The Corporate Person Strives for Primacy
If enough people see it? It’s alarming how few people, among our political representation, commentators, writers, could see the coup that was lying within the intercontinental trade deal which is currently being secretly negotiated.
Yeah, sorry, this is warning of an imminent coup. This is to be a usurping of the rights of the natural person by the rights of the corporate person. And then the paddock gate will close on the natural persons and be locked; the end of history.
The TTIP, Transatlantic Trade and Investment Partnership, is being secretly negotiated between the EU and US, the aim being to liberalise trade and investment conditions between the EU and the US. Much of the scant information the general public have is from leaks.
The TTIP itself is said to be about standardisation of measurements and needless red tape and stuff to facilitate transatlantic trade. It’s about liberty, and free trade, and growth and huge opportunities. It’s progress, who could argue with free trade and growth?
The whole agreement is vaunted to bring a huge increase in wealth and jobs, etc. This is fervently believed even though previous free trade agreements have signally not delivered the promised benefits in terms of jobs, in fact, they’ve delivered the opposite.
There’s a number of alarming implications to this agreement; most alarming of all, hidden away in the complex drafts, is the element that’s quietly referred to as Investor-State Dispute Settlement (ISDS); it’s also referred to as Multilateral Agreement on Investment (MAI).
This kind of thing has been on agendas for a while now and the world of international trade contains many treaties and agreements which contain ISDS mechanisms.
The provisions of ISDS mechanisms are that the laws of sovereign governments can be challenged by a corporation that wishes to, for example, exploit an asset in a country, but the asset is protected by that nation’s law, the corporation can then sue the nation for the earnings it has been denied by this law. This would then be a dispute to be settled, and the matter would be decided upon by a supranational court of corporate lawyers, sitting in secret; their decision would be final, with no appeal.
Any which way you can imagine a corporate lawyer imagining challenging someone’s sovereign national laws, will ensue; and their arbiters will be corporate lawyers. It’s quite a development in the annals of civilisation and democracy. It is an audacious coup.
The Corporate Person has steadily eroded democracy until they are now seemingly beyond anyone’s control. The final push is to take away people’s right of self-determination, subordinate the political rights of human persons to the rights of corporate persons. It’s breathtaking – we had no idea, of course. An offshore secret court of corporate lawyers . . . it tastes like a new kind of fascism.
While all these other staggering things are going on in the news, our governments are quietly planning to sign our sovereignty away to supranational corporate courts, sitting in secret. We’re not making this up.
In the UK, huge arguments have been raging at times about sovereign law and self-determination, but none of these impassioned arguments ever mentions this, not a dicky bird.
As we were writing, there did seem to be some awareness of this spreading. Lee Williams sums up well in The Independent. Referring to these ISDS courts, he says:
There are around 500 similar cases of businesses versus nations going on around the world at the moment and they are all taking place before ‘arbitration tribunals’ made up of corporate lawyers appointed on an ad hoc basis, which according to War on Want’s John Hilary, are “little more than kangaroo courts” with “a vested interest in ruling in favour of business.
Kangaroo courts, in secret session, of corporate lawyers making judgments about the rights of businesses and of people and nations. Final word, no appeal.
That the development of the corporate personality and its rights have now reached here . . . is chilling to the bone. If this happens, there won't even be a mirage of self-determination left. Democracy, however much that has ever been, forget it! The provisions of ISDS give corporations power over national laws; around the world corporations have been already suing governments over their environmental or labour protection laws, mostly little countries, but even Germany are being sued by an energy giant for changing their policy on nuclear energy.
As Lee Williams says:
Here we see a public health policy put into place by a democratically elected government being threatened by an energy giant because of a potential loss of profit. Nothing could be more cynically anti-democratic.
David Martin explains about the clause about investor-state dispute settlement in this article.
It is expected (as George Monbiot has pointed out) that the European commission will seek to include in the deal a mechanism known as the investor-state dispute settlement. This clause is intended to protect foreign investors from discrimination by governments. In practice it means that companies will have the right to sue foreign governments if they don't like the local legislation. The cases are heard in private. Governments often lose. Millions of pounds, dollars and euros have been paid to private companies when a secret panel of arbitrators decides the government has overstepped the mark by legislating, say, to make generic drugs more widely available or to stop tobacco companies aggressively marketing to children.
