"...if TPPA goes through - medicine cost will rise, labour laws such as minimum wages and hiring of more locals would be challenged, along with any law that tries to cap profiteering for reasons of health, culture or the environment...."
Rather than experience more free trade and investments, the experts flown in by PKR gave an "alternative view" based on the experiences of countries already duped by such trade treaties.
Transnational Institute's Cecilia Olivet (left) told of an 'inner mafia' sitting on the same arbitration panels, hungry to take advantage of lopsided trade agreements.
She is now helping Uruguay and Ecuador to get free of these unjust trade deals.
"Just 15 arbitrators (individuals), nearly all from Europe, the US or Canada, have decided 55 percent of all known investment treaty-disputes," Olivet told lawyers and activists at a forum in Petaling Jaya last night.
Just three top law firms - Freshfields (UK), White & Case (US) and King & Spalding (US) - claim to have been involved in 130 investment treaty cases in 2011 alone, she said.
Lawyers get paid some US$3,000 (RM9,557) per day regardless of outcome. Added to that, the tribunal usually consists only of three arbitrators, and therefore is very open to manipulation.
It is such lucrative business that drives law firms to encourage investors to sue, exploiting badly drawn up treaties.
In the last decade, the number of lawsuits have risen by 100-fold and the sums demanded have soared from millions to billions.
In 2012 alone, there were 62 new cases, even though such suits are still fewer in South-East Asia, she said.
Narrow escape for M'sia, for now
In Malaysia, only two such cases have ever been filed by companies against the state but that's because the country hasn't opened up that possibility to US companies yet, Olivet said.
She pointed out that only Japan and New Zealand now have an option for the controversial Investor-State Dispute Settlement (ISDS) mechanism as part of their bilateral trade agreements with Malaysia.
But certainly, the ISDS is one of the key mechanisms in the TPPA, especially most desired by the US.
The TPPA partners are Malaysia, the US, Australia, Brunei, Canada, Chile, Japan, Mexico, New Zealand, Peru, Singapore and Vietnam.
A former trade negotiator for Bolivia and diplomat to the UN Pablo Solon (left) tells of how the Bolivian government was nearly "driven insane" by American firm Bechtel Corp which tried to extort US$100 million from one of the poorest countries in the world.
In 2000, Bolivia government withdrew a contract to privatise the water supply of Cochabamba after civil protests when water tariffs shot up. Bechtel called for World Bank international arbitrage to demand US$100 million compensation.
"This is insane, we said we wanted to everybody to know that they didn't invest US$100 million, they only spent six months here and they were asking for their profits for the next 30 years," Solon said. The case dragged on for five years.
Bolivia firm on tough stand
Solon explained that more companies would try this "lottery" scheme which puts state on the defensive, if trade treaties with ISDS expanded.
"If the state wins, they never receive any compensation... only they don't have to pay but foreign investors stand a chance to get compensation if they win," Solon said.
After that, Bolivia included in its new constitution that the mechanism of ISDS should not exist in any international treaty before renegotiating its bilateral deals.
Klang MP Charles Santiago (right) said that most disturbing fact of the TPPA is that the government has remained secretive about the deal, while admitting that it has not fully done a cost and benefit analysis. Santiago sits on the TPPA Parliamentary Caucus.
He added that in a latest parliamentary reply to whether the TPPA will impact labour rights in Malaysia, the government would only say that it was too early to tell since Malaysia has not conducted do any studies nor decided on what would be included in the agreement.
"This is not just the 11th hour, it's 11.45," Santiago said, believing that Malaysia is just a month away from signing the agreement. He also said that theTrade and Industry Ministry, which is heading the negotiations, probably thinks that it can get a good deal with concessions and carve out clauses.
Transnational Institute's Olivet, however, warns that however cleverly worded the agreements, lawsuits cannot be avoided.
Tobacco company Philip Morris is suing Uruguay, alleging that cigarette health warning labels restrict its sales, even though the government explicitly signed a trade agreement which indemnified such suits, she said.
Either way, loss guaranteed
And even if the government wins the case, it would often end up spending US$3 million to US$8 million defending themselves, she said.
"The bottom line is that with these trade treaties, tax payers are committing to pay compensation to foreign investors if arbitrators say that they should. It is a form of subsidy," York University law professor Gus Van Harten from Canada said.
"Treaties are a kind of vote of no confidence against local courts and allows foreign investors to forgo them."
Van Harten (right)warned especially of the clause in treaties that allow them to be applied retroactively, which means if government loses suits, it often has to pay corporate enormous sums for "loss" of profits even before the law came into effect.
And worst of all, the treaties do not always deliver the economic rewards they promise.
Van Harten said that many credible research organisations have cast doubt that true investors even care about such treaties. They only consider profits, he added.
Instead, if TPPA goes through - medicine cost will rise, labour laws such as minimum wages and hiring of more locals would be challenged, along with any law that tries to cap profiteering for reasons of health, culture or the environment. - Malaysiakini, 8/11/2013, TPPA equals holding nations to ransom, warn experts