Corporate Courts are Endangering Our Efforts for Long-lasting Change

Posted October 12, 2016 by Andrea Sosa

Photo Credit: TNI

Remember TransCanada? You may know them as the corporation that championed the construction of the Keystone XL pipeline, which never came to be as a result of the work of thousands of grassroots organizers and environmentalists. These folks put their bodies on the line to block the construction of a 1,179 mile crude oil pipeline that would have crossed the continental U.S from North to South. Those efforts were a major win for the progressive movement – it was a significant step in ensuring a clean environment for hundreds of communities and protecting tribal homelands.

Recently, TransCanada filed a lawsuit against the U.S government, claiming that failure to approve the Keystone XL pipeline violates the corporation’s rights to market access and non-discrimination as a foreign investor, making them lose a ton of money. Now, they are demanding $15 billion dollars in compensation from U.S taxpayers in redress.

How is this possible? Well, TransCanada is invoking something called the Investor State Dispute Settlement (ISDS) provision of the North American Free Trade Agreement (NAFTA), which allows foreign investors to sue host governments for putting policies in place that could potentially harm corporate profits. This essentially means that the work of thousands of organizers and environmentalists could potentially be rolled back in the name of corporate greed. What’s more — there’s very little we can do to stop it.

ISDS became a hot topic of discussion as a result of its inclusion in the proposed TransPacific Partnership (TPP), a global trade deal between twelve countries championed by the Obama administration. Yet, ISDS has been undermining democracy, government transparency, and progressive regulation policy for decades; it’s been included in over 3,000 international treaties since 1959, in fact.
Here’s the scary part. The lawsuits under this provision are handled through international arbitration, meaning that they aren’t handled in open courtrooms.

Instead, these cases are decided by special ‘corporate courts’ convened anywhere in the world. Instead of judges, a small panel of international experts is selected to rule on the issues at stake. The members of these panels are often high-ranking lawyers at major international firms, exactly the same folks who try cases before these panels. In practice, then, international arbitration constitutes an insular, corporate-driven decision-making process outside of the control of individual nation-states. So, in the case of the Keystone XL pipeline, the use of international arbitration has real, tangible effects; there is now no courtroom that environmentalists can protest outside of and no way for their voices to be heard in the process.

As you can imagine, then, ISDS has been used to undermine the health of communities across the globe and favor corporate interests over the voices of organizers and activists everywhere. Let’s walk through several examples. For instance, Egypt has been sued by a French transportation company after raising the minimum wage; Uruguay and Australia were sued by a cigarette corporation for implementing plain packaging that would highlight the health risks associated with smoking; Germany was sued by a Swedish corporation over its decision to phase out nuclear power; and the list goes on.

Yet, the most problematic part of ISDS is that it makes communities affected by structural violence around the world increasingly vulnerable — silencing them and privileging the voices, opinions, and needs of the ultra-rich. These communities build power by organizing around issues that directly affect them, taking to the streets and speaking their truth to power. ISDS, meanwhile, creates a system where the public good — and really public opinion — is written completely out of the equation.

As young people engaged in efforts to create positive change, we must be aware of the affront that ISDS presents to the wellbeing of our communities, both in the U.S. and around the world. Long-lasting change cannot happen when institutions like ISDS exist to roll back our efforts. In the face of ever more powerful corporations emboldened by ISDS, we must think creatively about solutions to ensure that the change we want to see in our communities is both sustainable and permanent.

As Young People For, we have taken on this responsibility by further exploring how young people can become involved in conversations about what justice for our communities should look like. As part of our Courts Matter Initiative, we are engaging young people from around the country to analyze and critique the judicial system. We want to explore how we can approach the courts as a site of organizing and a tool for creating systemic change. Through this work, we seek to unleash the power of diverse voices through courts activism. We are learning about where our voices are most effective and are exploring what justice should look like in this country; as we continue this work, we know one thing for sure, it does not look like ISDS.