Sunday, October 23, 2016

Free Trade Is Never Free

While it is beginning to look like International Trade Minister Chrystia Freeland's departure from CETA negotiations was more of a ploy than the end of talks, the hiatus at least gives Canadians the opportunity to once more reflect on its dangers, the same dangers that afflict other so-called free trade deals.

The fact is, free trade is never free. The surrender of sovereignty rights, about which I have written previously, is probably the most insidious aspect of such deals, given that corporations are granted the right to sue if national or subnational governments pass legislation that affects a corporation's right to make money. That includes legislation to protect the environment or mitigate climate change.

An analysis of the Trans Pacific Partnership yields this chilling truth:
"The Investor State Dispute Settlement (ISDS) mechanism included in the TPP investment chapter grants foreign investors access to a secret tribunal if they believe actions taken by a government will affect their future profits. This provision is a ticking time-bomb for climate policy, because many government policies needed to address global warming are subject to suits brought before international investment tribunals. ...Other TPP chapters like the one covering trade in goods can be the basis for state-to-state suits challenging climate policies."
Here in Ontario, citizens were recently reminded of the consequences of corporate displeasure via the NAFTA investor dispute settlement provisions. Opting for some sober second thoughts, the province decided to put a moratorium on offshore wind turbine development, a pause that did not sit well with Windstream Energy LLC, the American company that had signed a $5.2 billion deal with Ontario. A fine of $25 million has been imposed after Windstream invoked its investor rights that were granted under NAFTA, but the fine is a mere precursor to future action.
At the end of September, a panel convened by the Netherlands-based Permanent Court of Arbitration awarded $25.2-million in damages and almost $3-million in legal costs to Windstream, saying the province broke rules under the North American free-trade agreement when it put a moratorium on offshore wind developments in February, 2011, effectively scuttling the Windstream project.
The deal is still considered to be in force, and Windstream has every intention of making sure it comes to fruition:
“We have a contract here, and contracts don’t go away,” [Windstream director David] Mars said, even though the moratorium on offshore wind is still in effect.
In other words, taxpayers will have to brace themselves for further, much deeper compensation to the company in the future, unless Ontario gives in to the extortion NAFTA has made possible.

And despite free-trade cheerleader Freeland's ceaseless chatter about making the investor dispute settlement process more transparent, the unalterable fact is that the right of corporations to sue governments remains solidly intact.

I'll leave the final word to Noam Chomsky who, in this brief video, reminds us of some inconvenient truths we would do well to never, ever forget:


  1. A roaring mouse has reminded us that free trade costs a lot, Lorne. Power to the people.

    1. The people of Waloon remind us, Owen, that we still have power, if we choose to think for ourselves and exercise it.

  2. BBC has a clip of Chrystia getting absolutely weepy at the failure to fly back to Ottawa with an inked deal. Way too emotional which, to me, suggests she might have had an unhealthy attachment to CETA.

    TPP, we know, is a geopolitical gambit aimed at bringing the Asia Pacific countries to our team and thereby isolating (containing) China. CETA, with its companion US treaty, could have been a similar effort to reinforce European-North American bonds at a time when some EU countries, notably Germany, seem to be drawing closer to Russia. Perhaps the price of buying their fidelity is to deeply integrate our economies under the ISDS umbrella.

    I'd like to see some evaluation of how ISDS can be abused, allowing companies to turn purely notional losses into cold, hard state cash. If the system can be gamed it's logical it will be gamed.

    1. I agree, Mound. Any chance for a profit, no matter how ethically or morally challenged, will be pursued by the majority of corporations. Your reference to notional losses rings a distant bell; something tells me it has been tried before. Perhaps you or I can do some research to find out.

  3. Canadians have to ask Lorne, that CETA , a deal written by corporations and really only supporting corporate rule at the expense of Canada's sovereignty and the destruction of Canada as an independent Nation State, why then is Freeland and Trudeau so keen to sign and ratify this deal?

    This unconstitutional deal which threatens the very laws that our countries freedom rest on is being promoted by its 2 loudest cheer leaders, Freeland and Trudeau.

    More then anything is what it reveals about these 2 and the liberal party they represent.

    They vociferously support special interests, along with a continued implementation of neoliberal policy both domestic and global.

    Freeland has not sat at the table negotiating for the rights of Canadians. Her sheer arrogance around dismissing the damage that this deal will do to Canadians economically, politically and judicially is what stands out to me. Along with that is Trudeau questioning the EU's relevance if they do not sign off on CETA.

    You're right Lorne, "that we still have power, if we choose to think for ourselves and exercise it." In fact that is essentially what we must have to take our country back.

