April 30, 2015
Dear Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, and Minority Leader
Pelosi
:
We write out of grave concern about a document we have not been able to see.
Although it has
not been made available publicly, w
e understand that t
he Trans
-
Pacific Partnership (TPP) trade
agreement currently being negotiated include
s
Investor
-
State Dispute Settlement (ISDS)
provisions
.
ISDS allows foreign investors
—
and only foreig
n investors
—
to
avoid the courts and
instead to argue to
a special, private tribunal
that
they believe certain government actions
diminish the value of their investments.
Courts are central institutions in the rule of law. Americans have much to be proud
of in the
evolution of our court system, which has
evolved over
the
centuries
and now provides
equal
access
for all persons. Courts enable the public to observe the processes of development
of
law
and to watch
impartial and accountable decision
-
makers
ren
der judgments
.
We write because of our concern that what we know about
ISDS does not
match what courts can
provide.
Those advocating
using this
alternative
in lieu of
our court system bear
the
burden of
demonstrating why such an exit is necessary, and how the alternate system will safeguard the
ideals enshrined in our courts.
Thus far, the
proponents of ISDS have failed to meet that burden.
Therefore,
before any
ISDS
provisions
are
in
cluded
in
the TPP
or any
future agreements,
including
the Transatlantic Trade and Investment Partnership (TTIP)
, their content should be
disclosed and their purposes vetted in public so that debate can be had about whether and if such
provisions
should be part of p
roposed treaties
.
Below, we detail the ways in which ISDS depart
s
from the justice opportunities that U
.
S
.
courts provide.
O
ur
legal
system rests on the conviction that every individual, regardless of wealth or power, has
a
n equal
right to bring a case
to court.
To protect and uphold the rule of law, our ideals of
fairness and justice must apply in all situations and equally to everyone.
ISDS, in contrast, is a
system built on differential access.
ISDS
provides
a separate legal system
available only to
certain
investors
who are
authorized to exit
the American legal system
.
Only foreign investors
may bring claims under ISDS provisions.
This option is not
offered to nations, domestic
investors, or civil society groups
alleging violatio
ns of treaty obligations.
Under ISDS regimes,
f
oreign investors alone are granted legal rights unavailable to others
–
freed from
the rulings and
procedures of domestic courts.
ISDS
also risk
s
undermining
democratic norms because laws and regulations ena
cted by
democratically
-
elected officials are put at risk in a process
insulated from
democratic input.
Equal application of the law is another critically important hallmark of our legal system
—
one
that is secured through the orderly development of law.
Court decisions are subject to appeal,
ensuring that conflicting lower court decisions are resolved by a higher authority.
Judges also
must follow legal precedent
.
The goal is uniform application of the law regardless of which
judge or court hears a case
.
This law development allows people, entities, and nations alike to
order their behavior according to well
-
established legal principles.