To explain this I am first going to discuss another undemocratic instrument, the Ontario Municipal Board. The OMB is a court that developers have access to when they want to contest municipal planning decisions and regulation. The OMB is unelected and unaccountable. Its decisions are final.
Developers use the OMB both as a threat to encourage municipal governments to act in the interests of developers and as a tool to set aside municipal decisions they are unhappy with. So while “Ontario Municipal Board” might sound like it serves municipalities in some way, what it does in fact is administratively overrule the democratic processes in Ontario municipalities.
By way of example, Ajax has a municipal plan that was a result of a good deal of research and, well, planning. But those plans were based on the public interest and adopted by a democratic government. They do not take into account what might temporarily be the most profitable for a particular developer. So developers take the town to the OMB to have democracy overruled. And even if they do not succeed, they put the town to what might often be considered insupportable expense.
ISDS provides a much more horrifying example of this kind of court. At least the OMB operates under the Ontario government. Parliament could redefine or abolish the OMB if it found it necessary. TPP member states would never have such recourse with respect to ISDS. Litigation is expensive; punitive decisions burdensome. And no state has any recourse except to pay and pay, or make undemocratic decisions that represent extraterritorial corporate interests, not those of the public.
Liberal MP David Lametti, who obviously supports the TPP and CETA, says that ISDS is “part of the democratic process…and frankly it’s a healthy part of the process, if it forces governments to reflect on what they do and what they think they should do.”
This is a terrifying prospect. That Lametti thinks it reasonable that governments trying to act in the public interest should reflect on what punishments they might face in doing so is appalling. Moreover that Lametti does not understand democracy to be government acting exclusively in the best interest of its citizens without prejudice from private or corporate interests fills me with dread.