I was watching the Senate Finance Committee markup of the TPA bill last night -- I really enjoy the "voice votes," where they all speak as loudly as they can! -- and I was struck by an exchange between Senator Sherrod Brown and USTR General Counsel Tim Reif. Brown was criticizing ISDS (no surprise there!). In this context, he said that while he had heard ISDS supporters assert that the existing ISDS model includes a "right to regulate," he wanted to know exactly where in the text it was. Reif responded by referring to this language (from the model BIT):
Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.
Here's what I wonder: If ISDS proponents agreed to this language in the context of expropriation, why won't they also agree to similar language in the context of fair and equitable treatment? That would, in my view, solve about a third of the existing problems with ISDS.
