Letters - Negotiate for better terms

18 Nov 2015 / 19:55 H.

    "TPPA, the rakyat and democracy" (Law Speak, Nov 2) refers. It is argued that our democratic rights and national sovereignty will be eroded. However what is not explored are the benefits that the TPPA could bring to the country and the safeguards that were negotiated. One aspect that most civic citizens would welcome will be its likely positive impact on transparency and corruption.
    One argument against the TPPA is its introduction of a form of private arbitration called the investor-state dispute settlement (ISDS). It is seen as a means by which "powerful foreign corporations" can take legal action against the government using investor biased tribunals made up of conflicted corporate lawyers.
    Governments that breach their legal duties are taken to task by private and public interests all the time. Sovereign states are legal entities that can sue and be sued, so there is nothing particularly significant about a foreign corporation being allowed to sue the government.
    It is also argued that the ISDS erodes Malaysian sovereignty and the power of our Parliament to enact its own laws. In the context of international obligations, a nation subscribing to an international agreement should also be obliged to amend domestic laws to be in line with its international commitments. A country is not expected to pass laws that run contrary to its international obligations. Would the proponents of this argument say that it is permissible for Malaysia to subscribe to treaties on human rights but still continue to enact laws incriminating freedom of speech? If Parliament's wings are clipped, they are clipped every time we enter into treaties. That is the reality of being a responsible member of the international community.
    ISDS as a concept and a form of dispute resolution has been around for some time, particularly in international trade agreements. There are no less than seven FTAs signed by Malaysia that contain ISDS provisions. Therefore, to object to the TPPA on the sole ground that it provides for ISDS is somewhat disingenuous as this is neither novel nor exclusive to the TPPA.
    There are also other safeguards:
    » There are provisions on mandatory consultation and mediation before a suit can be launched.
    » A claimant must prove losses suffered arising from a breach of the TPPA and must shoulder the burden of proof.
    » There are procedures for raising preliminary objections to discourage frivolous claims and claimants must pay legal fees and reasonable costs to the host government.
    » No claims may be allowed after more than three and half years.
    As the TPPA is an international agreement between sovereign nations, neutrality would be compromised if a country's courts are given the authority to determine the outcome of a dispute between that country and the national of another contracting state. The question that also arises is "Whose courts should decide the issue?" The aim of ISDS would be a fair mechanism to provide assurance to foreign corporations that grievances can be addressed before a neutral tribunal. To be clear, there are no double standards as other countries involved in TPPA are also subject to the same arbitration process.
    Private arbitration has been accepted as an efficient and fair means of resolving disputes in many areas once considered the exclusive domain of courts, and there is no reason why international disputes should not also be settled by qualified experts. Malaysia's international commitments are outside the jurisdictional boundaries of domestic courts.
    Rather than present ISDS as an intrinsic evil, it would be more constructive to argue for clearer and fairer conditions for its use. Conflicts can also be managed with greater transparency and by imposing stringent guidelines for disqualification of arbitrators.
    It would be a shame to use the ISDS procedure as a basis for objecting to what may yet prove to be an extremely beneficial treaty arrangement for Malaysia.
    Loong Caesar
    Kuala Lumpur


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