Når norske medier bare rapporterer om konfrontasjonene i Quebec mellom
politiet og disse demonstrantene som av en eller annen uforståelig grunn er
mot fri handel, så tror jeg at årsaken primært er uvitenhet, ikke sensur.
Se nedenfor.
Trond Andresen
**********************************
Fra New York Times
March 11, 2001
Nafta's Powerful Little Secret
By ANTHONY DePALMA
Their meetings are secret. Their members are generally unknown. The
decisions they reach need not be fully disclosed. Yet the way a small
group of international tribunals handles disputes between investors and
foreign governments has led to national laws being revoked, justice
systems questioned and environmental regulations challenged. And it is
all in the name of protecting the rights of foreign investors under the
North American Free Trade Agreement.
The corporations — American, Canadian and Mexican alike — that directly
invest in neighboring countries are thrilled that Nafta provides some
protection. But foes of the trade pact say some of their worst fears
about anonymous government have become reality. And as Western economies
move toward more free trade and globalization, environmentalists,
consumer groups and anti-trade organizations are increasingly worried
about how the tribunals influence the enforcement of laws. The groups
are gearing up for a fight at the Summit of the Americas next month in
Quebec, where President Bush will be pushing a vast new Free Trade Area
of the Americas, which would provide for similar tribunals.
Protesters will attack the sweeping powers and broad impact of the
tribunals, along with their very nature — ad hoc panels drawn from
lists of academics and international lawyers almost unknown outside
their highly specialized fields.
"What we're talking about here is secret government," said Joan
Claybrook, president of Public Citizen, a consumer watchdog group in
Washington that has been critical of Nafta and other trade agreements.
Ms. Claybrook said
the 16 Nafta cases that have been filed so far in the United States,
Canada and Mexico showed how corporations were using Nafta not to
defend trade but to challenge the functioning of government. "This is
not the way to do the public's business," she said.
The tribunals have been used in Nafta disputes for only a few years, but
the complaints they have handled have already had many repercussions,
including these:
• The Canadian government lifted restrictions on manufacturing an
ethanol-based gasoline additive that it considered hazardous after an
American manufacturer said that the ban hurt its business.
• A tribunal ordered Mexico to pay an American company $16.7 million
after finding that local environmental laws prohibiting a toxic-
waste-processing plant that the company was building were tantamount to
expropriation.
• A Canadian-based funeral company is asking the United States
government for $725 million in compensation after a Mississippi jury
found the company guilty in 1995 of trying to put a local funeral home
out of business, and levied $500 million in damages. The company
contends that the jury sought to punish it because it is foreign. If
the tribunal awards compensation, critics say, all jury awards
involving foreign investors may be challenged.
• United Parcel Service, the package-delivery company, has filed a
complaint contending that the very existence of the publicly financed
Canadian postal system represents unfair competition that conflicts
with Canada's obligations under Nafta. Critics worry that if the
tribunal upholds the U.P.S. claim, government participation in any
service that competes with the private sector will be threatened.
It is clear that investors have gained a shield far more powerful than
almost anyone had imagined when Nafta was written in the early 1990's.
"There is no doubt that these measures represent an expansion of the
rights of private enterprises vis- à-vis government," said Prof. Andreas
F. Lowenfeld, an international trade expert at the New York University
School of Law. "The question is: Is that a good thing?"
The international tribunals are authorized under a Nafta clause called
Chapter 11, dealing with investments.Investors who believe they have
suffered a loss because of a breach in Nafta rules can bring a claim
against the government of the country where they made their investment.
They can have the complaint heard under one of two existing sets of
rules — one from the United Nations, the other from an independent
office of the World Bank.
These off-the-shelf mechanisms adopted by Nafta have commonly been used
to resolve private disputes between corporations, and are thus intended
to provide a great degree of confidentiality. Both critics and
proponents agree that the provisions run headlong into demands for
openness and accountability when public issues are involved.
"The fact that the drafters of Nafta chose this secretive process to
resolve these disputes is further evidence that they weren't foreseeing
matters of broad social concern coming before these panels," said Martin
Wagner, director of international programs for the Earthjustice Legal
Defense Fund, an environmental group in San Francisco.