    Freedom and democracy is never sustained by an ignorant, apathetic populace.

    1. Citizen engagement has never been more important, Pamela. And, like you, I deeply resent Trudeau and Freeland claiming to speak on our behalf when they say that Canadians support such deals. it would be far more accurate to say that corporations, both national and international, support it for the obvious advantage it grants to compromise national sovereignty and thus make even more profit for their shareholders.

  4. Are any Canadians asking?

    I find the current tap dance we are witnessing reminiscent of the public displays of angst and pretense of desperation by Mulroney and Burney a generation ago over the possibility that the Canada-US deal was in peril because of American apprehension. I've always believed that we were the unwitting dupes of a ruse designed to seduce an uninformed public into assuming, without any further analysis and consideration of what it would occasion that, because a negotiating and simultaneously competing business partner had some reservations, the deal must certainly be much more beneficial to Canada than to its supposedly hesitant deal partner at whose expense the anticipated benefit was to be achieved.

    On Saturday when I met up socially with a couple of old acquaintances, both university-educated persons, one of them initiated a discussion of the current CETA situation. They're not people who are generally uninformed: one has an honours degree in history; and the other is a retired police chief. Before I had said anything on the subject, one of them introduced a conversation expressing his displeasure that an insignificant region of a country that had been freed from oppression by Canadian efforts during the Second World War would dare to obstruct an enterprise beneficial to Canadian interests. As my grade eight history teacher would have said: "Shades of the CUSFTA." My pal had made the assumption, just as many other Canadians must have done when Mulroney submitted his star performance, that the other side was balking because the relative benefits of the deal were so heavily weighted in Canada's favour. (There must be a term that marketing specialists use for this baloney sales tactic. Maybe it's got its own chapter in "The Art of the Deal" or "Think and Grow Rich".) After listening to the others' comments, I interjected my opinions on the I-SDS and ICS factors, the enhanced corporate opportunity for achieving regulatory capture and the implications of transnational labour mobility, and briefly stated my view that an insignificant component of this and other "trade" deals actually has anything to do with trade and tariffs. Both of them looked at me as though they didn't speak English and then one of them said that he didn't remember whether he had ever even heard of the CETA prior to Friday. The other one then said that he thought he had heard the first mention of he could recall it earlier in the week.

    Now consider what they've been putting on the TV regarding this subject since the hiccup in Belgium on broadcasts that purport to be political and economic analysis : Ed Fast lambasting the Liberals for possibly wrecking his deal when all they had to do was to get it signed; Kevin O'Leary, while Evan Solomon grins from the other side of the interview, ranting in full leadership campaign mode that, because of Freeland's apparent failure, we should now question the competence of all of Selfie-Boy Zoolander's cabinet choices; a private equity and derivatives exchange expert telling Michael Serapio that "trade deals are win-win deals" and that the uncertainty in Wallonia is "absolutely appalling"; and, as we should expect, no discussion dealing with the substance of the objections.

    So what's my point? It's that there must certainly be some convergence of interests that has willed the Canadian public to be kept in the dark and cooked the pablum we are being served.

  5. Continuing ...

    What has happened during the CETA negotiations under both political parties seems to have taken it all up a notch. How did Canada become the headwaiter to and chief water carrier for the global investor-rights business lobby? What additional net benefit are we expected to assume will accrue to the country's economy through the adoption of this irregular national policy as a standard practice? Have we become the go-to guy for the transnational commerce management industry? I'll leave it up to someone smarter and better informed to consider those questions. But I'll suggest that an investigation into some revolving doors and the subsequent career choices of former negotiators and political leaders might provide some possible answers. Maybe Dominic Barton could make some explanation that relates to what's happening now under the Sunny Ways Corps.

    With respect to Mound's comment on the possibility of abuses in investor claims, it seems that another innovative market has already emerged from the vibrancy and dynamism of the I-SDS protection racket:

    1. John, your comments provide much to think about. The questions you raise here merit a wider readership than comments on a post often get, so I am taking the liberty of featuring them as a separate post. I hope others will weigh in on your thoughts here. Thanks for your contribution.

  6. I heard about this $25 million on the radio etc., a few weeks ago but never was there a mention that the $25 mil was only a precursor imposed by the ISDS of NAFTA. It sounded more like it was a payment to cancel the deal but that is indeed not the case I learn as I read this blog.

    But the lack of reference to NAFTA and the ISDS makes sense when I read this; The full text of the ruling has not yet been released, because both parties are given a chance to make revisions to the public version. Windstream said it made no cuts, but the federal government can also request that certain information remain private.


    1. The impression I get, Anon2, is that if the moratorium isn't lifted, Windstream will be returning to its original claim of over $500 million in compensation.

