Banks and other financial institutions would be able to use provisions in the proposed Trans-Pacific Partnership to block new regulations that cut into their profits, according to the text of the trade pact released this week.
In what may be the biggest gift to banks in a deal full of giveaways to Hollywood, the drug industry and technology firms, financial institutions would be able to appeal any national rules they didn’t like to independent, international tribunals staffed by friendly corporate lawyers.
That could nullify a proposal by Hillary Clinton to impose a “risk fee” on financial firms — or the Elizabeth Warren/Bernie Sanders plan to reinstate the firewall between investment and commercial banks.
Financial firms could demand compensation for these measures that would make them too expensive to manage.
The TPP, a 12-nation pact with countries in Asia and the Americas that requires congressional approval, includes an investor-state dispute settlement (ISDS) system. This allows foreign companies operating in TPP member countries to enforce the agreement without using that country’s court system. Instead, corporations can sue for monetary damages in independent tribunals before corporate lawyers who can rotate between advocating for investors and judging the cases themselves.
The lawyers have an inherent incentive to encourage more challenges with favorable rulings, so they can be paid to arbitrate them. Labor unions who allege violations of the trade deal cannot use ISDS directly; only international investors, i.e. large corporations, can.
Hundreds of past trade deals have included ISDS, usually as a special insurance policy for countries operating in emerging markets. But language in the TPP could be directed to target American financial laws and regulations.
In prior deals, financial services providers were limited to making ISDS challenges based on discrimination — where foreign companies were subject to more stringent rules than their domestic counterparts — or an illegal “taking” of their investments. These types of challenges have been largely unsuccessful in ISDS tribunals.
But now, for the first time, financial institutions could make an ISDS claim based on not receiving a “minimum standard of treatment.” This is the most flexible type of claim. “Over time, tribunals have interpreted this to mean that the company gets compensation if the change in policy disappoints their expectations of future profits,” said Lori Wallach of Public Citizen’s Global Trade Watch.