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May 13, 2015 02:33 PM

Rep. Peter DeFazio wrote a letter to the editor published May 9 that talked about problems with the proposed Trans-Pacific Partnership. In that letter he referenced a letter sent Congress last week from legal experts. Here is the text of that letter:

Dear Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, and Minority Leader Pelosi:

We write out of grave concern about a document we have not been able to see. Although it has not been made available publicly, we understand that the Trans-Pacific Partnership (TPP) trade agreement currently being negotiated includes Investor-State Dispute Settlement (ISDS) provisions. ISDS allows foreign investors—and only foreign investors—to avoid the courts and instead to argue to a special, private tribunal that they believe certain government actions diminish the value of their investments.

Courts are central institutions in the rule of law. Americans have much to be proud of in the evolution of our court system, which has evolved over the centuries and now provides equal access for all persons. Courts enable the public to observe the processes of development of law and to watch impartial and accountable decision-makers render judgments.

We write because of our concern that what we know about ISDS does not match what courts can provide. Those advocating using this alternative in lieu of our court system bear the burden of demonstrating why such an exit is necessary, and how the alternate system will safeguard the ideals enshrined in our courts. Thus far, the proponents of ISDS have failed to meet that burden. Therefore, before any ISDS provisions are included in the TPP or any future agreements, including the Transatlantic Trade and Investment Partnership (TTIP), their content should be disclosed and their purposes vetted in public so that debate can be had about whether and if such provisions should be part of proposed treaties. Below, we detail the ways in which ISDS departs from the justice opportunities that U.S. courts provide.

Our legal system rests on the conviction that every individual, regardless of wealth or power, has an equal right to bring a case to court. To protect and uphold the rule of law, our ideals of fairness and justice must apply in all situations and equally to everyone. ISDS, in contrast, is a system built on differential access. ISDS provides a separate legal system available only to certain investors who are authorized to exit the American legal system. Only foreign investors may bring claims under ISDS provisions. This option is not offered to nations, domestic investors, or civil society groups alleging violations of treaty obligations. Under ISDS regimes, foreign investors alone are granted legal rights unavailable to others – freed from the rulings and procedures of domestic courts.

ISDS also risks undermining democratic norms because laws and regulations enacted by democratically-elected officials are put at risk in a process insulated from democratic input. Equal application of the law is another critically important hallmark of our legal system—one that is secured through the orderly development of law. Court decisions are subject to appeal, ensuring that conflicting lower court decisions are resolved by a higher authority. Judges also must follow legal precedent. The goal is uniform application of the law regardless of which judge or court hears a case. This law development allows people, entities, and nations alike to order their behavior according to well-established legal principles.

In contrast, ISDS does not build in the development of the law. An ISDS arbitral panel’s decision cannot be appealed to a court. The ISDS provisions of which we are aware provide only limited— private—review through a process called annulment that does not permit decisions to be set aside based even on a ―manifest error of law.‖1 Moreover, ISDS arbitrators, like other arbitrators, do not make law because their decisions have no precedential value, and ISDS arbitrators in turn are not obliged to follow precedent in reaching their own decisions.

None of the hallmarks of our court system would be possible without a fair and independent judiciary. Federal judges take an oath to uphold the Constitution and are nominated and confirmed by our democratically elected representatives. State judges likewise commit themselves to upholding the constitutional order. In contrast, ISDS arbitrators are not public servants but private arbitrators. In many cases, there is a revolving door between serving on ISDS arbitration panels and representing corporations bringing ISDS claims. Yet, although such a situation would seem to call for more—not less—oversight and accountability, ISDS arbitrators’ decisions are functionally unreviewable.

As noted at the outset, we have not been able to read the terms of the proposed ISDS chapters for the upcoming TPP and TTIP treaties. But what we know from the past gives us many grounds for concern. During the past few years, foreign investors have used ISDS to challenge a broad range of policies aimed at protecting the environment, improving public health and safety, and regulating industry. These challenges have been around the world, including under trade agreements to which the United States is a party. The publicly available information about these challenges raises serious questions as to whether the United States should be entering into more ISDS agreements with a broad array of nations.

Pharmaceutical giant Eli Lilly’s pending ISDS proceedings against Canada provide an example of how corporations have used ISDS to challenge a nation’s laws outside the courtroom. After a Canadian court invalidated one of Lilly’s patents, the company initiated ISDS proceedings against Canada under Chapter 11 of the North American Free Trade Agreement (NAFTA).2 In seeking $500 million (Canadian), Lilly has challenged as violative of NAFTA the standard the nation uses for granting patents.

