In April, I mentioned an exchange between Senator Sheldon Whitehouse (D-RI) and U.S. Trade Rep. Katherine Tai on getting rid of ISDS in existing investment treaties/trade agreements. There was a bit of uncertainty about what exactly Tai meant, but now we have some additional context thanks to a FOIA request filed by the U.S. Chamber of Commerce for communications between USTR officials and the office of Senator Elizabeth Warren (D-MA). The Chamber was focused on digital trade policies, but the USTR FOIA reply also included some exchanges on ISDS.
The first ISDS communication from the Biden administration came in response to a letter sent by Warren, Rep. Lloyd Doggett (D-TX) and others to Tai and Secretary of State Antony Blinken in May 2023 (which I blogged about at the time), in which the members of Congress call for removing the consent to arbitrate and removing ISDS provisions from existing trade agreements and investment treaties. Tai's response (p. 83 of the FOIA reply) states the following:
President Biden does not believe corporations should receive special tribunals in trade agreements that are not available to other organizations, and he opposes the ability of private corporations to attack labor, health, and environmental policies through ISDS. I share these views, and the United States is not currently pursuing any trade or investment agreements that would establish ISDS.
Then in October 2023, there was an email from someone in Senator Warren's office to people at the State Department, who later brought in a USTR person and therefore the whole exchange was included in this set of communications (p. 175 of the FOIA reply), discussing the use of APEP as a forum to deal with ISDS removal:
I'd like to specifically discuss the [State] Department's role in ISDS and its thinking about pathways to removing ISDS from the US's existing FTAs, BITs, etc. and the potential use of APEP as a forum for that. We of course appreciate the Department's commitment to opposing the inclusion of ISDS in future agreements, but existing ISDS obligations continue to pose a problem for us and our trading partners.
And then finally, in response to a letter from Warren, Rep. Steve Cohen (D-TN) and others, Tai said the following in December 2023 (p. 209 of the FOIA reply):
Your letter further raised the idea of removing ISDS provisions from the United States' existing trade and investment agreements, including through the Americas Partnership for Economic Prosperity (APEP). I look forward to working with you and other Members of Congress to identify the best path forward, recognizing the role of Congress in amending existing agreements.
I'm not sure any of this tells us where we are going on ISDS, but it will at least help us explain how we got there!
