One issue I've been wondering about for a while is how TPP ISDS will interact with NAFTA ISDS (and ISDS in other FTAs between the TPP parties). For example, if a Canadian investor in the U.S. wants to bring an investment claim, what would its options be after (if?) TPP comes into effect? Does it have a choice of either TPP or NAFTA? Does TPP supersede NAFTA in this regard?
I was hoping for a clear answer in the TPP text as to how these two sets of ISDS provisions might relate. What I see so far is this:
Article 1.2: Relation to Other Agreements
1. Recognizing the Parties’ intention for this Agreement to coexist with their existing international agreements, each Party affirms,
(a) in relation to existing international agreements to which all Parties are party, including the WTO Agreement, its existing rights and obligations with respect to each other; and
(b) in relation to existing international agreements to which that Party and at least one other Party are party, its existing rights and obligations with respect to such other Party or Parties, as the case may be.
2. If a Party believes that a provision of this Agreement is inconsistent with a provision of another agreement to which it and at least one other Party are party, upon request, the relevant Parties to the other agreement shall consult with a view to reaching a mutually satisfactory solution. This paragraph is without prejudice to a Party’s rights and obligations under Chapter 28 (Dispute Settlement).
Article 1.2.1(b) seems to suggest that existing ISDS provisions will now "coexist" with TPP ISDS. Does anyone read that differently?
To give a concrete example, perhaps this means that if Canada passes plain packaging legislation, and a U.S. company wanted to challenge it, it could either invoke TPP ISDS (which has a tobacco carveout) or NAFTA ISDS (which does not).
This state of affairs seems odd to me, but perhaps I've missed a provision somewhere, or maybe general international law could play a role, although I imagine that might hurt rather than help with the clarify of the situation.
