Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

1
Prominent corporate law firms representing major businesses in the United States, Italy, Spain, and other nations are openly discussing the possibility of companies using a secretive and notorious legal process to sue countries over future profits lost due to government efforts to combat the coronavirus pandemic.

On Monday, the non-profit research group Corporate Europe Observatory (CEO) documented numerous examples of high-powered corporate law firms—including Ropes & Gray, Alston & Bird, and Quinn Emanuel Urquhart & Sullivan—publicly licking their chops over the lucrative opportunity presented by the Covid-19 crisis and government attempts to fight it.

Ropes & Gray wrote in an alert on its website on April 28 that "for companies with foreign investments," the investor-state dispute settlement (ISDS) system enshrined by thousands of trade agreements across the world "could be a powerful tool to recover or prevent loss resulting from Covid-19 related government actions."

"Governments have responded to Covid-19 with a panoply of measures, including travel restrictions, limitations on business operations, and tax benefits," the alert reads. "Notwithstanding their legitimacy, these measures can negatively impact businesses by reducing profitability, delaying operations, or being excluded from government benefits."

Lawyers from Sidley, a firm headquartered in Chicago, wrote on May 8 that "where a company prevails in its investment treaty claims, it may be able to recover all the losses that flowed from the government measures that damaged the company."

CEO noted that the ISDS system hands "sweeping powers to foreign investors, including the peculiar privilege to sue states in an arbitration court system." The ISDS chapter of the Trans Pacific Partnership was one of the most widely denounced components of the 12-nation trade deal that was ultimately never ratified by the U.S. Congress.

"In ISDS tribunals companies can claim dizzying sums in compensation for government actions that have allegedly damaged their investments, either directly through expropriation or indirectly through regulations of virtually any kind," CEO wrote. The number of ISDS suits has skyrocketed in the last decade, and so has the amount of money involved."

The research group highlighted several scenarios in which corporations could challenge countries over coronavirus-related government actions, including lowering drug prices, reducing rent and utility bills, temporarily nationalizing private hospitals, and providing access to clean water.

An Alston & Bird lawyer said during a recent webinar that "governments... forcing producers to sell drugs at significantly discounted prices and/ or taking the intellectual property for themselves and/or disseminating that intellectual property to third parties without permission" constitute "takings" that could be challenged under existing investment treaties.

"The lawyers' enthusiasm is not based in fantasy," CEO wrote. "In the past 25 years over 1,000 known investor-state lawsuits have been filed. Investors have won a significant amount of ISDS claims as arbitral tribunals ruled that it was illegal to interfere with prices of essential goods, restrict or tax the export of vital products, roll back incentives to investments—and the list goes on."

"As states struggle with the pandemic and with rebuilding their economies," the group warned, "ISDS cases could mean huge extra financial burden."

David Dayen, executive editor of The American Prospect, wrote Wednesday that progressives have long viewed ISDS as a disastrous system that allows powerful corporations to "lock in a low level of regulation or extract cash if any country dares to try to protect their citizens."

"It's so unbelievably shocking to see corporate lawyers actively discussing having foreign investors use ISDS to challenge countries over their coronavirus lockdown measures, and try to extract 'expected future profits' from them," Dayen wrote.

"There is no example yet of a foreign investor filing such a claim," Dayen added. "This bears watching, or maybe a pre-emptive strike to defuse this ticking time bomb. Incidentally, the Columbia Center on Sustainable Investment has proposed an ISDS moratorium during the pandemic."

The Transnational Institute (TNI), a think tank based in Amsterdam, is calling on governments to "take urgent action to make sure that transnational corporations and investment lawyers do not become beneficiaries of this pandemic, at the expense of people's well-being and health."

