Bloomberg & Gates Create Fund to Defend Nations from Big Tobacco Litigation

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March 18, 2015; The Guardian

In light of our coverage of The Lancet’s series of articles on ridding the world of tobacco, we take note of the announcement from Bloomberg Philanthropies and the Bill & Melinda Gates Foundation of a $4 million fund, the “Anti-Tobacco Trade Litigation Fund,” to help nations pay for legal advice when their anti-smoking measures are challenged by the tobacco industry.

As we noted, the tobacco industry is not giving up with a fight, and part of that fight involves expanding the tobacco market into other countries. Interestingly, the Guardian article by its health editor, Sarah Boseley, notes that “the tobacco industry has invoked trade agreements” to fight against health warnings in Uruguay and “plain packaging” in Australia.

A statement from Margaret Chan of the World Health Organization explains the importance of the Bloomberg-capitalized fund:

“In an ominous trend, in some countries the battle between tobacco and health has moved into the courts. […] Governments wishing to protect their citizens through larger pictorial warnings on cigarette packs or by introducing plain packaging are being intimidated by industry’s threats of lengthy and costly litigation. This is an effort to deprive governments of their sovereign right to legislate in the public interest.”

With the litigation against Uruguay and Australia, it seems that the tobacco industry has internationalized the SLAPP suit—a strategic lawsuit against public participation—moving it from a tool meant to silence individual or nonprofit critics to a weapon to scare off governments from bothering to do battle with the multi-billion dollar tobacco producers. Given the billions in profits big tobacco makes from spreading its product lines, they will fight.

But the brief comment that the tobacco companies have invoked trade agreements in their cause raised the connection to NPQ Newswire’s commentary about the emerging Trans Pacific Partnership (TPP) trade agreement and President Obama’s support (and that of the strange, unknown pro-TPP coalition we wrote about) for fast-track authority in negotiating and presenting trade agreements to Congress. Although the public hasn’t yet seen the provisions of the TPP because it is being negotiated in secret, one widely discussed principle of the TPP would give foreign corporations the right to sue the U.S. government, bypassing domestic courts, to challenge laws that they deemed as frustrating their investment privileges.

That provision also goes the other way too, authorizing U.S.-based corporations to sue foreign governments they see as putting legal roadblocks, such as health and environmental laws and regulations, in their way. According to Public Citizen, that is just what the North American Free Trade Agreement (NAFTA) included in its provisions:

“NAFTA allows corporations to sue the national government of a NAFTA country in secret arbitration tribunals if they feel that a regulation or government decision affects their investment in conflict with these new NAFTA rights. If a corporation wins, the taxpayers of the ‘losing’ NAFTA nation must foot the bill.”

Last December, Manuel Pérez-Rocha of the Institute for Policy Studies described “investor-state suit” provisions in trade agreements, noting that Mexico and Canada have each lost several such suits under NAFTA, El Salvador had to pay $1.77 billion to Occidental Petroleum, and Venezuela was ordered to fork over $1.6 billion to Exxon. “Foreign investors can sue over alleged violations of myriad ‘investor protections,’ including public-interest regulations that would reduce their profits,” Pérez-Rocha wrote in a New York Times op-ed. “Equally troublesome, tribunal operations are often opaque.”

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“Investor-state dispute settlement” (ISDS) is a typical provision in trade agreements, which is one reason why they are so popular with big corporations even when, like the TPP, the agreement is unseen and won’t be made public until, perhaps, after it is signed by President Obama and his counterparts from the participating TPP nations. One would think that it would basically apply to situations like the Venezuela case where the government nationalized foreign-owned oil facilities, but the frequent use of ISDS to challenge governmental regulations that the corporations don’t like is an expansion of its scope. According to Toby Landau, an arbitration lawyer experienced in ISDS cases, “They are covering all forms of governmental activity wherever that activity might have an adverse impact on a foreign investment, for example cigarette packaging, regulation of carbon emissions, nuclear policy and taxation.” That is exactly how Australia found itself on the wrong end of a suit from Philip Morris due to an ISDS provision in a bilateral trade agreement between Hong Kong and Australia.

