I am also very concerned about the implications of ISDS for democracies. However I would not argue that TTIP should be abolished entirely because of it. Studies expect an annual increase in GDP growth of about half a percent - which doesn't seem like much considering the historical GDP growth, but GDP growth is expected to be much weaker in the western hemisphere than in the past - so we shouldn't outright dismiss half a percent as too little.
Furthermore, as mentioned by other commentators, ISDS is already a part of many treaties. However one fundamental flaw - which is a part of many of the previous treaties involving ISDS - was that the conditions required for allowing corporations to sue governments were very loosely defined: The treaties usually allow corporations to sue governments if any kind of "indirect expropriation" occurs - From a paper on CETA: "Indirect expropriation can only occur when the investor is substantially deprived of the fundamental attributes of property such as the right to use, enjoy and dispose of its investment; " (1)
This clause allows corporations to sue against a very broad range of policy measures. The TTIP supposedly contains a more detailed outline under what circumstances corporations can sue (2):
• We have reaffirmed the right to regulate. In CETA we have made clear in the preamble of the agreement that the EU and Canada preserve their right to regulate and to achieve legitimate policy objectives, such as public health, safety, environment, public morals and the promotion and protection of cultural diversity.
• We have defined key concepts like “fair and equitable treatment” and “indirect expropriation”, in order to prevent abuse. For the first time, CETA provides a definition of these terms. "Fair and equitable treatment" is defined through a clear, closed text which defines precisely the content of the standard without leaving unwelcome discretion to arbitrators. Moreover, detailed language has been agreed upon to clarify what constitutes indirect expropriation, particularly excluding claims against legitimate public policy measures.
As it so often happens during negotiations, the fundamental decisions are made when definitions are being defined. Only if the policy makers in the US and EU can agree on a very specific definition of "indirect expropriation" that is not vulnerable to abuses by corporate lawyers, then we can hope for a good long term outcome for the consumer. And if these requirements are enforced in the arbitration courts, then the ISDS in my opinion becomes a much more sensible part of the treaty. However due to the secrecy involved in the current negotiations, I don't know which exact definitions are currently part of the treaty.
There were a article about this a few days ago that showed the half a percent to be best case estimates, where the first section that deals with removal of tariffs does the heavy lifting regarding GDP growth.
But all commentators that is against the agreement have been about the other sections in the agreement, not the removal of tariffs. The agreement could be cut by 90%, and majority of the best-case GDP growth would still happen. Add with the skulduggery and non-democratic process, it is easy to view this as a Trojan horse which 10% good and 90% maliciousness added in. If the political process forces people to a binary decision, abolish it and then create a new agreement which only include the stuff about tariffs.
It's not half a percent annual growth but total growth between now and 2027, so something like 0.03% annual. And in fact, even that projection is considered too optimistic by some. (For instance, it assumes that more IP protection is good for the economy.) See http://www.cepr.net/blogs/beat-the-press/why-is-it-so-accept....
ISDS isn't the only problem with the treaty, though. It's just another problem that highlights how much TTIP would empower corporations at the detriment of private citizens.
The question is: Who paid for the studies. We in Europe where told how much we could get from TTIP -- afterwards, the EU had to revise the figures again and again. Also it was predicted, that people in the EU will have 500 EUR extra per year ... but nobody guarantees, that everybody will have the same figure.
I predict, that it will go like with the Mexico treaty. I lately saw a documentary about it and they said, that some people in Mexico have more money -- but the poor people have less, since many farmers are in disadvantage because of the treaty. Also many workers have disadvantages, because worker prices have dropped on both sides of the border.
Furthermore, as mentioned by other commentators, ISDS is already a part of many treaties. However one fundamental flaw - which is a part of many of the previous treaties involving ISDS - was that the conditions required for allowing corporations to sue governments were very loosely defined: The treaties usually allow corporations to sue governments if any kind of "indirect expropriation" occurs - From a paper on CETA: "Indirect expropriation can only occur when the investor is substantially deprived of the fundamental attributes of property such as the right to use, enjoy and dispose of its investment; " (1)
This clause allows corporations to sue against a very broad range of policy measures. The TTIP supposedly contains a more detailed outline under what circumstances corporations can sue (2):
As it so often happens during negotiations, the fundamental decisions are made when definitions are being defined. Only if the policy makers in the US and EU can agree on a very specific definition of "indirect expropriation" that is not vulnerable to abuses by corporate lawyers, then we can hope for a good long term outcome for the consumer. And if these requirements are enforced in the arbitration courts, then the ISDS in my opinion becomes a much more sensible part of the treaty. However due to the secrecy involved in the current negotiations, I don't know which exact definitions are currently part of the treaty.(1) http://trade.ec.europa.eu/doclib/docs/2013/november/tradoc_1...
(2) http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408...