In an April 20 report, TNI urged nations to:

Suspend all trade and investment treaty negotiations;
Take all necessary steps to terminate (unilaterally or multilaterally) existing treaties;
Institute a comprehensive review (cost-benefit analysis) of their current and planned investment agreements;
Withdraw consent to ISDS, to limit immediate exposure to investor lawsuits;
Default on the payment of outstanding debts as a result of ISDS awards. Or, at least, discuss ISDS debt relief and/or debt restructuring with creditors.
"Just as the pandemic is revealing profound health inequities and the dangers of agro-industrial food systems, it is also showing the dangers of trade and investment systems that put corporate profits above health and life," TNI researchers wrote. "There is no place for trade and investment agreements that allow investors to profit from suing countries in crisis or seeking to cash-in from scarce public resources."
https://www.commondreams.org/news/2020/ ... er-profits

We are corporations we want profit above all, no matter who or what it hurts, except for our executives and major stockholders, the banks.
Facts do not cease to exist because they are ignored.-Huxley
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis Brandeis,

Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

3
"Let's kill all the lawyers" is a line from William Shakespeare's Henry VI, Part 2, Act IV, Scene 2. The full quote is "The first thing we do, let's kill all the lawyers".[1] It is among Shakespeare's most famous lines,[2] as well as one of his most controversial.[3] Shakespeare may be making a joke when character "Dick The Butcher" suggests one of the ways the band of pretenders to the throne can improve the country is to kill all the lawyers. Dick is a rough character, a killer as evil as his name implies,[1] like the other henchmen, and this is his rough solution to his perceived societal problem.[4] Whether Shakespeare sympathises with the line is ambiguous, and it has been interpreted in different ways: criticism of how lawyers maintain the privilege of the wealthy and powerful; implicit praise of how lawyers stand in the way of violent mobs; and criticism of bureaucracy and perversions of the rule of law.[5]
https://en.wikipedia.org/wiki/Let%27s_k ... he_lawyers

Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

4

I turn on the tube and what do I see
A whole lotta people cryin' "Don't blame me"
They point their crooked little fingers at everybody else
Spend all their time feelin' sorry for themselves
Victim of this, victim of that
Your momma's too thin; your daddy's too fat
Get over it
Get over it
All this whinin' and cryin' and pitchin' a fit
Get over it, get over it
You say you haven't been the same since you had your little crash
But you might feel better if they gave you some cash
The more I think about it, Old Billy was right
Let's kill all the lawyers, kill 'em tonight
You don't want to work; you want to live like a king
But the big, bad world doesn't owe you a thing
Get over it
Get over it
If you don't want to play, then you might as well split
Get over it, get over it

It's like going to confession every time I hear you speak
You're makin' the most of your losin' streak
Some call it sick, but I call it weak
You drag it around like a ball and chain
You wallow in the guilt; you wallow in the pain
You wave it like a flag, you wear it like a crown
Got your mind in the gutter, bringin' everybody down
Complain about the present and blame it on the past
I'd like to find your inner child and kick its little ass
Get over it
Get over it
All this bitchin' and moanin' and pitchin' a fit
Get over it, get over it
Get over it
Get over it
It's gotta stop sometime, so why don't you quit
Get over it, get over it
Get over it

Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

5
    CDFingers wrote: Thu May 21, 2020 10:38 am "How many divisions do they have?"

    See how it works. You only have to worry when the corporations own the armies. We're not there yet in America, and I doubt we ever will go there.

    CDFingers
    We have been there before just not in name. United Fruit Banana Wars in Central America, Gunboat diplomacy in China, occupation of Haiti and Santa Domingo by US marines multiple times and one tat I know of from my Dad. After WWII he signed on as a seaman to the Esso Tanker Richmond. When he signed on the master asked if he knew how to operate a Browning 50 cal machine gun. Dad had been a gunner on B-24s during the war. He said yes. They arrived in Cartagena, Columbia to take on some oil. Among the cargo being unload was Farm Machinery crates. Dad said they were identical to the crates 50 Cal. Machine guns were shipped in. One was open as it held a Browning 50 cal. He was asked by the Esso Rep in Cartagena if he would sign on to protect the oil pipeline from native attacks. He refused said he only fights in foreign countries wearing a US military Uniform. He came back to the US and re-enlisted in the Army Air Force. Esso had a mercenary army in South America right after WWII.