The venue for the resolution of these corporate suits is the International Centre for Settlement of Investor Disputes (ICSID), created by the World Bank in 1966 as part of the Bank’s effort “to promote international investment by providing confidence in the dispute resolution process.” That confidence in these trade agreements comes from circumventing the domestic courts and challenging the regulations and policies of nations signing trade agreements like the TPP.

The ISDS provisions of the TPP, most assuredly in this secret treaty because that is what corporate investors want as much as anything else in “free trade” pacts, are what leads to the kind of tobacco suits against Australia and Uruguay. At the same time Bloomberg announced the creation of the Anti-Tobacco Trade Litigation Fund, Bloomberg Philanthropies also announced its 2015 Global Tobacco Control Awards. The winners were the Brazil Ministry of Health and National Institute of Statistics, the Regional Life Advocacy Center in Ukraine, the Nepal Ministry of Health and Population, KONFOP in Russia, the Philippines Department of Finance and Department of Health, and, ironically, the Uruguay Ministry of Health. For promoting the TPP and its corporate-empowering provisions, the Obama administration and the ersatz Progressive Coalition for American Jobs aren’t among this year’s honorees.—Rick Cohen

  • David E.H. Smith


    But, If Not Bill Gates; or, President PUTIN, ‘The WHITE KNIGHT’, then Who Do YOU Want to Bankroll the Saving of the harmless NON shareholders of the World from Fast Tracking TPP’s, CETA’s (TTIP) Secret ‘Death-Star-Chamber’ Tribunal Penalties?
    Will China, Iran, the Muslim World, et al, Support Putin in Suits?
    How about Warren Buffett, &/or, the ‘coveted’ Hong Kong investor, et al?

    Gain a political ‘Smidge’, Lose (‘Hidden’ & Secret Costs) a Lot; The NET EFFECT. How many Years will Paying Tribunals’ Penalties Bush Back tour Retirement Date?
    Global Corporate Economy Conniving to Get Harmless NON Shareholders to Pay Trillion$ in Court Costs, Punitive ‘Penalties’, etc.?
    No Treaties = Corporations/SHAREHOLDERS pay for Their Own ‘Mistakes’.

    How Many Preferred Shares of TPP, C-CIT, TTIP, CETA, et al, Generated Enterprises are You Selling your Right to Sue the Global Corporate Economy for? ‘New’ Shareholders Can Say ‘NO’ to & Over-Rule TPP, CETA, TTIP, et al, Plans?

    Will corp.’USA’ et al, & Feds to Prepay $Billions for All ‘Trade’ Treaty/’Arrangements’, et al, Secret (‘Death-Star-Chamber) Tribunals’ Punitive Damages to Protect Home State’s Taxpayers? Other States, Municipalities, et al, “…(we) need to control corp. USAs ‘Contributions’ “.

    Undemocratic, Higher Taxes & More Cuts to Services to Pay Secret Penalties; NON Shareholders Have to Pay corporates USA, Germany, France, Japan, Australia, Canada, et al, & their SHAREHOLDERS.

    It will be good for, not only the NON shareholders of the enterprises that can be generated by the on-going global ‘cooperation’ of corporate treaties, agreements, partnerships, et al, including the Trans Pacific Partnership, the EU – Canada CETA, TTIP, the China – Canada Investment Treaty, et al,
    for the potential shareholders, as well,
    who are quite interested to know if President Xi Jinping (China) will support Russia as a co-member of B.R.I.C.S. when President Putin uses his potential role as ‘The White Knight’.

    And, while President Putin’s potential support as ‘The WHITE KNIGHT’ in the development of the TPP, et al, litigation below can dramatically off-set the hundreds of billions of dollars due to the present & future sanctions leveled by American led, et al, corporations & financial institutions via their governments’ signing their global corporate economic treaties/’arrangements’,
    and the potential for making trillions of dollars for the Russian economy over the next 30 – 40 years & beyond,
    are the citizens (SHAREHOLDERS & NON shareholders) of Germany & JAPAN just being prudent in wanting to wait for the outcome of:
    1) The Submission to The SUPREME COURT of CANADA & the highest court in Germany, et al, to make their findings regarding ‘The Submission’:
    ‘The SHAREHOLDERS & Corporations of AMERICA, CHINA, Japan, Germany, Canada, et al
    the harmless Canadian NON shareholders, both; Native & non Native, et al’?

