This is from Ted Posner, who left it as a comment, but I'm putting it in a separate post:
My comment concerns the relationship between "investment damages" and "trade damages." Take a look at article 9.28.2 of the newly released TPP text. It states "for greater certainty" that a prevailing investor/claimant "may recover only for loss or damage that it has incurred in its capacity as an investor of a Party." This appears to be addressed to the criticisms that some had of the NAFTA award in Cargill v. Mexico. Some perceived the tribunal to have awarded Cargill compensation for diminished trade as well as compensation for harm to its investment. The TPP text appears to be intended to tell future tribunals not to do that. Query, however, whether that really is what the Cargill tribunal did. Query also how a tribunal is to go about distinguishing between loss or damage to a claimant "in its capacity as an investor" and in any other capacity. Consider another case from NAFTA's early days -- the SD Myer case, in w hich an Ohio-based company sued Canada over alleged losses from Canada's decision to prohibit exportation of PCBs. This upset SD Myer's business model, which had entailed removal of PCBs from Canada and remediation of them back home in Ohio. SD Myer prevailed. Was the harm to it harm in its capacity as a US investor in Canada or in its capacity as a trader?