Although ISDS tribunals are not empowered to order injunctive relief, the threat and expense of ISDS proceedings have forced nations to abandon important public policies. In the third ISDS proceeding brought under NAFTA, Ethyl Corporation brought an ISDS proceeding against Canada for $251 million for implementing a ban on a toxic gasoline additive. The proceeding took place not in a court, but before an arbitration panel of the International Centre for the Settlement of Investment Disputes (ICSID). After the arbitration panel rejected Canada’s argument that Ethyl lacked standing to bring the challenge, Canada settled the suit for $13 million. Moreover, Canada lifted the ban on the toxic additive as part of the settlement.3

1 Impregilo S.P.A. v Argentine Republic, ICSID Case No. ARB/07/17 (Annulment Proceeding), Jan. 24, 2014, at ¶ 132. http://www.italaw.com/sites/default/files/case-documents/italaw3044.pdf (―[T]here is a difference between a failure to apply the proper law and the misapplication of the applicable law, and that the latter does not constitute grounds for annulment, even if it is a ‘manifest error of law’ ...‖) (emphasis added).

2 Eli Lilly and Company v. The Government of Canada, Notice of Intent to Submit a Claim to Arbitration under NAFTA (Nov. 7, 2012). Available at:http://italaw.com/sites/default/files/case-documents/italaw1172.pdf.
3 Michelle Sforza & Mark Vallianatos, ―Ethyl Corporation v.s. Government of Canada: Now Investors Can Use NAFTA to Challenge Environmental Safeguards,‖available at http://www.citizen.org/trade/article_redirect.cfm?ID=6221.

It is particularly noteworthy that the three NAFTA countries are each in the top 11 most- challenged countries under the ISDS system. This high rate of challenge in our view has little to do with a rule of law deficit in the U.S. and Canada. Instead, it represents investors taking advantage of easy access to a special legal right available only to them in an alternate legal system.

ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve.

Proponents of ISDS have failed to explain why our legal system is inadequate to the task. For the reasons cited above, we urge you to uphold the best ideals of our legal system and ensure ISDS is excluded from upcoming trade agreements.


Judith Resnik
, Arthur Liman Professor of Law, Yale Law School

Cruz Reynoso
, Professor of Law Emeritus, University of California, Davis School of Law Former Associate Justice of the California Supreme Court

Honorable H. Lee Sarokin, 
Former United States Circuit Judge of the United States Court of Appeals for the Third Circuit

Joseph E. Stiglitz
, University Professor, Columbia University

Laurence H. Tribe
, Carl M. Loeb University Professor, Harvard Law School

cc: Ambassador Froman and Chairs & Ranking Members of Finance & Ways & Means Committees

Please note: Organizational affiliation for all signatories is included for identification purposes only; individuals represent only themselves, not the institutions where they are teaching or other organizations in which they are active.

May 6, 2015 11:51 AM

The Oregon Center for Public Policy this week takes a look at the state and federal mortage interest deduction, a tax break that benefits higher-income home owners. Should that money be better spent on education and social services in Oregon?

May 4, 2015 05:06 PM

Just heard a vigil will be held tomorrow (Tuesday) for Nepal earthquake victims. Here are the details as we know them:
• Location is the EMU Amphitheater on the UO campus from 7 to 8:30 pm (set up will be at 6 pm, take down from 8:30 to 9 pm).
• Speakers will include students and community members from Nepal, a Nepalese physician from Springfield who is leaving soon to assist with the medical relief effort, city of Eugene Sister City Committee members (Kathmandu and Eugene are sister cities), and possibly a UO student who was on Mount Everest when the earthquake hit (if she returns to Eugene in time).
• After the speakers are done, attendees will be invited to: a) light a candle, b) speak a word or two in condolence or share briefly, c) write a note or sign the event banner, d) donate to a Kathmandurelief.org and details on benefiting relief organization will be provided.
• Find more information at:

April 30, 2015 03:48 PM

May Day is a traditional day to celebrate workers and unions.

April 24, 2015 11:20 AM

Below is the written testimony on SB 941 submitted to the Oregon House Committee on Rules April 22 by Dan Gross,
 president of the Brady Campaign to Prevent Gun Violence in Washington, D.C.