In the Wikipedia article it says here that an agreement would:
Minimise the diverse state regulations in governing the conditions under which investments by foreign corporations could take place. (In this connection, the agreement embodied acceptance of a compliance regime under which liberalization must proceed forward with no ability to be wound back — the so-called ratchet effect. This would be enforced by so-called rollback and standstill provisions, to ensure that investors would have access to markets. These provisions required nations to eliminate regulations that violated MAI provisions — either immediately or over a set period of time — and to refrain from passing any such laws in the future.)
Corporations want to make it illegal, forever, for anyone to ever stand in their way again. They want a law that outlaws certain laws. This is the final push. They want a ratchet action, that any advance in their liberty can never be reversed. There will be no consideration on Earth other than their freedom. Liberalization must proceed forward with no ability to be wound back.
There’s really not enough people talking about this, let alone doing anything. The public lobbying organisations like 38 Degrees and Change.org have done a lot to spread awareness. More from George Monbiot, who has been, as always, digging through it all:
There’s not much of a sense that even Parliament knows what’s going on here – (the Green Party excepted) - which we’re still naïve enough to feel surprised about. So, that’s all you need to do to take over a nation’s sovereignty, write a long complicated thousand page document, and write the key point on page 999. Are we really falling for that one? Will we give sovereignty of all of our countries away for failing to read the small print? Is it really like this? It’s so hard to understand how this can happen in our world. Something fundamental has changed, has been taken, and people haven’t noticed.
Monbiot notes in the article:
No longer able to keep this process quiet, the European commission has instead devised a strategy for lying to us. A few days ago an internal document was leaked. This reveals that a "dedicated communications operation" is being "co-ordinated across the commission". It involves, to use the commission's chilling phrase, the "management of stakeholders, social media and transparency". Managing transparency should be adopted as its motto.
Managing transparency, indeed. It’s not hard to see how this is shaping, it’s becoming bald; in the world to come, the citizens of the world are to be managed. And what a suite of technologies are developing to manage that.
When these kind of measures are in place, secret courts that trump national assemblies, the journey will be complete for the corporate person, the road that’s led from the founding of the East India Company in 1600, through the 1844 Joint Stock Companies Act and all the other companies acts and court judgments everywhere, treaties and agreements, generations of corporate lawyers snipping away at every tiny tether along the way, one by one removed in thousands of legal actions, relentless crossing of political palms with silver, and gold, until the final pinnacle, the corporate person will stand free; freed from the cumbersome considerations of the natural persons. A kind of abstract tyranny will be in place, human society in thrall to an algorithm which it let loose and lost the meaning of.
Some people think of a day that artificial intelligence will usurp the human person, and not so many saw that the abstract corporate person would achieve this first.
We apologise for the somewhat florid prose employed around here, and all the repetition, but it seems called for. The plan would seem to be to end forever all that nonsense about human personhoods determining their lives on Earth. Put a lock on it. Put a lock on the future. Make it illegal to pass any law in the future that would change the law. The decision is final, there is no appeal. There is no going back.
It’s all been done in the name of freedom, but we have mostly failed to notice which person’s freedom was being hailed.
This is the era of end game Capitalism. Here was a depressing piece of news, such things have long ceased to be surprising.
Swedinburgh posted this strong comment afterwards:
Amazingly, this article doesn't even mention CETA - the "Comprehensive Economic and Trade Agreement" between the the EU and Canada - a sort of dress-rehearsal for TTIP - that's just been signed off after years of behind-closed-doors negotiation, and part of the reason for this stupid climbdown by European regulators.
This, people, is the kind of thing we can expect more of if TTIP is signed off: reduction of standards and regulations to the lowest common denominator between US and EU, and then relentless pressure and endless lawsuits by corporations to force them even lower in both jurisdictions.
And the omission of CETA from this report is symptomatic of the dereliction of duty by journalists to give the full picture on these damnable "free trade" stitch-ups.
That banks and corporations can’t help themselves in seeking complete power over the whole of the world and human existence is not a crazy conspiracy theory, there’s definitely something in it.
It was heartening to see how opposition was mobilised by people; but the process continues. There’s no doubt, a coup is being planned here. People around the world are paying heavy penalties for their country’s involvement in trade deals like this.
The idea of ISDN has been in the world for a while. A West German business group in the late 50s proposed a scheme to protect their foreign investments, as new nations were being freed from colonial administration. The Deutsche Bank chairman, Hermann Abs, hailed the plan as an international Magna Carta for private investors, and perhaps very apt he should have called it that, as it developed into an instrument for robbing common wealth, and further legitimised the legal status of the corporate baron.