    They might not own the armies it the rent them unde the lend lease agreements with the CIA. :sarcasm:
    Facts do not cease to exist because they are ignored.-Huxley
    "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis Brandeis,

    Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

    6
    CDFingers wrote: Thu May 21, 2020 10:38 am "How many divisions do they have?"

    See how it works. You only have to worry when the corporations own the armies. We're not there yet in America, and I doubt we ever will go there.

    CDFingers
    All they need to do is call Erik Prince's new company Academi and they can rent a military force with all the accouterments.


    https://en.wikipedia.org/wiki/Academi

    Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

    7
    Don't forget there's a rifle behind every third mobile phone--in fact, in these parts most everyone knows someone who knows someone who has a no paper bullet hose. I'm more worried about voter complacency than I am of any option of armed insurrection or invasion in America. We won't go down without a fight, but we have to know there's a fight first. There's the rub.

    CDFingers
    Crazy cat peekin' through a lace bandana
    like a one-eyed Cheshire, like a diamond-eyed Jack

    Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

    9
    Basically this was one of the big problems tucked into the TPP that we all protested against during Obama’s era. The idea that corporations have a right to preempt national laws if they cut into corporate “profits” effectively would gut any national/state universal healthcare plan’s ability to bargain w Big Pharma and other medical industry producers. It’s problematic for democracy on the face of it but perfectly in line with corporatism.
    "It is better to be violent, if there is violence in our hearts, than to put on the cloak of non-violence to cover impotence. There is hope for a violent man to become non-violent. There is no such hope for the impotent." -Gandhi

    Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

    10
    TrueTexan wrote: Thu May 21, 2020 1:55 pm
      CDFingers wrote: Thu May 21, 2020 10:38 am "How many divisions do they have?"

      See how it works. You only have to worry when the corporations own the armies. We're not there yet in America, and I doubt we ever will go there.

      CDFingers
      We have been there before just not in name. United Fruit Banana Wars in Central America, Gunboat diplomacy in China, occupation of Haiti and Santa Domingo by US marines multiple times and one tat I know of from my Dad. After WWII he signed on as a seaman to the Esso Tanker Richmond. When he signed on the master asked if he knew how to operate a Browning 50 cal machine gun. Dad had been a gunner on B-24s during the war. He said yes. They arrived in Cartagena, Columbia to take on some oil. Among the cargo being unload was Farm Machinery crates. Dad said they were identical to the crates 50 Cal. Machine guns were shipped in. One was open as it held a Browning 50 cal. He was asked by the Esso Rep in Cartagena if he would sign on to protect the oil pipeline from native attacks. He refused said he only fights in foreign countries wearing a US military Uniform. He came back to the US and re-enlisted in the Army Air Force. Esso had a mercenary army in South America right after WWII.

      They might not own the armies it the rent them unde the lend lease agreements with the CIA. :sarcasm:
      I wanted to return to this.

      Of course the US military has been in service of multi national corporations since the 17th century. In service for the US. I think this corporate lawsuit thing is more in service of the corps than the country, so I want to show my "how many divisions" comment in that light. Some pile of smelly lawyers has convinced these bigwigs they can win. That escheat of lawyers will make money either way.

      I think we should remind ourselves of the Business Plot just to keep things in perspective.

      https://en.wikipedia.org/wiki/Business_Plot

      CDFingers
      Crazy cat peekin' through a lace bandana
      like a one-eyed Cheshire, like a diamond-eyed Jack

      Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

      11
      We can also be reminded by Gen. Butler’s speech and book. War is a Racket.

      The PDF

      https://www.academia.edu/13529283/War_ ... tler_1935_
      War Is a Racket is a speech and a 1935 short book, by Smedley D. Butler, a retired United States Marine Corps Major General and two-time Medal of Honor recipient. Based on his career military experience, Butler discusses how business interests commercially benefit, such as war profiteering from warfare. He had been appointed commanding officer of the Gendarmerie during the United States occupation of Haiti, which lasted from 1915 to 1934.

