Chattering Class Diaries

To date I have made two Japanese language entries to this blog,

discussing the investor-state dispute settlement (“ISDS”) provisions

that appear to exist within the Trans-Pacific Partnership (“TPP”)

agreement.  Within those entries I have basically limited myself to

speculating as to why discussion on ISDS provisions have not gained

traction within Japan, while it is widely discussed within Europe.

On June 2, two lawyers Motohiko Yamada and Koji Iwatsuki gave a

press conference at the Foreign Correspondents’ Club of Japan

(“FCCJ”) on the lawsuit they filed at the Tokyo District Court against the

TPP, proving that there are people within Japan who object to the ISDS

provisions of the TPP.  To my question as to why the ISDS issue had

not been covered by the Japanese media, Iwatsuki’s reply was that

although he strongly felt that it was necessary for the local media to

report more extensively on this important issue, it was unfortunately not

the case.  Yamada and Iwatsuki’s press conference can be seen on

the FCCJ’s YouTube library.  I appear at about minute 51.

On June 15, again at the FCCJ, Yasuo Hasebe, Professor of Waseda

University, and Setsu Kobayashi, Emeritus Professor of Keio University

gave a press conference on the unconstitutionality of collective self

defense.  This was a followup to the position they took at the

House of Representatives' Commission on the Constitution on

June 4.  The anti collective self defense position they articulated at the

Commission have been highly controversial, given that both Hasebe 

and Kobayashi were government nominated experts, and has led to 

extensive coverage within the local media.

During Kobayashi’s talk, he made a statement to the effect that treaties

stand between the constitution and domestic laws in their order of

precedence.  In other words, he was saying that treaties are below the

constitution in their enforceability.  This would be incompatible with the

notion that the TPP agreement, with its ISDS provision, would take 

precedence over the constitution. When I pointed this out to

Kobayashi and solicited his views on the TPP,  his reply was

unequivocal.  He held that the TPP contravened the constitution.

I am not entirely in disagreement with the TPP exercise.  I believe in

free trade and free enterprise, but also believe in tempering that

with a dose of “wealth against commonwealth” considerations. I would

not wish to see domestic regulatory issues being referred willy-nilly

to arbitration forums that stand above constitutional controls.  Facts

are rarely in clear cut black and white form.  Within this grey zone,

arbitration awards could be purchased by the quality of the legal team

that one is able to deploy -- at great cost. 

On a more personal level, I would also not wish to see e.g. genetically 

modified crops that are prevalent within the US flood the Japanese 

market, and giving the US insurance industry an ability to take on the 

Japanese universal health care system in an arbitration forum.

On June 8, the German journal Spiegel’s English website carried

an article "The TTIP Gap: How a Trans-Atlantic Trade Deal Can Still

be Fixed".  In it Spiegel argued in favor of a “TTIP light” concept where

it quotes Klaus Müller, the executive director of the Federation of

German Consumer Organizations thus:

Brussels and Washington should quickly reach a deal on the issues

on which they can readily agree, such as industry standards and

tariffs. In contrast, the negotiators should set aside issues of food

safety and health protection, because the respective legal cultures in

Europe and the United States are too different.

On June 12, the US Congress voted down President Barak Obama’s

proposal to give him authority to negotiate global trade deals and

subsequently seek congressional approval (or rejection) for the entire

negotiated package. Maybe this is a good time to sit back and bring the

TPP negotiations out into the open and reset the terms of the

negotiations.