TPP: Why We Can Say We Are Being Mugged

Nitin Sethi

Nitin Sethi

Corporations are pushing their political partners to enshrine in ‘free trade’ agreements the rule that any government that acts, even with no intention to do anything other than heed the voice of its own people and to protect them or their environment, to interfere with imaginary future profits of those corporations shall become liable to prosecution – via a tribunal of unelected, unknown lawyers whose deliberations will be kept secret. They have had much success but clearly they feel that the measures that are in place can be even more extreme, like the weather.

Eli Lilly

Meanwhile, We learned in recent days that the US government has devised a plan to avoid the inevitable and reasonable effort by victim nations (without exception, ‘developing’ nations) in the climate change reality to get redress from developed country governments that knew, and publicly acknowledged they knew, about the damage that they would cause if they failed to act to stem the greenhouse gas emissions that are responsible for deadly climate change. They knew about the damage that their private sector friends were causing (everywhere but mainly in developing and island nations) and would cause if they continued to do business as usual and they offered to deal, responsibly, with that. And then they didn’t, which is why Nitin Sethi now refers to the position taken by developed countries’ climate negotiators at COP 19 as one of ‘bad faith’. They’ve demonstrated such bad faith. There’s nothing to guess at here. To get an idea of the disdain that elites and their spokespersons feel for any who would act, or seek to encourage them to act, to slow down on business that further enriches the rich and privileged at the expense of everyone and the planet, Check out (in the video at the bottom of the post) the way Amy Goodman’s question to U.S. envoy Todd Stern, a pig, was received. He’s clearly in the business of making the wrong people happy and that is ‘not’ good.

From “As Environmentalists Walk Out Of UN Talks, Top UN Envoy Says No To Reparations For Climate Damage” on Democracy Now, the following:

AMY GOODMAN: Nitin Sethi, people are talking here, “good COP, bad COP.” You know, this is the Conference of Parties. That’s what the summit is called. Is this a total failure in Warsaw? I mean, we’re not at the end of it. It’s supposed to end today, Friday; some are saying it’s going ’til Saturday.

NITIN SETHI: I wouldn’t say it’s a total failure, but there is a real bad smell about it, because, I would say, in the previous years we’ve had negotiations built on lack of trust. This year we’ve got negotiation built on bad faith, because people in countries are backing off from what they agreed to in the previous three or four years. And they’re doing it pretty openly. It’s not as if they’re hiding the idea that we will not agree to what we agreed to last years. Take the case of finance, where countries said, “We’ll put up”—developed countries will put up—

Corporatocracy isn’t about fairness or a system of rules that conduce to social harmony and a protected environment that all depend on for life. Corporatocracy is insane. But that’s old news. Remember the awesome, if somewhat long and dry, documentary by Mark Achbar, Jennifer Abbott and Joel Bakan called “The Corporation”? Corporations are psychopathic and believers in inequality, including those who have high positions in companies, are okay with that. What does that make them?

The lunatics who feed and worship the wild beast of corporatocracy are something else. And they are everywhere. And they are in positions of power – because they strategically break (written and unwritten) rules that they have previously agreed to. Our politicians, mostly, serve power. They’re gangsters, in fact. They certainly aren’t principled. You can’t be a rule-breaker ‘and’ principled. Obama has betrayed so many of his promises, books have been written about it. Notes the Guardian’s Dan Gillmor:

Among the many betrayals of the Obama administration is its overall treatment of what many people refer to as “intellectual property” – the idea that ideas themselves and digital goods and services are exactly like physical property, and that therefore the law should treat them the same way. This corporatist stance defies both reality and the American Constitution, which expressly called for creators to have rights for limited periods, the goal of which was to promote inventive progress and the arts.

In the years 2007 and 2008, candidate Obama indicated that he’d take a more nuanced view than the absolutist one from Hollywood and other interests that work relentlessly for total control over this increasingly vital part of our economy and lives. But no clearer demonstration of the real White House view is offered than a just-leaked draft of an international treaty that would, as many had feared, create draconian new rights for corporate “owners” and mean vastly fewer rights for the rest of us.

I’m talking about the appalling Trans-Pacific Partnership agreement, a partial draft of which WikiLeaks has just released. This treaty has been negotiated in secret meetings dominated by governments and corporations. You and I have been systematically excluded, and once you learn what they’re doing, you can see why.