      After Butler retired from the US Marine Corps in October 1931, he made a nationwide tour in the early 1930s giving his speech "War is a Racket". The speech was so well received that he wrote a longer version as a short book published in 1935. His work was condensed in Reader's Digest as a book supplement, which helped popularize his message. In an introduction to the Reader's Digest version, Lowell Thomas praised Butler's "moral as well as physical courage".[2] Thomas had written Smedley Butler's oral autobiography.
      https://en.wikipedia.org/wiki/War_Is_a_Racket
      Facts do not cease to exist because they are ignored.-Huxley
      "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis Brandeis,

      Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

      12
      Back to the days of the old Dutch East & West India Companies...Company, Government, Police and Military all rolled into one--and fuck the people who live there.

      A long time ago, Marlin Brando starred in one of his least known, and, IMHO, best films, called "Burn!" about a guy hired to put down insurrections in a Portuguese(?) colony in either the 18th or 19th century (I saw the movie once, in 1974, so memory is a little vague), who then turns on the government/company. It was sad and terrifying, especially in light of these ghoulish vultures who will HAPPILY see millions or tens of millions suffer and die as long as their companies don't lose a nickel of profit.
      "Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

      Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

      13
      YankeeTarheel wrote: Fri May 22, 2020 12:36 pm Back to the days of the old Dutch East & West India Companies...Company, Government, Police and Military all rolled into one--and fuck the people who live there.

      A long time ago, Marlin Brando starred in one of his least known, and, IMHO, best films, called "Burn!" about a guy hired to put down insurrections in a Portuguese(?) colony in either the 18th or 19th century (I saw the movie once, in 1974, so memory is a little vague), who then turns on the government/company. It was sad and terrifying, especially in light of these ghoulish vultures who will HAPPILY see millions or tens of millions suffer and die as long as their companies don't lose a nickel of profit.
      The vultures that are happy suing nations will be almost as happy suing hospitals for profit loss.
      Massive Corporate Deals Are Making Hospitals’ PPE Shortages Worse
      "Amid shortages of PPE to fight coronavirus, some hospitals aren’t taking donations because they’re contractually obligated to exclusive suppliers. “[We’re] like fucking sitting ducks,” said one doctor. “Everything in health care is meant to benefit those who control the system.”

      The internal memo was circulated among staff at a California hospital on April 8. “All...clinicians and staff shall be issued one surgical mask to wear at all times while at work,” it read. “It is important that every clinician and staff member protect this mask, and utilize it for at least a week or longer, in order to help preserve our precious supply of PPE.” More than a month later, the memo is still in effect, said a doctor who received it and is treating COVID-19 patients. The PPE situation at that doctor’s hospital has not improved. What’s more, the hospital sent around a separate form that medical workers were encouraged to sign. It read, in part, “Any harm or loss to any other party as a result of infection caused by my actions shall be my sole responsibility, which I accept and assume. I expressly agree to indemnify and hold harmless the company, its client(s), and its contractor(s) against any and all claims, demands, damages, rights of actions, or causes of action, of any person or entity, that may arise from such infections caused by my actions.”

      “Basically, ‘If you get COVID [due to lack of PPE] and die, you can’t sue us,’” the California doctor said. “It would be like a firefighter trying to sue a fire department for sending him into a burning building without appropriate gear, and the firefighter having to sign off before they walk into the fire. I didn’t sign it.”

      At this point stories of PPE shortages are par for the course; multiple reports have emerged of hospital workers expressing concern over insufficient personal protective equipment, which puts them and their patients at risk. I’ve reported extensively on the topic. And yet the California doctor said the hospital system has not accepted donations of PPE. Its hands are tied—the doctor told me that the hospital has an exclusive contract with Medline, the largest privately held manufacturer and distributor of medical supplies in the United States. Even with Medline running short on PPE, the hospital isn’t turning elsewhere for necessary equipment. “We sat like fucking sitting ducks,” the doctor said. “Everything in health care is meant to benefit those who control the system...It is only about [corporations] and stockholders.”