    2) ‘The MERKEL (Chancellor of Germany) Letter; To Sue, or, Be Sued?’ ?

    Have the federal representatives of the nations that are the potential signatories of TPP, TTIP, et al, willingly provided the NON shareholders of US, Canada, Europe, the Trans Pacific nations, et al, with the aforementioned information? Are the federal representatives, et al, depriving the NON shareholders of Canada, et al, of the due diligence information that enables the family of the NON shareholders of Canada, et al, to make informed decisions regarding their financial planning?

    And, would a reasonable person conclude by a preponderance of the evidence, &/or, beyond a reasonable doubt, that these documents, et al, demonstrate that the SHAREHOLDERS of AMERICA, CANADA , the EU & Trans Pacific nations, et al, really do not care which NON shareholders pay them the punitive penalties, etc., by way of their secret (‘Death-Star Chamber’) TRIBUNALS, as long as its not the SHAREHOLDERS who pay & not their corporations regardless of which country the corporations:
    1) operating from,
    2) maintain their headquarters,
    3) use to do their cyber banking, accounting, ‘taxation’, etc.
    4) et al?

    And, re; the CHINA – Canada Investment Treaty (C-CIT), et al, is it understandable why the ‘coveted’ Hong Kong investor & his associates are ‘concerned’ with the aforementioned findings of The SUPREME COURT of CANADA, et al, & the effects of the potential findings, et al, on the EU, AMERICA, the Trans Pacific nations, et al, treaties with CHINA, et al?

    In regard to arms sales (and other ‘contentious’ products & services & investors, repatriating profits, et al) ; how about the sale of arms (non nuclear) in general in regard to the ‘trade’ treaties that are continuing to be secretly negotiated and how will the Tribunals, both; B.R.I.C.S. & non BRICS, adjudicate, decide & penalize the NON SHAREHOLDERS for the sale of legitimate, semi- legitimate & ‘illegal’ sales of arms within the signatories nations & the those of others, &/or, unaligned? Of particular, interest is China, which does have an treaty with Canada, which puts China ‘at odds’ with other arms manufacturing & nuclear powers that it (China) does not have any ‘arrangements’ with.
    Are these types of questions that your politicians & the corporate lobbyists calls ‘forget-me-nots’ (‘Buyer Beware’) that will be (maybe) worked out after the fast tracked signatures are obtained?

    And, what do you think is the significance of the line in The Submission to The Supreme Court of Canada ‘…And, lest one forgets that the revelation of the present perilous international treaties/’arrangements’ began with the regard for the rights of Native Canadians as per the Treaties/’arrangements’ that corporate Canada & the Government of Canada have ‘foisted’ upon Native Canadians…’? What are the various ways that this line will cost the SHAREHOLDERS, et al?

    On the other hand, it may be worth repeating yet again,
    ‘What the TREATY of VERSAILLES was to the 20th century PALES in COMPARISON to the TPP, CETA, C-CIT, NAFTA, et al, in the 21st’.

    And, how will YOUR submission to YOUR highest court IMPROVE upon The Submission that is presently before The Supreme Court of Canada?

    David E.H. Smith
    – Researcher
    – ‘Qui tam…’
    Also see; ‘SECRET TPPartnership, CETA & C-CIT TRIBUNALS are INSIDER TRADING… ‘
    Please consider sharing the enclosed information & questions with 10 members of your family, friends, associates in order that they can use the due diligence info to make more informed decision about their families’ financial planning, & then they can share it with 10 others…
    For more Information & Questions re; The Relationship between Human (Nature) Rights & Economics by way of the C-CI Treaty, the CET Agreement, TPP, et al, and The WAD Accord