Here in Canada, the Right has ruled for a long time. The undemocratic electoral system, and other institutions, like the corporate-owned media, have ensured that only corporatists make decisions affecting not only themselves but everyone. Take our (Canadian) employment insurance system, which used to be called unemployment insurance. The name doesn’t matter. The content of the program matters. Insurance is okay for corporations and special interests. When it benefits them, it’s called capitalism, even if it’s socialism. The people are forced to bail out banks, for example. Not because the banks have hit some bumps in the manmade, imperfect economy, but usually due to unethical and outright criminal behavior. And you never see them go to jail. They are hit with fines that for them are merely the cost of doing business. But when regular people, who often work hard, physically, so that everyone can have a decent standard of living, run into bad luck in the imperfect economy, they can hardly collect their unemployment insurance. For wanting a sane, robust safety net that will see them get through difficult times which they are not responsible for (but which are usually the result of decisions by greedy capitalists), they are slandered and kicked by the Right in power and rightists supporting power. The people are called socialists when they look to their governments for anything and they are told to stand on their own two feet rather than run to the nanny state. When the people want what they deserve and what they have a reasonable expectation of having, after paying for the program/insurance they seek to take advantage of, they are accused of having a sense of entitlement and wrong priorities.

“Even before [Loyd] Axworthy’s ill-fated Green Paper made its way onto the political agenda, the C.D. Howe Institute had already set the terms of the debate for social policy reform with the release of its report on Social Canada in the Millenium. As the leading business think tank in official policy-making circles, the Howe had commissioned Tom Courchene of Queen’s University to prepare this report in 1994 as an update on his 1989 report for the Institute on Social Policy in the 1990s. What Courchene did, in effect, was to outline a platform of what big business wanted to see in terms of Canada’s social security system.

“That platform included… restricting UI benefits by doubling or tripling both the qualifying period and the work period as preconditions; and replacing the minimum wage to be paid by all employers with a system of public subsidies to top up wages where necessary.

“To a remarkable degree, Axworthy’s Green Paper fell in line with the business agenda for social security reform outlined by the Howe…

“…much of Axworthy’s proposals focused on changes in UI. Drawing upon a recent OECD study on jobs, the Green Paper concluded that Canada’s UI program was “too generous” and was “destroying the incentive to work.” The objective, as the OECD study urged, was to get the unemployed to “price themselves into jobs” by compelling them to accept lower wages. In turn, this meant getting rid of certain market “rigidities” such as “generous UI benefits” and “high minimum wage” laws…

“…But it was Paul Martin’s Canada Health and Social Transfer (CHST) in his 1995 budget that engineered the real “sweeping reforms.”

“…In 1989, due to mounting pressure from a consortium of U.S. corporations which had targeted Canada’s UI program as an “unfair trade subsidy” under the new free trade agreement, the Mulroney government withdrew as a major UI funding partner and proceeded to radically overhaul Canada’s UI program. By the time the Chretien Liberals took over, Canada’s UI had been scaled back in line with the inferior American UI program.

“While this satisfies the demand of big business, the social costs are staggering.” – pages 92-94 of “Silent Coup – Confronting The Big Business Takeover Of Canada,” by Tony Clarke

Silent Coup

Here’s a couple ways corporations get insurance. One way involves simply taking it from the people. The people, normally, collectively problem solve and build. And they do that through governments of and by and for the people, namely ‘all’ the people, including capitalists. But that’s not good enough for believers in inequality. They have systematically, since the 1970s, captured and re-designed governments everywhere. And they’ve captured most institutions – and the Liberal class – including the judiciary. With the rule-making tool of governments and the captured judiciary to back up decisions that legislators make, How can corporatists fail? The other way corporations enjoy protection from any who would challenge their exploitative ways is via secrecy. They simply do what they do, to the extent that they are able, behind closed doors.

