In November 2015, just after President Obama finally stood up to the fossil fuel industry and rejected the TransCanada Corporation’s application for its tar sands pipeline through the United States, I issued a warning: In The Hill, I applauded the Obama decision and laid out the reasons why, under current trade and investment rules, TransCanada had grounds to sue the United States under the 1994 North American Free Trade Agreement (NAFTA). I hardly need remind readers that NAFTA launched the modern era of corporate-biased investment rules, and serves as the model for the investment chapter in the TransPacific Partnership (TPP) that now awaits votes in the U.S. Congress and in the legislative bodies of the 11 other TPP countries.
Lo and behold, TransCanada came to the same conclusion that I did. They hired a giant corporate “K Street” law firm, Sidley Austin, and in January 2016, the fossil-fuel giant put the U.S. government on notice of a potential lawsuit under the investment chapter of NAFTA.
Can we, the people, file a court based constitutional challenge to the ISDS process entered into by 2 Branches of our Government, which excludes the third branch of our government from it’s purpose, disputes?
I suggest a kickstarter funded challenge to the seeming unconstitutional mechanism. I’ve read there are several, or even many, law professors who believe the mechanism unconstitutional.
I suspect, but do not know, that the limitation on a challenge is funding.
As Bernie has shown, and Kickstarter has proven over and over again, getting individuals to fund a large undertaking is possible.
If we challenge the ISDS process as unconstitutional and win in the US, ISDS probably falls apart worldwide.
Other people from other countries, especially in Europe would probably contribute to a fund to challenge ISDS.
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