Critics say the corporate victories have spawned even bolder and broader
challenges, each one further undermining public policy. In a recent case
that critics consider one of the most worrisome, the Methanex
Corporation of Vancouver, British Columbia, is challenging California's
decision to phase out the use of a gasoline additive containing
methanol, which Methanex makes. The state considers the additive, MTBE,
which was originally intended to reduce air pollution from motor vehicle
emissions, to be a health hazard when it enters the
water supply. Santa Monica, Calif., with 93,000 residents, had to shut
down most of its municipal wells when gasoline containing MTBE leached
into the drinking water a few years ago.
ETHANEX contends that MTBE poses absolutely no health hazard and that
the state's action would effectively destroy its market. "The work that
was done to make the decision to move forward with the ban wasn't
extensive enough to draw the conclusion that MTBE is hazardous," said
Bradley W. Boyd, director of investor relations at Methanex.
The company recently amended the claim to include accusations that a
decision by Gov. Gray Davis of California to ban the additive might have
been politically motivated and linked to more than $200,000 in campaign
contributions by the Archer Daniels Midland Company, which makes a
competing product. A spokesman for the governor, Gabriel Sanchez, called
the accusations "ludicrous."
Mr. Boyd said Methanex was not asking for the ban to be lifted, but
rather for Methanex to be compensated if it was prevented from doing
business in California because of the ban. The company wants $970
million in compensation, which rankles many Californians.
"It's the height of corporate moxie," said Michael Feinstein, an
environmental activist who is the mayor of Santa Monica. He said he was
worried that a precedent would be set if the MTBE phase-out was
undermined. Even if the tribunals have no power to overturn laws, he
said, a decision in Methanex's favor "would have a devastatingly
chilling effect on all such future laws and standards because of the
belief that they would not stand up to challenge."
The United States government, named as a defendant in the Methanex
complaint, is also concerned that the case stretches Nafta beyond
recognition. In a statement to the tribunal, the government contends
that "Methanex's claim does not remotely resemble the type of grievance
for which the states parties to the Nafta created the investor-state
dispute mechanism."
Mr. Wagner has asked the tribunal to consider breaking with tradition
and accepting written statements from third-party groups like the
Bluewater Network, a citizens' environmental organization. The three-
person tribunal hearing the complaint is unusual in that its members
include former Secretary of State Warren Christopher. The tribunal
determined in January that it had the right to accept written arguments,
and said it would decide later whether to do so in this case.
Mr. Wagner said he was able to keep abreast of the proceedings by filing
periodic Freedom of Information requests that force the United States
government, when named as a defendant, to release the documents. Other
advocates who obtain the filings this way post some on a Web site —
www.naftaclaims.com. Canada also has a public access information law,
but Mexico does not.
Officials who oversee the tribunals say that they understand concerns
about the less-than-public aspects of the panels' work but that anything
that opens the proceedings would undermine the promise of
confidentiality that corporate investors consider essential. That, they
say, would undermine the primary purpose of the arbitration mechanisms —
to help foster commercial development.
"The whole thing here was to have a mechanism to give a base level of
comfort to foreign investors," said Ko-Yung Tung, vice president and
general consul of the World Bank and secretary general of its
International Center for Settlement of Investment Disputes, which
handles Nafta claims. He said that forcing more disclosure could drive
corporations away from the established dispute-resolution process.
"If increased foreign investment is the prime goal in this, then making
public these proceedings may be less important" than protecting
investors, Mr. Tung said.
The center occupies a small suite of offices inside the World Bank's
modern headquarters in Washington. With seven lawyers and four members
of its support staff, it now oversees eight Nafta cases. There are also
29 other disputes on the center's docket that arise from some of the
more than 1,400 bilateral treaties involving more than 130 nations that
have signed an international convention to abide by the World Bank's
investment rules.
For 20 years after the center was created in 1966, it established panels
that heard on average no more than one case a year. Now, officials said,
about one case is filed every month.
HE center's primary responsibility is to appoint the arbitrators to the
panels, choosing from a list of internationally recognized experts who
are paid $1,500 a day for their work. The center is bound by strict
confidentiality rules, and only investors can say whether documents
should be made public.
"It's unfair to call this a closed or secret process," said Antonio R.
Parra, deputy secretary general of the International Center. "While it's
clearly not on all fours with a court proceeding, I don't think it is
something that is shrouded in secrecy."
