Fwd: Draft Trade TPs

From:jake.sullivan@gmail.com To: robbymook2015@gmail.com, john.podesta@gmail.com Date: 2015-03-05 21:05 Subject: Fwd: Draft Trade TPs

See note below that fed chairs have sent a letter. I want to make sure the national security letter is on pause! Begin forwarded message: > From: Michael Pyle <pyle_michael@yahoo.com> > Date: March 5, 2015 at 5:35:26 PM EST > To: Jennifer Harris <jennifer.m.harris@gmail.com>, Peter Harrell <pharrell@gmail.com> > Cc: Jake Sullivan <jake.sullivan@gmail.com>, Dan Schwerin <dschwerin@hrcoffice.com> > Subject: Re: Draft Trade TPs > Reply-To: Michael Pyle <pyle_michael@yahoo.com> > > CEA Chairs under the last seven Presidents -- including Ben Bernanke, Christy Romer, Alan Krueger, Austan Goolsbee, Laura Tyson, and Martin Baily -- just released an open letter to the bipartisan leadership of the Senate and House stating that TPA authority should be renewed and that trade agreements should not be used as vehicles to police currency manipulation. > > Text pasted below, section on currencies highlighted: > > ***** > > Dear Mr. Speaker, Mr. Leader, Madam Pelosi, and Senator Reid: > > International trade is fundamentally good for the U.S. economy, beneficial to American families over time, and consonant with our domestic priorities. That is why we support the renewal of Trade Promotion Authority (TPA) to make it possible for the United States to reach international agreements with our economic partners in Asia through the Trans-Pacific Partnership (TPP) and in Europe through the Transatlantic Trade and Investment Partnership (TTIP). Trade Promotion Authority provides for an up or down vote on these agreements, without amendments, and thereby encourages our trade partners to put their best offers on the table. > Expanded trade through these agreements will contribute to higher incomes and stronger productivity growth over time in both the United States and other countries. U.S. businesses will enjoy improved access to overseas markets, while the greater variety of choices and lower prices trade brings will allow household budgets to go further to the benefit of American families. > Trade is beneficial for our society as a whole, but the benefits are unevenly distributed and some people are negatively affected by increased global competition. The economy-wide benefits resulting from increased trade provide resources to make progress on important social goals, including helping those who are adversely affected. > Increased global economic engagement will enhance U.S. global leadership in line with our values. Indeed, trade agreements signed under both Democratic and Republican Presidents have included provisions to combat corruption and to strengthen environment and labor standards. > It is not desirable for trade agreements to include provisions aimed at so-called currency manipulation. This is because monetary policy affects the value of currencies. Attempts to penalize countries for supposedly manipulating exchange rates would thus impose constraints on U.S. monetary policy, to the detriment of all Americans. > We believe that agreements to foster greater international trade are in our national economic and security interests, and support a renewal of Trade Promotion Authority. > > > Alan Greenspan > > Charles L. Schultze > > Martin Feldstein > > Michael J. Boskin > > Laura D’Andrea Tyson > > Martin N. Baily > > R. Glenn Hubbard > > N. Gregory Mankiw > > Harvey S. Rosen > > Ben S. Bernanke > > Edward P. Lazear > > Christina D. Romer > > Austan D. Goolsbee > > Alan B. Krueger > > > > From: Jennifer Harris <jennifer.m.harris@gmail.com> > To: Peter Harrell <pharrell@gmail.com> > Cc: Michael Pyle <pyle_michael@yahoo.com>; Jake Sullivan <jake.sullivan@gmail.com>; Dan Schwerin <dschwerin@hrcoffice.com> > Sent: Thursday, March 5, 2015 4:09 PM > Subject: Re: Draft Trade TPs > > Attached are some notes from my conversation with Levin's folks. Please keep in close confidence. > > My recommendations: > > - She comes out in support of standalone currency provisions (something like S. 1619), where again, a WTO challenge could, worst case, only come when the law is applied. No one seems to be arguing that the bill is WTO illegal on the face of it (analysis included in the attached). Even as a mere option that could be exercised at will, I think it has some deterrence value. > > > > - She comes out in support of a currency mechanism in TPP that is "binding and enforceable" but need not be subject to TPP's current dispute resolution mechanism. A different dispute resolution could be created that would be less rigid than TPP's current dispute resolution mechanism but a step tougher than Lew's proposal. Seems too weedy to get into exactly what this might entail... but let me know if you disagree. I'd have to know more about how the current dispute resolution process in TPP is shaping up and about Lew's proposal. But it shouldn't be hard to find something in the middle. > > - On ISDS, she comes out in favor of tweaking ISDS to allow claims to be dismissed upon the agreement of both governments. > > - She comes out in favor of pharma / IP provisions that are something less than the current US offer. (To me, this should be tied to stronger SOE provisions than we're currently getting. But I realize