Following up on my post from last week, just to clarify, I didn't meant to suggest there is a conflict between NAFTA ISDS and TPP ISDS. I wasn't thinking about conflicts at all.
(Although I also don't mean to suggest there is no conflict. If someone can explain how there is a conflict, I'd be happy to consider the possibility.)
Instead, I was just thinking about the policy of establishing two separate avenues to ISDS for particular investors, with different standards under each. As Todd Tucker pointed out on twitter, TPP might have been a good opportunity to harmonize ISDS standards a bit. What appears to have happened, though, is that the number of standards has doubled (a "double standard"?) in certain circumstances, with two standards applying simultaneously. Presumably, the drafters could have folded NAFTA ISDS (and other FTA ISDS provisions) into TPP ISDS, simplifying things considerably. Now there are extra memos that have to be written comparing various aspects of the two processes, to decide which one to use. I see some benefits in that for a few of my friends, but still, I wonder if this is the right approach.
