Outsourcing the rule of law via the TPP agreement

Agents of numerous countries, led by the United States, have engaged in closed-door meetings about a secret agreement to create rights for foreign corporations and other “investors” to challenge domestic consumer protections, environmental provisions, employment law, civil rights, and other democratically enacted “regulations” that supposedly reduce corporate profits. It is difficult to discuss more concretely the specific terms being negotiated as part of this purported Trans-Pacific Partnership (“TPP”) agreement because – even now – the key items remain cloaked in secrecy.

Despite the grim determination to keep the terms of the purported TPP agreement from the light of day, certain draft sections of the agreement have been disclosed by apparent whistleblowers. Those leaked sections confirm the worst fears of advocates for consumer protection, environmental preservation, workplace fairness, freedom of expression, and the rule of law generally. For example, the recently leaked chapter on “intellectual property” provides for the imposition of civil damages awards that exceed actual losses and, moreover, criminal liability for the purported infringement of foreign corporation’s alleged property rights. Importantly, the TPP agreement would control approximately 40% of the global economy if adopted.

Congress has the power to reject the TPP agreement, and Congress may be inclined to do so. Although Congress eventually gave President Barack Obama fast-track authority such that the TPP agreement can be approved – or disapproved – by an up-or-down vote without debate, Congress granted the authority only reluctantly and with vigorous opposition to the agreement expressed by both Republicans and Democrats. Those who seek to preserve the integrity of the nation’s democratically established legal system hope that further disclosures by whistleblowers will create the public pressure necessary to convince Congress to do what is right.