the optics of having her appear as a backseat driver in what will be perceived as the details of these negotiations). > > > > > On Thu, Mar 5, 2015 at 12:04 PM, Peter Harrell <pharrell@gmail.com> wrote: > I agree with Jen that HRC should take a more robust stand on currency manipulation. A more robust stand could be within the TPP (indeed, I see a potential contradiction between arguing that the TPP is is needed to promote American interests in Asia and as a counterbalance to China's bad practices and a TPP text that does not address currency…). Or it could be for a bill that would authorize retaliation for currency manipulation. Or both. But I am very much with Jen that we need something more than the WH position. > > What about expressing support for legislation that would authorize (but not require) the President to impose countervailing duties where a multilateral institution--either the G20 or IMF--has determined that a country is deliberately manipulating its currency? Then it isn't just a Commerce Department determination, but there is a real and tangible stick. Mike--basically taking your bullet three, but linking it to a multilateral determination and then amping up the threat a notch? > > On Thu, Mar 5, 2015 at 4:13 PM, Jennifer Harris <jennifer.m.harris@gmail.com> wrote: > On currency, wanted to flag something I hadn't fully appreciated until yesterday --- which is the extent to which there is growing frustration with South Korea on its currency intervention and growing current account surplus (given KORUS, seems like signing a 2nd agreement in a short span of years with S Korea without currency protection could open us up to particular criticisms). Since its intervention... buying foreign vs domestic bonds... any currency provisions so tailored would seem to stay on the right side of targeting currency intervention without raising defensive concerns on domestic monetary policy. > > And I wouldn't take my legal word for it, but I remember digging into the WTO legality issue a couple years ago and seeing it differently (there were amply split camps... below is a couple para's on the Oct 2011 version... clearly some of that is speaking to a different moment... but much of it still holds). > > The question is also whether it would be litigated --- there are plenty of WTO provisions (e.g., the requirement around "substantially all goods" in terms of a market opening threshold, or the national security exemption) that have never been tested. This doesn't strike me as all that different. Nor would there seem to be terrible consequences to losing in the WTO. At worst, after many, many years of having the legislation (while we are negotiating these two very large agreements), we lose in the WTO... and the Hill passes a narrower version, perhaps very much along the lines of any lesser version we'd be considering here as a fall back. And its worth appreciating just how keenly aware the WTO is of the existential question marks surrounding their forward relevance. That will be on their minds as they are deciding any such case along these grounds, especially on the heels of the currency manipulation consultation that Brazil and others initiated several years ago. > > Lastly, there's the question of whether, given Zoellick's influence in the Jeb Bush camp, Jeb comes out for something more maximalist. Obviously Obama survived a general with this being more or less the case (Romney's "currency manipulator on Day 1"), so its doable ... just want to make sure that this possibility is fully in our calculus. > > Lastly, lastly -- longtime friend and Levin staffer reached out yesterday to see if I had time for a call today... I assume he wants to talk about where things are on the Hill... let me know if there are no go zones or particular things I should raise. > > Best, Jen > > > --------- > > > The Current Bill Is Narrow and Appropriate: S. 1619 differs in important respects from earlier iterations of the bill, which, in some instances, amounted to little more than a broad retaliatory tariff on Chinese products. The current draft is significantly narrower and has been drafted to be WTO compliant, though the Chinese may bring a WTO case if the law is enacted. As drafted, S. 1619 would (after China is found to have a fundamentally misaligned currency) require consultations with China, the IFM, WTO, and other countries; bar China from bidding on U.S. government contracts; disallow OPIC financing for projects in China; direct the US to disapprove new multilateral bank financing for China; direct changes in the damages calculations used for antidumping investigations; and several other specific actions. The bill would also hold out the prospect of a “remedial intervention” in international currency markets by the U.S. and like-minded allies. The bill would not simply apply a retaliatory tariff on Chinese goods or take other deeply protectionist measures. The bill also contains waiver authorities so that we can waive the required actions if in our national interest to do so. > > China Is Too Exposed to the U.S., and Too Beholden to International Opinion to Retaliate Too Aggressively. We should be clear that China will certainly retaliate, and may well challenge the Act in the WTO. While prevailing opinion suggests the Act is