The World Bank picked the idea up in the 60s, seeing in it a measure which would help emerging poor countries to attract investment and push development on. And in their annual meeting, in Tokyo in 1964, they proposed setting up the mechanism for settling cases between investors and countries. Straight away some countries could see the potential threat to their sovereignty and voted against the measure. A group of 21 voted against the motion, but it passed and was implemented. Andreas Lowenfeld, an eminent legal professor involved in early discussions said:
I believe this was the first time that a major resolution of the World Bank had been pressed forward with so much opposition.
The institution which grew out of this was the International Centre for the Settlement of Investment Disputes (ICSID) in Washington, and investor-state cases are also judged upon in London, the Hague, Paris, and Hong Kong.
By now there are some 3,000 investment treaties and free trade agreements in the world that countries have signed up to, with ISDN provisions sewn into them. And since 2000, with predatory capitalism ramping up another gear, more than half of the world’s countries have been sued in these courts. There are about 500 cases before the ICSID process, with around a new one every week coming in.
Vast sums running to billions are awarded, so much so that a specialist financial sector has grown around developing the activity, advising companies how to exploit the situation presented. Corporate ISDS actions brought against countries are now seen as an asset class in themselves to secure loans against. There is plenty of funding available for companies bringing these claims, and clearly there’s a lot of confidence the actions will succeed.
So real is this hazard that corporations have been finding that they can get their way in countries with the mere threat of an ISDS action. Governments are under pressure when considering environmental and social protections, because companies claim not only to recover money they have invested, but for profits they claim they would have made in the future. The claims corporations make are getting bigger and bigger.
About a third of cases heard at the ICSID result in settlements, with many of the details protected by the corporate person’s right to privacy and commercial confidentiality. For a small country to lose a case like this is calamitous and really costs the people a lot in terms of their long hoped for development. If they lose, they have to pay, or assets are subject to seizure. This is the law almost everywhere.
The people of El Salvador have had their run-ins with this law, and here there is an active movement to keep their minerals in the ground and stop poisoning their country, they want to put their lives before mining interests. They have a heavy claim against them at present, which is seen as a test of El Salvador’s sovereignty and a test of the question of whether corporations, able to wage asymmetric financial war against small countries, can force governments to tailor its laws to suit their interests, and uphold their right to extract whatever wealth they wish to extract from that country at whatever cost.
But El Salvador, of course, it’s just another story about exploitation and extortion from a Third World country, there’s nothing new in such a story. So, with some irony, relished by some, it was a quite a shock when a Swedish energy corporation started suing Germany. For decades, German companies have sued countries right around the world but now their own environmental regulations, their desire to protect the fish in the Elbe river, were impinging on the profits of this dirty great coal-fired power station owned by Vattenfall, who now wanted €1.4 bn in compensation.
Vattenfall won a settlement, and environmental regulations were eased considerably, so much so that the European Commission has now brought action against Germany at the European Court of Justice, that they are violating EU environmental law and more needed to be done to protect fish, including migrating salmon. When you sign so many treaties and agreements you have to be careful they don’t contradict each other, that’s where lawyers come in.
The following year, like Vikings coming for their Danegeld, Vattenfall came back again, with a massive claim against Germany to compensate them for Germany’s decision to move on from nuclear power. It remains to be seen, or probably never wholly seen, what this will cost the German people.
Countries are now trying to get out of these deals. That has been made very hard to do, of course. International trade deals tend to have sunset clauses built into them, so they remain in force even if a treaty is scrapped, for maybe another 20 years.
Despite persistent lobbying for an open and public review, ISDS remains World Bank policy, for the original high aim of promoting poor countries’ ability to attract investment. But there’s no evidence that it does this.
When the South African government saw they needed to extricate themselves from various trade agreements they were in, they conducted a study to determine whether these treaties they were in actually did promote external investment, and they found no such pattern, noting significant investment they’re received from countries where there were no such treaties, and noting also investment flows in the world generally. Brazil seem to have seen through it, and have never signed an agreement with anyone that included ISDS, and easily attracts investment.
If the TTIP were to pass with the ISDN element, this would really cement its place in this shadowy web of international agreement that scarcely any of us – seemingly including the political class - were aware was developing, and yet which has such fundamental effects, stealing the right of people to make their own laws in their own countries; as fundamental as that.
TransAtlantic adoption of ISDS measures would set them in concrete and make them extremely difficult to challenge in the future. The measures would be made very difficult to roll back, they would be ratcheted into place.
The historic resistance to the tightening of this legal noose on nations has been conducted mostly by NGOs. This is the front line for the natural persons of the world in a global struggle with the corporate person.