Hillary Clinton was talking trade in New Hampshire today, in response to questions from reporters. I don't see the full video or transcript anywhere on the internet yet (I suspect it will be up there soon), but Ted Alden of CFR sent me something he had (this is an unofficial transcript, but it sounds pretty much like what I heard live on the radio). A lot of her remarks are on the nuances of TPA/TPP, but I'll let others parse her statements on that issue in the coming days. I'm going to focus on ISDS, where she said this:
I believe that you take whatever happens to you in a negotiation and you try to leverage it in this case I believe that one of the ways the president could get fast-track authority is to deal with the legitimate concerns of those democrats who are potential yes voters to see what’s in the negotiation or even what’s in the existing framework agreement that is being drafted, could be modified or changed.
I’ll give you an example. When I was … I sounded a bit of alarm in my book hard choices about the investor-state dispute settlement process. I did so because it’s fundamentally an anti democratic process. And it really depends first whether it’s in there and if it’s going to be in there, what the terms will be and who is in the room. If it’s only those parties, those corporations predominately, who have a stake in the outcome and you’re not hearing from local or state governments, you’re not hearing from nongovernmental organizations like environmental groups or health groups, then I’m not sure that’s a fair way to resolve a dispute. That’s just one example I would give you.
So what exactly is she saying here? As she starts off, it sounds like it is going be an Elizabeth Warren-style assault on ISDS, as she "sounds the alarm" on this "anti democratic process." Seems very critical! But then she takes it in a softer direction, noting that if it's in there, it depends on "what the terms are and who is in the room." She then pulls back even further, and focuses only on that last part, "who is in the room" (the courtroom?). She is concerned that only corporations are in the room, with local and state governments and NGOs excluded.
Now, I'm not actually sure what the rules are for who gets to be in the room for the hearings. It may depend on which investment treaty/chapter we're talking about. Do NGOs ever get in there? I would have thought no. How about local and state governments? Are they ever part of the defending government's delegation? Regardless of whether they get in the room, though, I would have thought that these actors can make their views known through amicus submissions or direct contact with the national government officials who defend the case.
But putting that aside, there's a much larger point, which is that these criticisms are somewhat marginal ones. I kind of get the feeling her advisers are telling her to call for minor changes, declare that ISDS has been "reformed," and then get on board with it. If all it would take to make Clinton happy on ISDS is to tweak some of the procedures to let more parties participate in the proceedings, that should be an easy one for the business community to agree to.
On the other hand, maybe there is more. She does raise the issue of "what the terms are." But she doesn't elaborate. I can only hope she is thinking about removing the minimum standard of treatment provision, but that may be just wishful thinking!
There's still a lot for her to say on this, but it is helpful that she weighed in on the substance a bit. Any reporters out there should follow-up! (For example: Do you think ISDS should ever be in trade agreements? If so, how would you change the terms of existing ISDS provisions to make them acceptable?)