“The Trilateralists were initially brought together in 1973 by David Rockefeller, then chairman of Chase Manhattan Bank, and Columbia University professor Zbigniew Brzeninski, who later became national security advisor under U.S. President Jimmy Carter…

“Throughout the 1970s, the Trilateralists developed a common agenda for restructuring the global economy and nation states. This agenda, says UBC sociologist Patricia Marchak, was based on two strategic objectives. First, in order to create conditions required for the restructuring of national economies in the global marketplace, the internal relationships between governments and peoples had to be completely reorganized. For the Trilateralists, this meant strengthening the [interfering, hostile] hand of governments relative to citizens’ movements and pubic interest groups. Second, in order to ensure greater freedom for the movement of transnational capital, changes were required in the international structures of nation states. In particular, the international monetary and trading system needed to be restructured to accommodate global capital. On both fronts, the common obstacle that had to be dismantled was the [more responsive, to the people] Keynesian model of the nation state and the international economy.” -pages 44 & 45 of “Silent Coup – Confronting The Big Business Takeover Of Canada,” by Tony Clarke. Of course, implicit in the perverting of governments that would make them less democratic and more beastly is the corrupting of individual politicians who would be the ‘hands on’ subverters of democracy. All bases were covered and all major political parties were captured. The people would be left with formal, or fake, democracy, a situation, as Chomsky notes, that poses no threat to power and privilege. Indeed, It’s the preferred route for dominant, western elites.

“The political and social history of Western democracies records all sorts of efforts to ensure that the formal mechanisms are little more than wheels spinning idly. The goal is to eliminate public meddling in policy formation. That has been largely achieved in the United States, where there is little in the way of political organizations, functioning unions, media independent of the corporate oligopoly, or other popular structures that might also offer people a means to gain information, clarify and develop their ideas, put them forth in the public arena, and work to realize them. As long as each individual is facing the television tube alone, formal freedom poses no threat to privilege.

“One major step towards barring the annoying public from serious affairs is to reduce elections to the choice of symbolic figures, like the flag, or the Queen of England – who, after all, opens Parliament by reading the government’s political program, though no one asks whether she believes it, or even understands it. If elections become a matter of selecting the Queen for the next four years, then we will have come a long way towards resolving the tension inherent in a free society in which power over investment and other crucial decisions – hence the political and ideological systems as well- is highly concentrated in private hands.

“For such measures of deterring democracy to succeed, the indoctrination system must perform its tasks properly, investing the leader with majesty and authority and manufacturing the illusions necessary to keep the public in thrall – or at least, otherwise occupied…” -page 76 of “Deterring Democracy,” by Noam Chomsky

Free trade deals, having little to do with actual free trade, are now routinely designed by corporations and politicians behind closed doors. That’s certainly the case with the huge Trans Pacific Partnership free trade deal, with some 600 industry ‘advisors’ hammering out the details away from prying (entitled) eyes. And it’s doubly the case when you consider that within these free trade deals lies an utterly undemocratic ISDS, which stands for Investor-State Dispute Settlement. When governments (the State) try to pass laws that the people want and need, those are seen by corporations as unacceptable if they hinder, or might hinder, profit flows. Those ISDS tribunals, consisting of unknown corporatist lawyers who deliberate entirely in secret, were always offensive. But with TPP, they are even more offensive.

From Public Citizen’s Eyes On Trade website (“Fast Track: New Report Proves Difficulty of Defending the Indefensible”), the following:

The original Fast Track gave a club of official corporate trade “advisors” privileged access to trade texts and negotiators. This trade advisory system, established in Nixon’s initial Fast Track law, remains in effect. Today over 600 official advisors, comprised mostly of corporate representatives, get access to FTA negotiating texts that are denied to the public. Third Way misleadingly states that these privileged advisors “run the gamut from advocacy groups—including the AFL-CIO, the Environmental Defense Fund, Oceana, Consumers Union, and the National Farmers Union—to large U.S. companies like Cargill, General Electric, and Kraft Food.” What they do not state is that “advocacy groups” constitute a tiny portion of the advisors while about nine out of ten advisors explicitly represent industry. In fact, General Electric alone has twice as many representatives in the advisory system as all consumer advocacy groups combined.

The Electronic Freedom Frontier explains the ISDS issue clearly in “Another Reason to Hate TPP: It Gives Big Content New Tools to Undermine Sane Digital Rights Policies”:

The policy was originally intended to ensure that investments in developing countries were not illegally expropriated by “rogue” governments, thereby encouraging foreign investment. But what began as a remedy to a specific problem has since been co-opted to serve very different purposes. Under investor-state, if a regulation gets in the way of a foreign investor’s ability to profit from its investment, the investor can sue a country for monetary damages based on both alleged lost profits and “expected future profits.” There are no monetary limits to the potential award.

