A couple days ago, I posted about Biden's responses to trade questions from the United Steelworkers. Here's what he said about ISDS:
I don't believe that corporations should get special tribunals that are not available to other organizations. I oppose the ability of private corporations to attack labor, health, and environmental policies through the Investor-State Dispute Settlement (ISDS) process and I oppose the inclusion of such provisions in future trade agreements.
And here's how I interpreted what he said:
It seems pretty clear that ISDS will not be in future Biden trade agreements.
I see now that there are some other interpretations out there. Here are a few quoted in a Law360 article:
"I don't find the statement that he made in the questionnaire particularly surprising," said Marney Cheek, co-chair of Covington & Burling LLP's international arbitration practice, who was formerly an associate general counsel at the U.S. Trade Representative's office. "I would expect any Democratic candidate to be very focused on ensuring that whatever system we have would protect labor rights and environmental standards."...
... Biden's position in the questionnaire "isn't too far off" the position the Obama administration had during the second half of the administration, according to Akin Gump Strauss Hauer & Feld LLP partner Stephen S. Kho, whose practice focuses on international trade policy and international dispute resolution.
...
"My sense is that antipathy to ISDS got a real infusion of energy from the debate over TPP, which Obama made a signature trade initiative of his administration, and became a target for anti-Obama forces on the left (led at the time by [Massachusetts Sen. Elizabeth] Warren) and the Trump movement on the right," said Robert Howse, the Lloyd C. Nelson Professor of International Law at New York University School of Law.
...
... the wording pointing to "labor, health, and environmental policies" suggests that sovereignty could be a factor, Howse noted.
By the same token, however, it's worth noting that Biden's audience here is a labor union, according to Kho.
So what did Biden's response on ISDS really mean? He certainly stated things broadly enough that he could backtrack a bit and include a scaled down version of ISDS in a trade agreement if he wanted to. For example, he could say something like: "My specific concern was about labor, health, and environmental policies, and we have changed the rules to make sure those policy areas will not be challenged successfully, so ISDS will be included." Or he could propose expanding ISDS to groups other than "private corporations."
My somewhat definitive take that ISDS will be out of Biden's trade agreements was based on more than just the wording of his response, however. I'm not going to claim that this is in any way scientific, but reading the general atmosphere surrounding ISDS in U.S. political circles these days, I just can't see how it ends up being in a new trade agreement. We don't know what the Senate will look like after the 2020 election, but it seems certain that the House of Representatives will still be controlled by the Democrats, and I don't see how the House Democrats would go for new ISDS provisions after getting a significant pull back in this area in USMCA. But we'll see.
