This is from Inside US Trade:
During a meeting with their U.S. counterparts this week, Canadian negotiators will pitch the elimination of the deal’s investor-state dispute settlement provision -- and the U.S. is expected to agree to that proposal, allowing for what private-sector and congressional sources called a “win” for U.S. Trade Representative Robert Lighthizer in one of his priority areas in the talks.
The decision to yield to Lighthizer’s demands on ISDS was described as part of a larger bargain in the negotiations, opening the door for possible U.S. concessions on Canadian and Mexican priority areas, these sources said.
...
White House officials over the weekend shared the prospect of an agreement on the elimination of ISDS with the business community and offices on Capitol Hill, prompting one trade association to organize what a source called an “emergency call” to inform companies of the Canadian proposal and the expected U.S. reaction.
One objection might be that eliminating ISDS would violate Trade Promotion Authority. The 2015 TPA statute, which governs the NAFTA renegotiation, says the following about investment protection:
SEC. 102. TRADE NEGOTIATING OBJECTIVES.
...
(b) PRINCIPAL TRADE NEGOTIATING OBJECTIVES.—
...
(4) FOREIGN INVESTMENT.—Recognizing that United States law on the whole provides a high level of protection for investment, consistent with or greater than the level required by international law, the principal negotiating objectives of the United States regarding foreign investment are to reduce or eliminate artificial or trade distorting barriers to foreign investment, while ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States, and to secure for investors important rights comparable to those that would be available under United States legal principles and practice, by—
(A) reducing or eliminating exceptions to the principle of national treatment;
(B) freeing the transfer of funds relating to investments;
(C) reducing or eliminating performance requirements, forced technology transfers, and other unreasonable barriers to the establishment and operation of investments;
(D) seeking to establish standards for expropriation and compensation for expropriation, consistent with United States legal principles and practice;
(E) seeking to establish standards for fair and equitable treatment, consistent with United States legal principles and practice, including the principle of due process;
(F) providing meaningful procedures for resolving investment disputes;
(G) seeking to improve mechanisms used to resolve disputes between an investor and a government through—
(i) mechanisms to eliminate frivolous claims and to deter the filing of frivolous claims;
(ii) procedures to ensure the efficient selection of arbitrators and the expeditious disposition of claims;
(iii) procedures to enhance opportunities for public input into the formulation of government positions;
and
(iv) providing for an appellate body or similar mechanism to provide coherence to the interpretations of investment provisions in trade agreements; and
(H) ensuring the fullest measure of transparency in the dispute settlement mechanism, to the extent consistent with the need to protect information that is classified or
business confidential, by—(i) ensuring that all requests for dispute settlement are promptly made public;
(ii) ensuring that—
(I) all proceedings, submissions, findings, and decisions are promptly made public; and
(II) all hearings are open to the public; and
(iii) establishing a mechanism for acceptance of amicus curiae submissions from businesses, unions, and nongovernmental organizations.
Given this requirement, would it be possible to exclude investment protection/ISDS entirely? If there is a concern about this, how about the following workaround. They add a provision that says something like, "We will begin negotiations on an investment treaty, either trilaterally or bilaterally, after completion and national ratification of the trade part of this negotiation." TPA definitely requires that something be done on investment. But does it have to be done at the exact same time as the trade aspects? Can trade and investment just be separated?
UPDATE: Based on other reporting, I'm starting to have doubts as to exactly what Canada might be proposing here. But my question and suggestion on TPA still stand.
