More than 100 law professors have signed a letter to congressional leaders and the U.S. Trade Representative urging them to “protect the rule of law and the nation’s sovereignty” as trade agreements are negotiated. Specifically, the professors oppose the inclusion of Investor-State Dispute Settlement (ISDS) provisions in these agreements. The letter was released by Alliance for Justice. Below, please find the text of the letter.
[Reposted from the End Global Governance blog | March 13, 2015]
Dear Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, Minority Leader Pelosi, and Ambassador Froman:
As members of the legal community, we write 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). As you consider trade authority
legislation and negotiate these agreements, we urge you to protect the rule of law and our nation’s sovereignty by ensuring ISDS is not
included.
ISDS grants foreign corporations a special legal privilege, the right to initiate dispute settlement proceedings against a government for actions that allegedly cause a loss of profit for the corporation.
Essentially, corporations use ISDS to challenge government policies, actions, or decisions that they allege reduce the value of their investments. These challenges are not heard in a normal court but instead before a tribunal of private lawyers.
This practice threatens domestic sovereignty and weakens the rule of law by giving corporations special legal rights, allowing them to ignore domestic courts, and subjecting the United States to extrajudicial private arbitration. Corporations are able to relitigate cases they have already lost in domestic courts. Further, they are able to do so in a private system lacking procedural protections. As more multi-national corporations are based outside of the U.S., more such challenges will be brought against the U.S. ISDS proceedings lack many of the basic protections and procedures of the justice system normally available in a court of law. There is no appeals process.
There is no oversight or accountability of the private lawyers who serve as arbitrators, many of whom rotate between being arbitrators and bringing cases for corporations against governments. The system is also a one-way ratchet because corporations can sue, forcing governments to spend significant resources, while governments impacted by foreign corporations cannot bring any claims.
In recent years, corporations have challenged environmental, health, and safety regulations, including decisions on plain
packaging rules for cigarettes, toxics bans, natural resource policies, health and safety measures, and denials of permits for toxic waste dumps. Hundreds of cases have been filed against
approximately 100 governments over the past few years.
ISDS threatens domestic sovereignty by empowering foreign corporations to bypass domestic court systems and privately enforce terms of a trade agreement. It weakens the rule of law by removing the procedural protections of the justice system and using
anunaccountable, unreviewable system of adjudication.
For the above reasons, we urge you to ensure ISDS is not included in the TPP and the TTIP.
Thank you for your consideration.
Sincerely,
Erwin Chemerinsky
Dean of the School of Law, Distinguished Professor of Law, Raymond Pyke Professor of First Amendment
Law, University of California, Irvine
Joel Rogers
Sewell Bascom Professor of Law, Political Science, Public Policy, and Sociology, University of Wisconsin-Madison
Marley S. Weiss
Professor of Law, University of Maryland Francis King Carey School of Law
David Abraham
Professor of Law, University of Miami School of Law
Constance Anastopoulo
Associate Professor of Law, Charleston School of Law
Tawia Ansah
Associate Dean for Academic Affairs & Professor of Law, Florida International University College of Law
Fran Ansley
Distinguished Professor of Law Emeritus, University of Tennessee College of Law
Robert H. Aronson
Betts, Patterson & Mines Professor Emeritus, University of Washington School of Law
Marianne Artusio
Associate Professor of Law, Director, Institute of Aging and Longevity Law, Touro Law Center
Michael Asimow
Visiting Professor of Law, Stanford Law School
Brook Baker
Professor, Northeastern University School of Law
Mark Barenberg
Isador and Seville Sulzbacher Professor of Law, Columbia Law School