  7. Owen:

    Please let Lorne know it's the people of Wallonia. Let's get the name correct: a bit of minor geography isn't difficult these days with Google Maps.

    Regarding NAFTA disputes, there are three sorts of "tribunals"/arbitration boaards that can be invoked, according to the rules, yet I see no sign that the Permanent Court of Arbitration is one of them.

    The feds say it was arbitrated under UNCITRAL #3, so somebody hired the Dutch boys, like the US did about the South China Sea territorial dispute which China refused to attend. A superb article on that by a San Francisco writer K J Noh (after a tortured start I must admit) can be read here:

    But I digress.

    With NAFTA disputes, easily found on the fed gov website, it is worthwhile to note that the Windstream judgment is against Canada, not Ontario. Which means the rest of us get to pay for Ontario's apparent misstep. Thanks.

    There is a current case involving Lone Pine Resources who are upset that Quebec decided fracking the St Lawrence riverbed near Trois Rivieres wasn't a good idea. If that is lost, well, all Canada gets to pay as well. Sub-national governments get away scot-free, so Wynne and Couillard are free to act like nitwits not thinking things through thoroughly beforehand. Which, it seems to me, should be de rigeur these days with possible NAFTA consequences, so that zero opportunities for "bogusly" registered Delaware corporations to upset the applecart are dreamt up by politicians sensing future glory and neglecting to cross their "t"s and doting their "i"s while fantasizing at how amazingly brilliant they are in their own minds. A bit more thorough future planning would not go amiss.

    With regard to CETA, all these ISDS cases using arbitration procedures like the ones NAFTA use are replaced by a 3 person tribunal. Freeland's big revelation in the Spring was that all the problems with ISDS within CETA were all over (ha!), because instead of permanent doinks sitting on them, a system of random choices from 15 people for each seat for each case was now in place for the tribunals. "Can't say fairer than that, eh guv? I mean to say, fair's fair, roight?"

    Meanwhile, all the neoliberals wring their little hands over the Wallonian parliament having had the unbelievably impertinent temerity to actually read the damn CETA document instead of being actively 110% in favour like Canada, and its media who never bothered to read or analyze the deal in detail. but just gave it the A-One pass. I mean, 19th century laissez-faire, we all had that in high school history and it was proclaimed "good" and a characteristic of all tolerant people. Bingo, sold that one to the kids, me in 1962, because reactionary sounds just so "bad". /2

  8. /1. Continuing my musings:

    The very French Wallonian parliamentarian CBC Radio interviewed was completely unapologetic about their rejection of the deal, saying they had spent months really trying to understand it, and found it completely wanting in the agricultural and social sectors. So, as is their right, they rejected it and despite everyone and their dog trying to change their minds, they still rejected it and felt the whole thing should be redone. Okay Justin, get up off the floor and act like the idiotic hosts on CBC Halifax this morning making fun of Wall-loons, as if their name meant they were utter fools. We all know the real Wall-loons live in Saskatchewan (plus Jason in AB) and walk around in a permanent thrall to Brad and his continual carping and whining about the Feds and progressives in general. It's a good thing provinces cannot torpedo free trade deals like Wallonia can without Belgium. Isn't it? Well, is it or isn't it? Only the Shadow knows!

    No doubt the Wallonian parliamentarian will be offered free pension top-ups, round-the-world cruises and a perpetual supply of caviar and Napoleon brandy for coming to their senses before JT appears for Selfie Ops in Bruxelles. But, it doesn't seem all that likely to work out in Freeland's favour judging by what I heard.

    Too bad: "secretly" negotiated "free" trade deals neglecting to inform the population involved during the taxing talks and consequent public servant burnouts from overwork, gosh how hard life is, are oxymoronic illogicalities of the first order anyway. So no doubt they'll all be off to negotiate a few more just as soon as possible.

    Cynical? You bet I am. But also yes, fatalistic. Mere logical words and waving placards cannot stop the rush to greed and ruination of the planet it seems.


    1. Many thanks for your comments and links, BM. I shall check them out right away. I have said it before, and I will say it again: if these deals are so 'gold-plated," to use Freeland's terminology, it is incumbent upon the government to explain to its citizens why the investor state dispute settlement mechanisms exist at all, and how they benefit citizens. I suspect that is not a field of inquiry they would be too fond of addressing.

      It is sad when expressions of national interest and social/economic considerations, as in the case of the Walloons, are seen as betrayals of all that is just and holy. The fact that the mainstream press does not see fit to explore these issues in the depth they deserve is yet another indictment of both their laziness and their complicity in promoting the neoliberal agenda.