The recent revelation that Arthur Cox will be acting for Japan Tobacco (JTI) in its threatened court action against the State to block plain cigarette packaging serves as a warning of the possible consequences of the Transatlantic Trade and Investment Partnership, or TTIP, coming into force. This supposed free trade agreement is currently being negotiated by the US and EU in almost complete secrecy, and more or less exclusively at the behest of large multi-national corporations and business lobbyists, who comprised 90% of the stakeholders consulted by the European Commission's trade department during its preparation for the TTIP negotiations.
TTIP contains a provision known as ISDS, or the Investor-State Dispute Settlement mechanism, which grants big business the right to challenge and even overturn democratically determined laws made by sovereign States and intended to protect the public interest and the environment. Whenever corporations find that laws in the area of public health, environmental or social protection interfere with their profits, they would be able to circumvent national and European courts at offshore tribunals to claim massive sums of money in compensation.
These tribunals themselves are little more than kangaroo courts, populated by industry-friendly corporate lawyers who have a vested interest in ruling in favour of business, and have already been used extensively by big business throughout the world, as the ISDS provision is included in many existing bilateral investment treaties. In fact, since the mid-1990s the number of claims against States has exploded, from a few dozen to more than 568 by the end of 2013.
Many of these cases have resulted in astronomical payouts footed by national taxpayers – in 2003, the Czech Republic had to compensate a media corporation with the equivalent of the country’s entire health budget (US$ 354 million); in 2012 Ecuador was ordered to pay Occidental Petroleum Corporation US$2.3 BILLION, the highest known damages to date, amounting to more than 2.5% of the country’s GDP. Legal costs themselves can also be substantial and are not always awarded to the winning party; for example, The Philippines government, spent US$58 million to defend two cases against German airport operator Fraport – the equivalent of the salaries of 12,500 teachers for 1 year.
Moreover, ISDS style investment arbitration is obscenely unfair – only States can be sued, not investors or businesses, even when they violate human rights!(ibid). And sometimes the submission of a case, or even just the threat of one, has been enough for legislation to be abandoned or watered down, as highlighted by the Canadian experience with NAFTA. Consequently, the inclusion of ISDS in TTIP would have a devastating 'chilling effect' on any future regulation.
Arthur Cox has a long history of representing the interests of large corporations. This has included assisting them in lowering their tax bill, while simultaneously receiving huge taxpayer-funded fees for services it provides to state agencies.
The fact that the same legal firm that advises both the HSE and the Child and Family Agency, TUSLA will be representing JTI in this case mirrors the hypocrisy of this government. At the same time that Health Minister Leo Varadkar is calling on Arthur Cox to sever its links with the tobacco industry, European Commissioner for Agriculture and Rural Development Phil Hogan is urging TTIP negotiators to “get on with it” and reach agreement on “less contentious issues” while just last October the Minister for Enterprise and Innovation, Richard Bruton, along with ministers from 13 other EU member states, signed a letter to European Commission President Jean-Claude Juncker actively calling for the inclusion of ISDS in the TTIP negotiations!
This leads to the absurd situation where the government is actively supporting an agreement which will undermine its own ability to legislate with respect to the nation’s health – not for the first time talking out of both sides of its mouth. It's clear this government does not have the best interests of the people at heart – subordinating them to the interests of international capital at the expense of health, welfare, rights, & the environment.
People Before Profit