This is from Inside US Trade:
One business source said the Keystone ISDS claim definitely complicates the TPP approval process, but should be “manageable.” This source said the administration will likely fight back against criticism by arguing that the Keystone claim is frivolous and by highlighting the changes it secured to the TPP investment language.
Whatever your take on the case, I'd be wary of suggesting that the Keystone claim is "frivolous." Reasonable people may disagree on the chances of success for this claim, but I think a fair estimate is somewhere between a 25% and 75% chance of TransCanada winning. I can see why you might think TransCanada won't win, but surely there are enough decent arguments it can make to give it at least a 25% chance. So, even if you question the strength of TransCanada's claim, it's hard to characterize it as frivolous.
My own estimate is somewhere just above 50%, based on what I know now. (I'm sure I will learn a lot more during the briefing stage, if we get there).
With regard to the changes to ISDS in TPP, my sense is they are so negligible that they would not have any impact on those percentages. But perhaps someone can convince me they would bring down TransCanada's chances by 5% or so, if the TPP standards were to be applied to this case.