Phyllis Bernard
Professor of Law & Director of the Center on Alternative Dispute Resolution, Oklahoma City University School of Law
Susan Bisom-Rapp
Professor of Law, Thomas Jefferson School of Law
Christopher L. Blakesley
Barrick Distinguished Scholar & Cobeaga Law Firm Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas
Mercer Bullard
Professor of Law & Mississippi Defense Lawyers Association Distinguished Lecturer, University of Mississipi School of Law
Robert Burgdorf
Professor Emeritus, David A. Clarke School of Law
William Burnham
Professor of Law Emeritus, Wayne State University Law School
Brandon Butler
Practitioner in Residence, Intellectual Property Law Clinic, American University, Washington College of Law
Emily Calhoun
Professor Emerita, University of Colorado Law School
Robert Calhoun
Professor of Law, Golden Gate School of Law
Gilbert Carrasco
Professor of Law, Willamette University College of Law, and Professor of Public Law, Kuwait International Law School, Willamette University
Paul Carrington
Harry R. Chadwick, Sr. Professor Emeritus of Law, Duke University School of Law
Michael Carroll
Professor of Law and Director, Program on Information Justice and Intellectual Property, American University, Washington College of Law
Andrea Charlow
Associate Dean & Professor of Law, Drake University Law School
Neil Cogan
Professor of Law and Former Dean, Whittier Law School
Amy Cohen
Professor of Law, Ohio State University Moritz College of Law
Liz Ryan Cole
Professor of Law, Vermont Law School
Angela Cornell
Clinical Professor of Law, Cornell University Law School
Robert Covington
Professor of Law Emeritus, Vanderbilt University
Dan Danielsen
Associate Dean for Academic Affairs & Professor of Law, Northeastern University School of Law
Thomas J. Davis
Professor, Arizona State University
Helen de Haven
Associate Professor of Law, Atlanta’s John Marshall Law School
John Drobak
George A. Madill Professor of Law, Professor of Economics, and Professor of Political Economy, Washington University School of Law
Charles Dykman
Professor, University of Wisconsin Law School
John Echeverria
Professor of Law, Vermont Law School
Pamela Edwards
Professor of Law, CUNY School of Law
Stephanie Farrior
Professor of Law, Director, Center for Applied Human Rights, Vermont Law School
Stephen Feldman
Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming College of Law
Barbara Fick
Associate Professor of Law, University of Notre Dame Law School
Martha Field
Langdell Professor of Law, Harvard Law School
Catherine Fisk
Chancellor’s Professor of Law, University of California, Irvine
School ofLaw
Barbara Flagg
Professor of Law Emerita, Washington University School of Law
Sean Flynn
Professorial Lecturer, American University, Washington College of Law
Sally Frank
Professor of Law, Drake University School of Law
Andrew Friedman
Lecturer-in-Law, Columbia Law School
Mary Ellen Gale
Professor of Law, Whittier Law School
Charlotte Garden
Assistant Professor, Seattle University School of Law
Stephen Gottlieb
Jay and Ruth Caplan Distinguished Professor of Law, Albany Law School
StevenGreenberger
Associate Professor of Law, DePaul University College of Law
Peter Halewood
Professor of Law, Albany Law School
Joseph Harbaugh
Professor Emeritus and Dean Emeritus, Nova Southerastern University Law Center
Leora Harpaz
Professor Emeritus, Western New England University School of Law
Michael Harper
Professor of Law, Boston University
Lynne Henderson
Professor Emerita, William S. Boyd School of Law, University of Nevada, Las Vegas
Roger Henderson
Ralph W. Bilby Professor of Law Emeritus, University of Arizona
Christoph Henkel
Associate Professor of Law, Mississippi College School of Law
Jennifer Hill
Lecturer, University of Miami School of Law
Cynthia Ho
Clifford E. Vickrey Research Professor of Law, Loyola University of Chicago School of Law
David R. Hodas
Professor of Law and H. Albert Young Fellow in Constitutional Law, Widener University School of Law
Ann Hodges
Professor of Law, University of Richmond
K. Babe Howell
Associate Professor, City University of New York School of Law
Marcus Hurn
Professor of Law, University of New Hampshire School of Law
Elizabeth Iglesias
Professor of Law, University of Miami School of Law
Tim Iglesias
Professor of Law, University of San Francisco School of Law
