Labour, Tory and Lib Dem parties, who are working together to sign up to TTIP too. Despite their claims they “might” protect the NHS from TTIP, where is the protection for the rest of our public services? Our wealth, health, food, medicine, chemical safety and our right to privacy all under threat from Corporate America with democracy itself obviously in danger too (making a mockery of the devolved power offerings these parties know TTIP will usurp).

The Green Party is the only national party in the UK against TTIP being signed.

It is no wonder SNP, UKIP, Labour, Tory and Lib Dem MSP’s , MP’s and MEP’s are doing their best to avoid any public dialogue before they have signed their TTIP trade agreement with America (and the CETA trade agreement just agreed between the EU and Canada which has still to be signed – which also has the dangerous ISDS clause).

And just to show how out of step Labour, Tory, Lib Dem, SNP and UKIP parties are, the Economist magazine shines a light on the fact Brazilian politicians refuse to sign any trade agreement which includes the ISDS clause, yet still gets plenty of foreign investment – proving there is no need for this clause, with South African and Indonesia intending to drop out of current or no longer sign any trade treaty with this clause to stop investors using the LCIA court to fleece their taxpayers and forcing them back to courts of Law where they should be.

Some examples: the tobacco firm Philip Morris is suing governments in Uruguay and Australia for trying to discourage people from smoking. The oil firm Occidental was awarded $2.3bn in compensation from Ecuador, which terminated the company’s drilling concession in the Amazon after finding that Occidental had broken Ecuadorean law. The Swedish company Vattenfall is suing the German government for shutting down nuclear power. An Australian firm is suing El Salvador’s government for $300m for refusing permission for a goldmine over concerns it would poison the drinking water.

The same mechanism, under TTIP, could be used to prevent UK governments from reversing the privatisation of the railways and the NHS, or from defending public health and the natural world against corporate greed. The corporate lawyers who sit on these panels are beholden only to the companies whose cases they adjudicate, who at other times are their employers.”

Democracy is a fragile thing which will fast become relegated to history if TTIP and CETA are signed. Moreover, the BBC and other TV channels are refusing to give the Green Party a place in their General Election televised debates – because the major parties and broadcasters want to keep the British public in the dark as much as possible regarding TTIP before the general election.

So as a nation, now we understand the reality we must demand answers as to why UK MP’s allow a bunch of men in the City of London to wield undemocratic super powers, without public knowledge, undemocratic powers so great private corporations can use them to usurp democracy, not only in the UK but across the world?

Newsletter

Cookies on our website allow us to deliver better content by enhancing our understanding of what pages are visited. Data from cookies is stored anonymously and is never shared with third parties.

Find out more about our use of cookies in our privacy policy.