WTO-legal, we should still move quickly to shore up international opinion in support of the Act as legal from a WTO standpoint—if only to increase pressure on China to accelerate RMB appreciation. However, with the euro in a precarious position and no other bond market deep enough to satisfy China’s sterilization needs, the costs to China of any dumping of US treasuries – or even any sudden halt in future purchases – make this an unlikely scenario. Moreover, given high levels of global economic anxiety arising from an uneven recovery and a precarious Eurozone, international purchases of treasuries would provide an effective cushion for any sudden halt in Chinese purchases of treasuries. > > Finally, addressing these kinds of issues is necessary to keep domestic support for free trade: There is ample evidence from public opinion polling that support for free trade in the United States is on the decline. While some ebbing of support is inevitable during an economic downturn, failure to address major trade issues like China’s undervalued currency further erodes U.S. support for trade over time. If we are not perceived as addressing unfair trade practices that hurt the U.S., we won’t be able to maintain support for an affirmative trade agenda that advances our interests. > > > > > On Thu, Mar 5, 2015 at 9:39 AM, Michael Pyle <pyle_michael@yahoo.com> wrote: > Thoughts and cautions on language below. > > ****** > > First, though, since I can't help myself: I would dispute the idea that the existing approach hasn't borne results. > > ** The RMB has gone from roughly 30-40% undervalued when President Obama took office to roughly 5-10% undervalued today. China's current account surplus has gone from about 10% of GDP in 2007-08 to about 2% of GDP today. And to the extent Chinese authorities are intervening in currency markets right now, it's to prevent the market from pushing the RMB even weaker against the dollar. > > ** These results are in large part a reflection of constant bilateral diplomatic pressure from the United States, as well as global pressure from the IMF and G-20. (While it's true that getting G-20 action does require consensus -- which China obviously never itself provided -- the very fact of China being outnumbered 19-1 on its currency practices contributed materially to our ability to isolate China, apply bilateral pressure, and generate results.) > > ** All in, by the standards of international diplomacy, I guess this seems to me like a pretty substantial win for the existing approach! (Even if not a total win and one that requires ongoing vigilance.) > > ****** > > In terms of language, how about something like: > > ** So, we as a country must have better protections to make sure American workers aren't on the short end of currency manipulation elsewhere in the world. > > ** History has shown that the right approach on currency abuses is to not to go it alone, but bring to bear the full weight of bilateral and international diplomacy -- through the IMF and G-20 -- to isolate and pressure bad actors on the global stage. Everyone else loses when one country manipulates its currency -- and that creates an international dynamic that we have in the past and can in the future harness to generate results for American businesses and workers. > > ** But when push comes to shove, a President also needs the discretion to take sterner action against countries that persistently seek to gain economic advantage through currency undervaluation -- whether through duties or some other similar tool. Having the threat of such actions at the President's disposal is where we need to be to defend the middle class. > > ****** > > Personally, I wouldn't do bullet 3 without bullet 2. And it goes without saying that I think bullet 3 is risky, and that I wouldn't do if left to my own devices -- both because it sets up a dynamic that empowers Schumer and risks CVDs *without* much executive discretion, and because it endorses a tool in CVDs that if used would likely violate our WTO commitments and could create a world where other countries unilaterally retaliate against future Federal reserve actions they see as currency manipulation on our part. > > For what it's worth, I still think she'd get substantial credit just by saying bullet #1 alone -- and could avoid wading into the particulars of the wheres and whats, thus giving voice to progressive concerns while not limiting the Administration's flexibility on an issue where I think they're right on the merits. > > ****** > > I hope helpful. > > Mike. > > > > > > From: Jake Sullivan <jake.sullivan@gmail.com> > To: Michael Pyle <pyle_michael@yahoo.com> > Cc: Peter Harrell <pharrell@gmail.com>; Jennifer Harris <jennifer.m.harris@gmail.com>; Dan Schwerin <dschwerin@hrcoffice.com> > Sent: Thursday, March 5, 2015 6:55 AM > > Subject: Re: Draft Trade TPs > > Very helpful, both Mike and Peter. What HRC needs, fundamentally, is something that goes beyond the Rory formula and stops short of the Schumer formula. The previous IMF experience on this wasn't great and China is in the G20 and it operates by consensus! > > So the question is, could we add consultation and a period of cure, and then give president discretion to impose cvd? > > > > > >> On Mar 5, 2015, at 5:43 AM, Michael Pyle <pyle_michael@yahoo.com> wrote: >> >> Jake -- Spoke to Rory. >> >> **** >> >> In general: Timeline here seems to be getting pushed back. Hatch apparently has now indicated that he won't be dropping TPA legislation until April (as opposed to the "this week" the White House had been expecting until now). Negotiations are going on in bicameral, bipartisan setting -- and are taking longer than hoped, in large due to the sensitivity of the issues involved. Froman is apparently getting very nervous about overall timing in light of the delay here. >> >> **** >> >> On currency: TPA bill will apparently include a checklist of items that the agreement must include. The redlines for the Administration here are that currency cannot be "in the agreement" and/or that the agreement cannot be mandated to include "enforceable disciplines" on currency. They believe any inclusion in the agreement would be a poison pill that scuttles the negotiations with our TPP partners. >> >> They are okay with a sidecar to TPA mandating stronger currency protections outside the agreement -- but the redline here is that it not look like the Schumer bill (mechanistic determination on manipulation leading to countervailing duties after a specified period of enhanced negotiations). They believe the Schumer bill is not WTO compliant and is just generally terrible policy. In particular, they believe (like I do) that opening the door to hard unilateral countervailing duties invites incredible mischief in the international system, empowering individual countries to determine for themselves what constitutes "currency manipulation" (say, Fed QE -- which Brazil famously argued was the opening salvo in a global "currency war") and then unilaterally impose duties based on that unilateral determination. They think the Schumer formulation would as such do great damage to our longstanding efforts to entrench a global norm around the market determination of exchange rates. >> >> They would be fine with a provision that drafts the IMF and/or G-20 into currency enforcement -- perhaps mandating that Treasury seek input from the IMF on the extent of as well as behaviors giving rise to any persistent currency misalignment identified by Treasury and/or mandating that Treasury convene the G-20 Finance Ministers to discuss the same. Their view (again, which I share) is that the right way to achieve results on currency issues (and one that has borne fruit for us with China) is to confront an offending country with credible analysis from an international body and then to isolate that country in the G-20 and place bilateral diplomatic pressure on that country with the weight of the international community behind us. >> >> So, in terms of language in the relevant bullet, I might propose something like: >> >> So, [DELETE: "if we're going to sign any new trade deal" -- too close to suggesting that currency be "in the agreement"], we as a country must have better protections to make sure American workers aren't on the short end of currency manipulation elsewhere in the world. ADD: But the right approach is not for us to go it alone. The right approach is for us to bring to bear the full weight of the international community -- perhaps through the IMF and G-20 -- to isolate and pressure bad actors on the global stage. Everyone else loses when one country manipulates its currency -- and that creates an international dynamic on currency abuses that we have and can harness to generate results for American businesses and workers. >> >> **** >> >> On ISDS: Like me, Rory doesn't have strongly held views here -- and also like me, he did not feel he could offer a deeply considered assessment of the veracity of the Administration's talking points. >> >> I generally defer to you, Peter, and Jen on how to handle this one -- you all have far more knowledge and experience on it than me. >> >> My instinct, though, reading Peter's and Jen's analysis, is that if we want to break with the Administration on one of these issues, I'd rather do it on ISDS than on currency. >> >> **** >> >> I hope helpful. >> >> Mike. >> >> >> >> From: Peter Harrell <pharrell@gmail.com> >> To: Michael Pyle <pyle_michael@yahoo.com> >> Cc: Jennifer Harris <jennifer.m.harris@gmail.com>; Jake Sullivan <jake.sullivan@gmail.com>; Dan Schwerin <dschwerin@hrcoffice.com> >> Sent: Thursday, March 5, 2015 3:29 AM >> Subject: Re: Draft Trade TPs >> >> Greetings from Spain! >> >> Jake--to your question, I think that it is going to be tough to come up with something on ISDS "outside the agreement" to address concerns about ISDS; ISDS is very much an inside the agreement issue. (Unlike currency, where there are obviously ways of addressing it outside trade agreements). If someone else has a creative idea, that would be great, but I don't see a lot of ways to mitigate concerns about ISDS other than addressing those concerns inside trade agreement language. >> >> I think with ISDS and TPP there is a basic political question about how much HRC wants to break with the Administration. If she doesn't want to break significantly with the Administration, I think she's stuck either using the Admin's talking points on ISDS or answering the question with general answer along the lines of "ISDS has in the past had clear benefits for American investors