      Over time the health care industry has come to rely on group purchasing organizations, or GPOs—legal entities that negotiate contracts with supply vendors on behalf of their members. According to JohnMatthew Douglas, founder of consulting company iPressForward, LLC, GPO members “may include, however may not be limited to, hospitals, health systems, home care companies, long-term-care facilities, physician groups, ambulatory care sites, etc.” GPOs are powerful because they can negotiate directly with suppliers to achieve “remarkable savings that impact the collective bottom line of U.S. health care.” In return GPO members—hospitals—may offer to buy exclusively from certain vendors “with up to 85% of purchasing contract commitments,” Douglas explained, potentially ensuring vendors’ bottom line in turn. A May 2019 study showed that GPOs save the health care industry up to $34.1 billion annually.

      “The more a GPO member spends with a particular vendor, the greater their savings may be, and the greater too is the administration-fee sum to the GPO,” Douglas said. “Sole-source contracts, a noncompetitive agreement that allows one entity to be the single provider,” as with Medline, “also come into play. The theory is that if a hospital or health system [can] control procurement and consolidate vendors...they are better positioned to obtain the lowest price point on the products and/or services procured for day-to-day operations.”

      “The contract serves a couple purposes: One, it keeps business flowing as usual, and two, it keeps the cost of goods down because of the economy of scale,” the California doctor said. “The more you buy, the lower the rate—Costco model on steroids.”

      Problems kick in when supply runs short, or when a supplier that’s been awarded an exclusive contract inflates prices artificially. “Imagine if iced tea companies were allowed to pay convenience stores,” said Dr. Marion Mass, a Philadelphia physician. “You’d have one iced tea company who would pony up enough to become the only supplier. And that tea company could charge what they like. The fact that the hospitals are not crying out means there’s something in it for them. You need to be able to see where the money is going, [but] the contracts between GPO and manufacturers and GPO and hospitals are hidden from the public.”

      At times that opacity can hide apparent conflicts of interest. For instance, Kevin W. Sowers was named president of the Johns Hopkins Health System on February 1, 2018. (He’s also the executive vice president of Johns Hopkins Medicine.) He has also served on the board of Vizient, a group purchasing organization, since 2017. Roughly a year after naming Sowers president, the Johns Hopkins Health System switched to Vizient as its group purchasing organization. At the time Johns Hopkins said Sowers had disclosed his board membership and recused himself from the selection process, which was conducted by a third-party consultant. A spokeswoman for Vizient noted that the group “has never paid its provider-based board members,” meaning, in theory, that the choice to use Vizient would not benefit Sowers financially.

      A CEO of a medical technology company said Vizient’s connection to Sowers is “in the weeds, but not in the public spectrum in a way that creates transparency and accountability.”

      Ultimately, said the California doctor, these types of arrangements negatively impact the people at the bottom of the totem pole: patients and frontline workers. “Until those at the head of corporate health care recognize that the business practices of a capitalistic model fundamentally conflict with the practice of medicine, we will fail to see a positive change,” the doctor said. “PPE is the tip of the iceberg and our health care system, the Titanic, is on a voyage to sink.”
      https://www.vanityfair.com/news/2020/05 ... ages-worse
      Facts do not cease to exist because they are ignored.-Huxley
      "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis Brandeis,

      Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

      14
      Read a depressing article about foreclosures of homes. Folks can't pay. Cerberus Capital swoops in and buys up cheap. Goal: own all housing in a century and turn everyone into indentured renters.

      Or we march with torches and pitchforks. Or we use the pitchfork to hold marshmallows that we roast over the torches. One.

      CDFingers
      Crazy cat peekin' through a lace bandana
      like a one-eyed Cheshire, like a diamond-eyed Jack

      Re: Corporate Lawyers Openly Discussing Suing Nations Over Profits Lost to Covid-19 Measures

      15
      CDFingers wrote: Fri May 22, 2020 2:21 pm Read a depressing article about foreclosures of homes. Folks can't pay. Cerberus Capital swoops in and buys up cheap. Goal: own all housing in a century and turn everyone into indentured renters.

      Or we march with torches and pitchforks. Or we use the pitchfork to hold marshmallows that we roast over the torches. One.

      CDFingers
      Rinse and Repeat 2008
      Facts do not cease to exist because they are ignored.-Huxley
      "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis Brandeis,

      Who is online

      Users browsing this forum: Ahrefs [Bot] and 3 guests