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CAFTA Trade Lawsuit Highlights Threat To State Regulations From Bad Trade Agreements

We've detailed in the past the way new international trade deals empower corporations to undermine local regulations.   A recent case highlights just how byzantine and dangerous the process is getting:

A Canadian mining company is using a recently established Nevada subsidiary to use the federal Central America Free Trade Agreement (CAFTA) to try and overturn mining regulations in El Salvador.

Earlier this month, a tribunal under CAFTA ruled against the US government’s objections to the mining company's lawsuit and allowed the case to proceed. 

Corporate "Investor Rights" Expanding: The case will be a high-profile test of so-called “investor state enforcement” (ISE) provisions which have become a common feature in trade agreements since NAFTA.  These same investor rules are a central feature of three pending trade agreements (with Korea, Colombia, and Panama), which the Obama administration plans to finalize in coming months.

First invented as part of NAFTA, ISE rules grant companies which operate in one of the states that are party to the trade pact the right to sue another party country's government if that country’s federal or state laws and regulations impinge upon the company’s investments there.  Such cases are heard by private arbitration tribunals outside of the defendant country’s legal system.  These extraordinary private-investor rules grant foreign companies greater rights than domestic companies, which may not have legal basis for challenging commonly accepted public interest laws.  Between 1994 and 2009, sixty-four cases were brought against countries under NAFTA, costing governments untold millions of dollars in legal expenses and amounting to billions of dollars in potential judgments.  In total, governments have been found liable for over $200 million in judgments under NAFTA.

By far, the more significant implications of ISE rules are the threats they pose to the environment, workers, public health, and other public interest constituencies.  In addition to the expansive opportunities they afford to multinational corporations to undermine public interest laws, they can drain government resources and create a chilled policy environment in which elected officials and public agencies feel constrained by the threat of investor-state actions.  The El Salvador case is exemplary of the danger states face from the investor-state rules included in the proposed Korea-U.S. Free Trade Agreement (Korea FTA), in particular.

The El Salvador Case and the Threat to Local Regulation: The Canadian mining company, Pacific Rim Mining Corporation, is challenging a progressive mine-licensing law passed in 1996 with a two-step licensing process. First, a company must obtain a permit for exploratory mining, which Pacific Rim did in 2002.  Before it can initiate commercial mining, the company must next obtain a full-scale exploitation permit, which requires approval of both an Environmental Impact Assessment (EIA) and a financial and technical feasibility study in order to protect El Salvador’s scarce potable water resources.  Pacific Rim has not submitted such an application.

Pacific Rim's plans included using two tons of cyanide per day to process the ore, at a site located on El Salvador's largest river and source of drinking water.  Due to the dangers posed by such mining practices, a national movement formed against precious metal extraction, and in March 2008, the conservative government led by President Elias Antonio Saca announced that no more permits would be issued until a new, thorough environmental study was completed and a mining reform law was passed.

Faced with this changing political environment, Pacific Rim decided to exploit CAFTA’s investor-state rules.  At the time, however, the company had no U.S.-based operations and therefore no standing under CAFTA to sue El Salvador.  So in December 2007, it reincorporated a Cayman Islands subsidiary in the state of Nevada, and in April 2008, following President Saca’s announcement, sent a letter to the Salvadoran government threatening to file suit.  In December, Pacific Rim filed suit, claiming hundreds of millions of dollars in damages. 

The El Salvador government filed for dismissal, but on August 2, 2010, the arbitration panel rejected the government’s position and ruled that the case will move forward.  The government has since filed a second set of objections challenging Pacific Rim’s “nationality change” as an abuse of the treaty and claiming that Pacific Rim’s Nevada subsidiary is not the proper interested party, but rather the Canadian parent corporation, which has no significant investment interests in the U.S.

The case could determine how broadly ISE provisions will be extended in practice, and it illustrates the dangers to states’ sovereignty posed by future trade deals.  If a multinational corporation can relocate a subsidiary to the US to undermine another FTA country’s laws, then the same could be done to undermine progressive US state laws, such as California’s new vehicle efficiency standards, that have been upheld as constitutional.  The Obama administration plans to move first on the Korea FTA, which poses the greatest risk of investor-state suits of any agreement since NAFTA.  Korea-based corporations have hundreds of operations located in the US, and as it is written, the Korea FTA would even enable companies to skirt new US financial reforms. 

Resources

Public Citizen’s Global Trade Watch -

Progressive States Network - Trade and the States: Promoting Collaboration on Negotiating and Implementing Trade Deals