The real poison pill in the TPP

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Canadians have many reasons to be concerned about the Trans-Pacific Partnership (TPP), a massive international trade agreement that, if ratified, will result in restrictive new rules governing our daily lives, from how we use the Internet, to how much we pay for medicine.

We already know the TPP will extend copyright terms for decades, keeping valuable cultural content out of the hands of new artists and the public. We know it will hamstring Canadian innovation, with top Canadian tech entrepreneurs telling us how it locks in the economic advantage U.S. firms already enjoy in the intellectual property sector.

But the real poison pill in the TPP lies in its "investor-state dispute settlement" mechanism, or ISDS. Economists from all sides of the political spectrum have warned about how the TPP's ISDS rules would allow foreign conglomerates to challenge our domestic laws and subject Canada to multi-million-dollar lawsuits.

For example, if Canada updates its copyright rules to the benefit of users, we could be sued for millions, if not billions, by powerful and unaccountable foreign conglomerates.

Although ISDS is not a new idea -- similar rules appear in the 20-year-old North American Free Trade Agreement (NAFTA) and in the more recently completed Canada-EU Comprehensive Economic and Trade Agreement (CETA) -- many citizens are only now coming to understand the negative implications.

In fact, the Canadian and European governments are already rethinking CETA's ISDS rules, due to widespread concern about how they enable powerful conglomerates to undermine national sovereignty. Increasingly, people are asking why we should prioritize the profits of giant conglomerates over the right of citizens to legislate in their own self-interest -- for example, by creating balanced intellectual property laws.

This raises two important points.

First, if the government can go back to the drawing board with CETA, an agreement that is long-completed and well into the ratification process, surely it can do the same with the TPP. But Canadians have repeatedly been told that the TPP is now closed to any modification, despite the fact that the public -- not to mention our current federal government -- were completely excluded from the talks. This simply isn't good enough given what's at stake. The government should stand up for Canadians and demand better.

Second, we're now fully seeing just how unpopular extreme ISDS rules really are. Citizens of many industrialized nations, Germany in particular, find the terms of ISDS to be unacceptable and are increasingly voicing their unease. The more people learn about ISDS, the less they like it.

They're not wrong. Looking at Canada's own past record in ISDS proceedings, it becomes clear that we're rarely a winner. In fact, Canada has been called the most-sued nation under free trade agreements; and a Canadian company has never won an ISDS case at a trade dispute panel under NAFTA.  

Let me leave you with two final points about the TPP's ISDS rules: there's no way to challenge ISDS decisions once they're made, and if and when we lose a case, the government will not disclose how much Canada has been penalized. We could end up forfeiting billions in an opaque tribunal system, staffed by ex-lobbyists, for which there is no appeal process.

Does this sound like a fair deal to you? If not, join with thousands of your fellow Canadians and let the government know what you think at LetsTalkTPP.ca

Meghan Sali is a digital rights specialist with OpenMedia, which works to keep the Internet open, affordable, and surveillance-free.

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