overseas, as I said in my book, we are seeing more and more abuses of ISDS and the Administration needs to make sure that the ISDS provisions in TPP prevent abusive tactics from ever being used against the United States." That then puts the onus back on the Admin to try to modify ISDS a bit from the standard text, but also gives the Admin space to say "and yes, we are making sure ISDS in TPP addresses concerns about abuse." If HRC wanted to break with the Admin and come out more skeptical of ISDS, I share Jen's view that she should cushion the blow to to the business community by embracing more a more active posture in terms of the US government bringing cases (which I am sure she will favor across the board on trade issues). >> >> On the policy merits of ISDS, I generally agree with Jen. Historically U.S. investors got benefits from ISDS because it gave them protections in higher-risk overseas markets, and, practically speaking, the US did not have a concern that foreign investors in the U.S. would use ISDS against us. However, I that that the risk profile is changing and that the US faces significant, rising risks of ISDS being used against us by foreign investors in the future. I take Mike's point that most of the ISDS cases globally to date have been brought by European investors under European trade agreements, but this--like other successful litigation--strikes me as a trend that is likely to spread as companies and law firms build expertise in bringing cases. So I do think there is merit to Warren's concerns, and that, at a policy level going forward, the US needs to do a re-think on ISDS to come up with some new proposals that narrow ISDS and better protect national regulatory authorities. >> >> Peter >> >> >> >> On Thu, Mar 5, 2015 at 12:26 AM, Michael Pyle <pyle_michael@yahoo.com> wrote: >> Isn't the takeaway here on ISDS that we should be prepping to draw lines on TTIP rather than on TPP? And that as such we should signal concerns but do so in a way that's not a fly in the ointment for the Administration on TPP. Since they're never going to get TTIP done before the next Admin, I've long taken the view that we should feel much freer drawing new, harder lines for TTIP even as we take care not to make life more difficult for the Administration than necessary on TPP. >> >> Sent from my iPhone >> >>> On Mar 4, 2015, at 6:12 PM, Jennifer Harris <jennifer.m.harris@gmail.com> wrote: >>> >>> My take on ISDS below and attached. (Jake, you had asked me for some thoughts on ISDS a few weeks ago, both as it pertains to in TPP and more generally, I think; figured it worth re-sending for this group if we need to close in on an answer in the next day or so). >>> >>> The below is in 4 parts: the first part is some general concerns on using China as a marketing tactic for TPP (we should do it, but we should also come in behind it to a greater degree than has the Obama Admin); second is a summary of my own take on ISDS; third is my best guess on the question of whether the Administration would ever come around to scrapping ISDS on their own, and finally, a longer background piece on ISDS is attached. >>> >>> >>> Best, Jen >>> >>> >>> Seems like we need to steer course between owning TPP without seeming reflexively committed to more of the same / deaf to progressive concerns on trade ... here, no doubt, invoking China is as good a motivating tactic as we can hope to find --- I do hope, though, that any use of China as the motivating reason to pass TPP actually gets backed up by a meaningful economic strategy to deal with China's rise. Obviously one of my longstanding pet issues, but too often, we invoke this as a reason why we need to take some economic liberalization move.....except, if TPP were actually an exercise in solving for China, it would look a whole lot different in its prioritization and design choices than it does. Beginning with provisions on currency (here, I admit TPP may well be too far gone to add these, but agree with the Simon Johnson, Fred Bergsten, Jared Berstein, Dean Baker camp on this, and see it as regrettable misstep by Froman and the Administration). >>> Again, I'm not saying we shouldn't defend TPP on the merits (though its gotten harder with how the negotiations have gone in the past 14 months), or that we shouldn't go back to the well of using China as motivating tactic.... we should do both things... I'm just saying so invoking China is a tactic that Wall Street and the Chamber of Commerce use to justify their agenda when convenient, and entertain it only for a narrow slice of their priority issues. TPP or no, a better strategy to deal with China's economic rise would be to get a strategy to deal with China's economic rise. >>> Just my view, the headaches that the Administration is now facing on TPP were entirely predictable-- several of them pretty avoidable. HRC shouldn't have to be a more loyal foot soldier for these agreements now than she was when she was in the Administration. For one, they're different agreements now than they were 18 months ago. And she (we) raised some of these concerns that went unheeded. True, realizing this only counts for so much, but hopefully it indeed counts for something. >>> >>> ............. >>> >>> As TPP nears an endgame and opposition from some progressive