The US Lone Star Mining company is currently using ISDS provisions in the North American Free Trade Agreement to sue the Canadian Quebec provincial government because it has suspended coal seam gas fracking pending a study of its environmental impact.
Ethyl vs Canadian Government 1998-99: US company Ethyl successfully challenged a Canadian ban on gasoline additive MMT which the Canadian government claimed was harmful to human health and the environment. The Canadian government agreed to withdraw the ban and pay Ethyl $13 million
On August 25, 2008, Dow AgroSciences LLC, a U.S. corporation, served a Notice of Intent to Submit a Claim to Arbitration under Chapter 11 of NAFTA, for losses allegedly caused by a Quebec ban on the sale and certain uses of lawn pesticides containing the active ingredient 2,4-D. The tribunal issued a consent award as the parties to the dispute reached a settlement
In the United States and Canada the reality is that federal governments are often willing to "lose" these cases in order to discipline provincial, state or municipal governments that have adopted progressive social and environmental policies.
The proposed TPP foreign investor privileges would provide foreign firms greater 'rights' than those afforded to domestic firms. This includes a 'right' to not have expectations frustrated by a change in government policy
In the US, the powerful corporate lobby position on the Australian Labor Government's position is, quote: 'American companies should be able to side-step the Australian legal system in the event of certain legal disputes'
Under ISDS rules, even when governments win, they often must pay for the tribunals' costs and legal fees, which average $8 million per case.
The TPP would expand the scope of policies that could be attacked. For example, in health, the office of the United States trade Representative has also proposed patenting surgical procedures - a move that would force Congress to change IP law and one that could force surgeons to obtain permission from patent-holders before performing surgery!
Australia is already experiencing the effects of ISDS provisions with Phillip Morris, having failed in Australia's High Court, now attacking Australia's cigarette labelling policy off-shore using a 1994 'Investment Agreement' with Hong Kong that contained ISDS provisions. This could cost Australia hundreds of millions of dollars.