Apparently a country’s own courts can’t be trusted to administer this kind of lawsuit, so investor-state also requires the creation of a new court. It would be comprised of three private-sector attorneys who take turns being judge and/or corporate advocate.

Even if this kangaroo court ruled in favor of the defendant nation, court costs alone would scare countries from adopting (or enforcing) pro-user policies where they might potentially inhibit investor profits. The investor-state tribunal bills its time by the day and decides for itself how many days to work, so it can rack up as many days of work [as] they want. Given this system, it’s then no surprise that current investor-state court costs average about 8 million dollars per case. So even if it wins, the country has to pay those court fees, the lawyer fees, plus compound interest. That’s money that would doubtless be better spent elsewhere.

The process is absurd as well. Once a decision has been issued, there is no way to appeal it. That’s right, if this court rules that the nation is at fault and has to pay huge fees that could even bankrupt a government, there’s no other way for the country to overturn that decision.

The supposed “cause” of these lost “investments” can include environmental standards, labor standards, and yes, even intellectual property rules. So far, countries have been forced to shell out almost half a billion dollars thanks to similar provisions in other trade agreements. The cases have mostly dealt with environmental protection regulations (challenged by oil companies), or pharmaceutical companies (complaining about regulations invalidating their medicine patents).

Do corporatists have attitude? Eli Lilly, notes the EFF in the above article, sued Canada recently for imagined lost profits. Eli Lilly is asking for $500 million to compensate it for lost profits due to cancelled patents (for the drugs Strattera and Zyprexa, which Canadian courts found failed to live up to the maker’s ‘inventive promise’ and exhibited ‘inutility’). Regarding the ‘promise rule’; You get to get into a market with your product based on it’s performance according to your promises about it. (And even if lost profits aren’t imagined, Should they trump all other considerations?)

If our Rightwing government, regardless what a court might decide, allows Lilly to get away with its ploy, it won’t be the politicians of the State who pay. It will be the citizens of Canada who pay. But what’s new? These are not people’s Parties, governments, politicians and courts. Corporations will use our governments and courts to rob us, any way they can. That’s what you do with captured governments and judges if you are mafia capitalists.

All of that occurred to me when I was watching a recent episode of Democracy Now and learned about a leaked US government memo that revealed politicians’ and corporations’ worry about having to answer for the profound loss, economic and more, to countries through damage done to the environment caused by global warming that corporations and their political partners acknowledged, agreed had to be dealt with, promised to deal with and didn’t do anything about. Can we conclude that these CEOs, their lobbyists and political partners don’t fully grasp the idea of reparations, given how much thought they give to codifying in law penalties for any infringement for any reason on their profit-making activity? No.

That’s why we know that we are being mugged by those same corporations and governments via the TPP and similar ‘free trade’ agreements.

From Stuart Trew’s (Council of Canadians) article titled “Eli Lilly’s NAFTA lawsuit should prompt rethink of investor “rights” deals,” the following:

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The company claims that this invalidation of its patent, based on a legal “promise doctrine” in Canadian courts (more on this below), violates its rights in NAFTA Articles 1110 (expropriation and compensation), 1105 (minimum standards of treatment), and 1102 (national treatment). On June 13 this year, Lilly revised its claim to include the invalidation of a second patent, this one for the anti-psychotic drug Zyprexa, which consequently lost its patent in the United States and Canada in 2011. Another federal court had invalidated the Zyprexa patent two years before it was meant to expire. Subsequent appeal courts overturned part of that decision but maintained that the Zyprexa patent was invalid on grounds of inutility since the product did not live up to Lilly’s promise that it would be markedly superior to existing medication. Lilly’s combined NAFTA claim says Canada owes the company $500 million in compensation for losing both patents.

This investor-state dispute has drawn international attention and condemnation. As the U.S. corporate and government watchdog Public Citizen explains in a primer on the case, “Eli Lilly’s move marks the first attempt by a patent-holding pharmaceutical corporation to use U.S. ‘trade’ agreement investor privileges as a tool to push for greater monopoly patent protections, which increase the cost of medicines for consumers and governments.” The company is trying to circumvent and subvert flexibilities in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and in NAFTA giving countries room to develop patent regimes that suit their social and economic needs. In its NAFTA claim, Eli Lilly interprets these international agreements, as well as the Patent Cooperation Treaty, in an extremely narrow way supportive of stricter U.S.- and EU-style patent law. It is using investor-state arbitration in NAFTA to try to enforce that interpretation onto another country – Canada.

