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Elite power politics, they contend, is imposing rules on the global economy that effectively shut out competing voices and values, that slyly undermine the sovereign capacity of a nation to defend its own citizens’ broader interests.Indeed, the US multinational community dreams of establishing Chapter 11’s provisions as the worldwide standard, to be applied next in the proposed Free Trade Area of the Americas.
The open-ended test for winning damages is whether the regulation illegitimately injured a company’s investments and can be construed as “tantamount to expropriation,” though no assets were physically taken (as is the case when a government seizes an oil field or nationalizes banks).
Under Chapter 11, foreign investors from Canada, Mexico and the United States can sue a national government if their company’s property assets, including the intangible property of expected profits, are damaged by laws or regulations of virtually any kind. The company did not take its case to US federal court.
Instead,it hired a leading Washington law firm, Jones, Day, Reavis & Pogue, to argue the billion-dollar claim before a private three-judge arbitration tribunal, an “offshore” legal venue created by NAFTA.
Sacramento had difficulty finding out what was happening, though it was California’s environmental law that was under attack.
Methanex and the other controversial corporate claims pending before NAFTA tribunals are like a slow-ticking time bomb in the politics of globalization.
And how did the right wing’s novel concept of “regulatory takings” find its way into an international trade agreement?
The story, in passing, is another devastating commentary on the decay of representative democracy.
Because any new regulation is bound to have some economic impact on private assets, this doctrine is a formula to shrink the reach of modern government and cripple the regulatory state–undermining long-established protections for social welfare and economic justice, environmental values and individual rights.
Right-wing advocates frankly state that objective–restoring the primacy of property against society’s broader claims.
NAFTA’s arbitrators cannot overturn domestic laws, but their huge damage awards may be nearly as crippling–chilling governments from acting once they realize they will be “paying to regulate,” as William Waren, a fellow at Georgetown law school, puts it.
On its face, this strange new legal system’s ability to check democratically elected governments confirms a principal accusation of those much-disparaged protesters against corporate-dominated globalization.
As mentioned in our June 2015 e-bulletin, the Small Business, Employment and Enterprise Act 2015 introduced a power to make regulations to ensure that any nonassignment of receivables clauses would be invalidated.