The great CETA swindle

Hi, good article. I was just a bit confused though, since you say that "While Canada, the EU and its Member States have inserted a number of public service reservations and exemptions... they don't apply to the most dangerous investor protection standards, like expropriation (article 8.12)".

However if you open article 8.12 in CETA, is says "A Party shall not nationalise or expropriate covered investment either directly, or indirectly through measures having an effect equivalent to nationalisation or expropriation ("expropriation"), except: (a) for a public purpose...."

Does this count as a public service exemption in the investor protection against expropriation?

EXCELLENT TRUE-ARTICLE!

tHANKS

When is the vote? and is there any chance that it will not go through?

This article is a superb example of caricature and populist disinformation : aitec/CEO, Trump, Le Pen, Farage etc. same fight ? Everything in that paper is based on intent shaming of the 28 EU member States that have ratified the CETA, of Canada and its provinces, the EU Commission, the European Parliament etc. plotting for weakening European and Canadian standards for the benefit of a few multinationals.
The CETA, however, in itself, does not imply any single change (positive or negative) to existing standards or prevents adoption of future standards. Any change to existing standards, however tiny, requires a change in existing laws, thus passage through the normal legislative process, i.e., in Europe, a proposal by the Commission, the examination and adoption by the 28 Member States (often unanimous) and by the European Parliament. Good luck to those willing to weaken existing standards or prevent adoption of more stringent rules at the end of that process! Of course, if all euro-skeptics or alter-mondialists abstain in the coming European Parliament elections, the risk is serious that populists and arch-liberals the Trump style dismantle new environmental, social, human rights etc. developments. But this will not be the fault of the CETA.
As to the arbitration bodies between investors and host parties to the CETA, the so-called “CETA Swindle” paper is pure intox. The arbitration body has no other competence than guaranteeing that the commitments taken by the parties in the trade agreement, particularly the non-discrimination principle, are respected in word and spirit. Both the text of the CETA, of the bilaterally agreed interpretative note (that merely confirms in other words what was clear in the CETA) and the guarantees given by the Commission and the Canadian government, guarantee that the CETA (including its ISDS provisions) cannot restrict the parties freedom to legislate as regards public services (including education and health), labor, environment, consumers protection, regulation of economic activities, human rights etc.
By definition, an arbitration body created by a trade agreement cannot not impose on parties obligations that go further than what they have stated/limited in that agreement. Once parties have stated unambiguously limits to their commitments, no arbitration body could compel them to go beyond what they committed. If, by impossible a wild or mad panel imposed on a party to violate the limits of its commitments, for example by penalizing it for legislative (in)actions beyond reserved limits, the “condemned” party could of course refuse implementing that panel’s conclusion. Need to remember that panels have no bailiffs nor armed forced allowing them to have their conclusions enforced. Only the regular judicial could decide executive force (in legal slang this is called “exequatur”). However seeing the judiciary of a “condemned” Party compelling the to violate the terms and limits of its commitments is, the least one can say, non common in a democratic constituency!
As to the “billions of Euros” referred to in the paper as sanction for breach of a commitment, let us recall that only proven damage caused by an expropriation (direct or indirect) can be indemnified. Mere lower profit due to the (non) action by a Party in the fields of competence of the arbitration body (essentially discrimination between foreign and local investors) does not allow recourse to arbitration. The German constitutional court (www.bloomberg.com/news/articles/2016-12-06/utilities-entitled-to-damage… )(seized in parallel with an arbitration procedure) admitted that the Swedish Vattenfall, producer of nuclear energy in Germany, be compensated for the German decision to close nuclear power plants, this being held an indirect expropriation. Vattenfall never asked for the repealing of the German law but only to be compensated for the colossal investment made in good faith in Germany, that had become idle. Is this chocking or undemocratic? As to Philip Morris, its action before an arbitration body was turned down (www.nortonrosefulbright.com/knowledge/publications/139441/philip-morris…). That firms caring for pub launch actions they know will fail, just for blackmail, this is not new.
Let us remind that these cases and all the others referred to by alter-mondialists took place in the frame of bilateral trade agreements that, unlike the CETA, do not in any way limit the remit of arbitration bodies’ competences. EU Member States have hundreds of these kinds of agreements containing unlimited competence of fully private arbitration bodies (investmentpolicyhub.unctad.org/IIA/mappedContent#iiaInnerMenu). Belgium only has 80 such agreements with most countries of the world, 18 of which are in the process of ratification. Instead of accusing CETA of “swindle”, why not underline the real democratic progress it brings by the so far unknown strict limitations of the competences of the arbitration system?
Is this meaning that the limits on competences entrusted to the CETA ISDS makes it useless? No. Suppose a Canadian press group settles in Hungary and diffuses there ideas opposed to those of Mr Orban. Directly or indirectly it will soon be expropriated. Could one imagine that Orban’s judiciary would indemnify that group? If a Canadian investor sets up a rubbish incinerator in Naples, this causing concern to the local rubbish mafia. Its activity will soon be interrupted, local authorities keeping blind. Would all Naples judges quickly and fully indemnify the group? If a Canadian investor builds an airport in Bulgaria, in competition with a local entrepreneur well introduced with local authorities. What about indemnification by local justice? Those are real-life situations.
In another framework, what about indemnification for discriminatory practices common in China, India, Russia, Vietnam? The 2016 Commission report on Trade and Investment Barriers and Protectionist Trends (trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154665.pdf) identifies 1059 trade restrictive measures and discriminations affecting EU investors in 31 selected third countries.
In complex matters, after-truth, complotism, accusation of “all rotten”, facts deformation, omissions easily develop on the fertile ground of current populism. The text herewith commented is a masterpiece of disinformation.