Under the center's rules, proceedings can be made public if both the
investor and the involved government agree. But the Nafta proceedings
are never opened to the public, nor have third parties until now been
allowed to submit briefs. Corporations want the proceedings to remain
closed.
"The majority of claimants in these cases are not large multinational
corporations but small- to medium-sized companies," said Clyde C.
Pearce, a California lawyer who represented one such company, the
Metalclad Corporation, in a complaint against Mexico over the
construction of a toxic-waste-processing site. Mr. Pearce said the
obligation of responding to briefs submitted by third parties could
overwhelm corporate lawyers, who are already outmatched by the
governments they are bringing the claims against.
"If others want to weigh in on these cases, they have access to their
governments and should use that route to get their views across, not the
tribunals," he said.
The other set of rules governing Nafta tribunals was devised by the
United Nations Commission on International Trade Law, based in Vienna.
"Arbitration is really private justice," said Jernej Sekolec, its
secretary. Mr. Sekolec says the commission's rules for handling disputes
are routinely written into commercial contracts between investors and,
increasingly, agreements that let private investors bring complaints
against a foreign government.
But he said the commission itself never became involved in a dispute in
any way, not even to select the arbitrators. "Our overall mission is to
streamline and facilitate negotiations and conclusions of contracts," he
said.
Typically, the parties in a dispute each name one tribunal member and
agree jointly to a third. Each panel is unique, and critics say this
lack of continuity makes it hard to establish clear legal precedent.
That is especially important because a tribunal decision technically
cannot be appealed. It can be submitted to a local court for review, to
ensure that there was no corruption or gross misinterpretation of the
rules. Mexico has recently filed such a review in the case won by
Metalclad. Another appeal was filed recently by the Canadian government
in a case won by S. D. Myers Inc., an Ohio waste-disposal company that
said it was hurt by a Canadian law banning the export of PCB's.
Barry Appleton, a Canadian trade lawyer involved in several claims
before Nafta tribunals, said critics were so driven by their opposition
to globalization that they were overstating the power of the tribunals,
which he contends are nothing more than dispute-resolution panels with
no power to overturn any laws. "What they're doing," he said of the
critics, "is scaremongering."
Mr. Appleton said the arbitration panels were meant to provide a
nonpolitical alternative to resolving disputes in court. But he said
controversy had arisen because the drafters of Nafta appeared to assume
that the investor-protection provisions would be used by Canadian and
American investors to protect their investments in Mexico from outright
expropriation.
"The Canadian and American governments thought this was not going to
apply to them," Mr. Appleton said, "and now they're disappointed."
HE lack of a traditional appeal process, transparency and legally
binding precedent, along with the wide scope of what can be challenged
under the free-trade investment rules, have made many people wary in all
three nations, including government officials. Pierre Pettigrew,
Canada's minister of international trade, has written to his
counterparts in the United States and Mexico to begin a process of what
he calls "clarifying" the limits of Nafta's
investment protections and perhaps amending the agreement before
negotiations begin in earnest on the Free Trade Area of the Americas.
Activists planning to go to the Summit of the Americas in Quebec said
they would protest the idea of adopting similar tribunals in a
hemispheric free-trade pact. "This is an example of the excessive powers
enjoyed by corporations under Nafta that should not be expanded," said
the Alliance for Responsible Trade, in a critique of the United States
position on the proposed trade pact.
Critics also object to President Bush's campaign to gain approval of a
so-called "fast-track authority," which expired after Nafta was passed
in 1993. Mr. Bush has said he needs it to present the hemispheric trade
pact to Congress for a vote without possibility of amendment. The
critics contend that the scope of Nafta's investment-protection chapter
was not well understood because the fast-track process denied Congress
the chance to evaluate the agreement thoroughly.
The clash between investor rights and public policy is expected to grow
more intense, even within the agencies entrusted with keeping aspects of
the cases secret.
"The demand for a more transparent process will cause tension with the
more traditional concept of confidentiality — it's inevitable," said
Margrete L. Stevens, senior counsel of the International Center for
Settlement of Investment Disputes. She said she believed that there was
room to adjust, to open the process in keeping with such expectations
throughout the world today — but only, she said, if "the parties have
come under pressure in
their own countries to do this."
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