The result of a NAFTA win for Eli Lilly, says Public Citizen, “could expose Canada to a slew of investor-state attacks from other drug companies that have had patents invalidated because their medicines have not met the promises they made to initially obtain patents.” A victory or settlement for Lilly might also embolden pharmaceutical companies to unleash a wave of challenges to patent decisions in other countries which have bilateral investment treaties with the United States or European Union.

The fate of the case is perhaps even more important for Canada because the Harper government is engaged in trade and investment negotiations with the European Union and in the Trans-Pacific Partnership (TPP) that promise to expand monopoly protections for brand name pharmaceutical companies. Leaked chapters from the Comprehensive Economic and Trade Agreement (CETA) negotiations with the EU show that Canada is attempting to exempt WTO-consistent legal decisions like the invalidation of Strattera and Zyprexa from investment arbitration but the EU is resisting this.


Lilly’s NAFTA challenge—one of eight current disputes against Canada worth at least $2.5 billion—takes direct aim at Canada’s “promise doctrine.” In very basic terms, Canadian courts sometimes look beyond the Patent Act when deciding whether a patented compound or product can be said to be “useful” – one of the hurdles a company must pass to be granted a patent. Courts have linked utility to the promises a firm makes, at the time of filing for a patent, about how the product will work and how it is different from existing drugs. Lilly says in its first NAFTA notice of intent that, “This nonstatutory ‘promise doctrine’ is not applied in any other jurisdiction in the world,” and that it “contravenes TRIPS Article 27(1) and NAFTA Article 1709(1) by imposing onerous and additional utility requirements that have had the effect of denying patent rights for inventions which meet the conditions precedent to patentability.”
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Nitin Sethi writing for The Hindu (and in choppy English) reports on the discovery of a US government memo not meant for public eyes. See “U.S. to oppose mechanism to fund climate change adaptation in poor nations.” Consider:

On the controversial issue of loss and damage, which has united the developing countries since last two years in demanding that developed countries pay compensation for the damage to life and property that cannot be avoided despite the best of adaptation and emission reduction efforts, the U.S. plans to not let the idea become a full fledged separate mechanism at Warsaw. The U.S. has previously very strongly opposed any separate mechanism on loss and damage that sets up a process of charging “compensation or reparation” on the developed world for their historic emissions. But it had to give in last year at the talks to permit the talks on such a mechanism start off. At Warsaw, the briefing paper shows, it plans to ensure that while the issue is called “Loss and Damage” it does not get a life of its own but is swallowed by the existing track which would ensure the issues of ‘liability’ and ‘compensation’ are thrown out.

The document says, “It’s our sense that the longer countries look at issues like compensation and liability, the more they will realise this isn’t productive avenue for the UNFCCC to go down.”

“We are strongly in favour of creating an institutional arrangement on loss and damage that is under the Convention’s adaptation track, rather than creating a third stream of action that’s separate from mitigation and adaptation,” it adds.

“The U.S. supports pragmatic approaches to address the substantive issues raised in loss and damage discussions and supports the establishment in Warsaw of a loss and damage ‘task force’ under the Adaptation committee of the UNFCCC. A central issue will be whether loss and damage continues to fall within adaptation or whether it becomes a separate, third pillar (alongside adaption and mitigation), which we believe would lead the UNFCCC to focus increasingly on blame and liability, which in turn would be counterproductive from the standpoint of public support for the convention,” it further reads.

“counterproductive from the standpoint of public support for” the unbridled pursuit of profits by long-time polluters in advanced nations is more like it.

From “Leaked Memo Reveals U.S. Plan to Oppose Helping Poor Nations Adapt to Climate Change” (Democracy Now, November 19, 2013, the following:

AMY GOODMAN: And talk about the significance. For people especially in the United States, this word, “loss and damage,” doesn’t have much meaning; it’s sort of U.N. speak. What does “loss and damage” mean? And then talk about what the document said.