Chair Hoyle and fellow House Rules committee members, I thank you for the opportunity to submit written testimony in support of this legislation to expand Brady background checks to cover all gun sales. On behalf of our Oregon chapters and members, the Brady Campaign to Prevent Gun Violence fully supports Senate Bill 941 to expand Brady background checks to prevent guns from getting into the hands of dangerous people, like felons, fugitives, and domestic abusers.


Along with this testimony, I am submitting a copy of the Brady Campaign’s latest report, which shows how effective Brady background checks have been in Oregon. Between checks conducted at federally licensed dealers, as mandated by the Brady Law passed by Congress in 1993, and with the added benefit in Oregon of background checks at gun shows, as mandated by the Citizen initiative that passed overwhelmingly in November 2000, tens of thousands of sales have been blocked to dangerous, prohibited purchasers. Undoubtedly, lives have been saved as a result. In 2013 alone, Brady background checks blocked 2,215 prohibited sales in Oregon; that’s an average of six every day.


But what our report also shows is that a new, significant issue has developed since the implementation of the Brady Law in 1994 and since Oregon closed the gun show loophole in 2000, and that is the emergence of the Internet and the ease with which criminals can now use it to buy guns. Today, online purchases represent a shockingly easy way for criminals to evade federal and state laws and buy guns without being stopped because of a Brady background check.


The Internet hosts the largest gun show on the planet – and it never closes. Armslist.com, one of the more popular sites, posts upwards of 70,000 gun advertisements at any given time, many of which can be purchased without a background check. It’s like Craigslist for guns. All a criminal needs is an email address and cash. A search of gun sales on Armslist.com in Oregon on April 13, 2015 resulted in 1,756 unlicensed seller-to-buyers advertisements that are not subject to Brady background checks.


A sale like this is documented on page eight of our report. It’s an actual advertisement on Armslist.com, posted on March 22, 2015 by an individual Oregon gun seller who advertises that his firearm is available with “no background check. Cash only.”


The corporate gun lobby will claim that criminals will always find a way to get guns, and if you pass a law requiring background checks you will only make it harder for law abiding citizens to buy guns. To be clear, that is complete and utter hogwash. First of all, background checks only prevent prohibited purchasers from buying guns – people who are already not allowed to own them. In essence, background checks are the greatest tool for enforcing the laws that already exist. And, according to the FBI, they take, on average, a mere 72 seconds to complete.


And just as importantly, background checks work. In the 21 years since the Brady Law has been implemented, 2.4 million sales have been blocked to felons, fugitives, domestic abusers and other prohibited, dangerous people. States that have expanded background checks to all gun sales, as Senate Bill 941 will do for Oregon, have seen an even greater benefit in the form of increased public safety and lives saved.


In fact, according to a recent study by Everytown for Gun Safety, states that have expanded background checks experience on average 46 percent fewer women killed by intimate partners, 48 percent fewer law enforcement officers killed with guns, even 48 percent fewer gun-related suicides. Clearly, background checks are effective in keeping guns out of dangerous hands.


Since the terrible tragedy at Sandy Hook Elementary, Congress has failed the American people by failing to “Finish the Job” started  with the Brady bill and expand background checks to gun shows and online sales nationally. Yet fortunately for the American people, states have started to take matters into their own hands, with five states passing new laws expanding background checks in just the last two years.


Now, thanks to Senate Bill 941, the Oregon legislature has a critical opportunity to continue this wave of momentum sweeping across the nation, to reflect the will of the overwhelming majority of Oregon voters who support expanded background checks (87 percent according to the latest polling) and, most importantly, to make Oregon a much safer state for everyone who lives, visits, or does business here.

On behalf of Sarah Brady and our Oregon members and chapters, the Brady Campaign fully supports Senate Bill 941 and I ask for your AYE vote. I thank all the committee members for the opportunity to submit written testimony. 


The Brady Campaign and Center to Prevent Gun Violence 

Office: 202-370-8131

Cell: 619-850-5229

Twitter: @mnaple

April 20, 2015 09:58 AM

Micologist Paul Stamets in a TED Talk about the power of fungi.

April 15, 2015 12:05 PM

Meryl Streep pays tribute to Hillary Clinton at a Women in the World Conferecne in 2012.

April 13, 2015 10:24 AM

Remarkable time-lapse photography of the Matterhorn in Switzerland by Christian Mulhsuser.