NITIN SETHI: OK, let me try and unpack that for you. The two issues that have—we’ve been talking of for the last 20 years, one is how to reduce the emissions in the atmosphere so that we don’t reach a certain level of concentrations, that make sure temperatures also remain within certain limits. Now, while we do that, we still need to adapt to things that are changing in the atmosphere at the moment or changing in the climate at the moment, which is called adaptation. But because we’ve not done too much in the last 20 years on mitigation or reducing emissions, what’s happened is there’s enough damage happening at the moment that cannot be checked even if you adapt to your best possible capabilities. Countries are now coming and saying, “Because you’ve not acted to reduce emissions, we are being damaged, our houses are being lost, our livelihoods are being lost, people are dying.” And you need to be compensated for that. You need to be compensated for the lack of action over the last 20 years. And that’s what really loss and damage is about.

AMY GOODMAN: Can you talk about the crucial points in the document that most surprised you?

NITIN SETHI: I think three things were fascinating for what—how they portrayed the U.S., of what it was going to do publicly and how it was going to negotiate within the UNFCCC or this present meeting. The first thing was its position on how it would treat the issue of loss and damage. And it was very clear that they don’t think loss and damage should live, except beyond its name; the loss and damage issue should not have any concern about liability or compensation attached to it. So they came here with the agenda to defang this idea which has been—or an animal which has been up for the last two years. What they want to do is keep the name intact, but put it in a place in this entire conversation where there’s no relationship whatsoever to any kind of liability, legal responsibility issues in it.

The second thing I find interesting in this document was something they’ve said in other words, but here they kind of go very explicit and say, while every country will be able to put its own pledges about how much emissions they want to cut, nobody shall be able to ask them to do more or less. So, while we put it out, say, 2014 end—the U.S. actually says 2015 early—every country can put out a pledge saying, “This is the amount I want to do,” and then everyone can talk about it for six months, but nobody can really tell anyone to do more than that, which really means, in other words, if science says that you’re required to do more to ensure temperatures don’t go beyond critical levels, there’s nothing anyone can tell the country to do.

AMY GOODMAN: I want to read, actually, from this confidential document—


AMY GOODMAN: —that we have right now on loss and damage. The U.S. internal briefing paper reads, quote—and this is from John Kerry to the U.N.—the U.S. climate change team—the internal briefing paper reads, “As it was in last year’s meeting in Doha, the issue of Loss and Damage is likely to be one of the most contentious issues in Warsaw. Loss and Damage is an agenda item largely driven by the small islands, and more recently the least developed countries, seeking redress for climate damages from sea level rise, droughts, powerful storms and other adverse impacts. … A central issue will be whether loss and damage continues to fall within adaptation or whether it becomes a separate, third pillar … which we believe would lead the UNFCCC to focus increasingly on blame and liability, which in turn would be counterproductive.” Counterproductive, Nitin, for who?

NITIN SETHI: For the U.S. government, particularly, and other developed countries, because if you look at emissions from history, the accumulated emissions so far, a large percentage of that comes from the rich or the developed nations. So if someone goes to court tomorrow, or any legal redress system, and says, “Who is to blame for the typhoon that never happened before but has started to happen at a high level now?” it will primarily be the responsibility of developed countries to compensate these small, vulnerable countries. And that’s what U.S. government, I feel, is scared about, to enter a system where there is a legal compensation mechanism available for small, vulnerable countries, who otherwise don’t have voice in this large set-up.

AMY GOODMAN: Were you pressured not to release these documents?

NITIN SETHI: I could say that I had a long conversation with my friends in the U.S. delegation here. It took a while to convince them to talk about it.

AMY GOODMAN: Did they ask you not to reveal these confidential documents?

NITIN SETHI: I wouldn’t want to talk about this bit.

AMY GOODMAN: But you did reveal them.

NITIN SETHI: I did put them out. I quoted from them. They finally did make a statement, which didn’t end up saying anything about the document I had in hand. All they said was, “We’ll continue to work with the world to save climate change from happening,” and that was the end of it.

We can say that we the people are being mugged with the TPP because that is clearly the intention of the corporatocracy. Its intentions are revealed by its words, public and private, and its actions. We are going over a cliff with global warming and, absent God, we will not be able to prevent it because those who have the power to prevent it have made it abundantly clear that they have no intention of quitting destructive business as usual.

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