groups heats up, among the most contentious of TPP’s provisions centers on investor-state dispute resolution (or ‘ISDS’). First introduced after WWII and included in all 41 U.S. bi-lateral investment treaties and most U.S. FTAs since, ISDS clauses essentially confer a set of privileges on private foreign invested companies and allow private companies to sue foreign governments directly, should these governments not live up to these standards of treatment. >>> >>> ISDS was originally created to protect businesses that invested in foreign jurisdictions where there may not have been robust democracies and legal systems, so that investors would have international redress if there was a coup, expropriation, or some other unforeseen negative impact on their business in the nature of sovereign risk. But in the past decade, the once-reasonable shield offered by ISDS clauses has become an offensive tool, exploited by some multinational corporations as a means of fighting rear-guard actions against court decisions, regulations, or changes in government policy that these firms find inconvenient. >>> >>> In my view, we should consider scrapping—or at least susbstantially amending— ISDS within TTIP and TPP for three reasons. One, abuse of ISDS is on the rise; but more fundamentally, ISDS has outlived its original utility (rule of law has made impressive gains in many places, especially Europe and Asia. Moreover, political risk insurance is easily procured on the private marketplace). Second, ISDS crept well beyond its original scope: it was originally intended for use in investor protection agreements, not market opening initiatives. Plainly, if we have concerns over the rule of law in a given country—a BIT and appropriately tailored ISDS may well be warranted. But an FTA with such a country is another thing altogether, and such rule of law concerns should give us pause. Finally, perhaps most important, stacked up against these narrow benefits—again, windfall to a few corporations who may like ISDS but no longer need it— there are real negotiating costs to ISDS. It affords a major talking point for those who are categorically wary of trade. And as more countries stiffen in opposition to ISDS, U.S. insistence on including it costs us trade-offs on other negotiating priorities of far more value to a wider cross-section of Americans (in my view, provisions on currency and tougher provisions on SOEs are prime example of negotiating casualties in the U.S.’ unswerving defense ofISDS) >>> >>> Moving away from (or meaningfully altering) ISDS could offer a meaningful signal of seriousness to progressives that you are for a fundamentally different kind of philosophy on trade and market liberalization going forward. As such a move would raise eyebrows among pro-business groups, it would need to be carefully calibrated to emphasize that it does not mark a move to protectionism or an abandonment of concern for U.S. business overseas. I am still looking into what such potential alterations to ISDS might usefully entail, but at minimum, changes should seek to should place more of the risks and costs of litigation back onto the firms bringing these cases; and to consider different presumptions and burden shifting for highly developed, capital exporting economies like those of TPP and TTIP. >>> >>> While it is not a complete solution, one means of softening blowback from any move to curb ISDS would be to couple this with a pledge to take up a more active state-to-state dispute posture by the U.S. Government – so that a greater percentage of legitimate claims would be taken up and litigated by the USG on behalf of aggrieved U.S. firms. A troubling trend concurrent with the rise of ISDS – and underscoring how ill-suited sometimes is to the modern challenges of state capitalism— is the way in which, in the era of ISDS, the USG has more or less gotten out of the business of bringing state-to-state investment disputes. Having essentially handed over the tools for self-help to private firms in the form of ISDS, for the past decade or more, there has been a powerful, if unstated assumption prevalent throughout the U.S. inter-agency that companies now have the ability to defend themselves, such that the US no longer needs to bring cases of its own. In this era of newly resurgent, newly global SOEs, and state dominated markets, however, the practicalities of ISDS leave US firms to fend for themselves against states with direct commercial interests of their own (SOEs, etc). Often, the “Jeff Immelt” factor – where a company knows that filing an ISDS claim against a given state will bring more pain in retribution, regardless of whether the claim succeeds— renders ISDS not worth the risks and costs. >>> >>> ------- >>> >>> As to the question of whether the Administration would ever voluntarily scrap it, depends on how tough their lot on the Hill gets. I asked Ted Alden (CFR colleague who covered US trade policy for years as a journalist) for his over-under on whether Froman would ever budge on ISDS (and/or currency) in either agreement. >>> >>> >>> Ted's view was that, certainly for TPP, Froman is more likely to bend to Congress on ISDS than on currency. Neither are especially great odds. And the fact that you don't yet have someone like Lori Wallach of Public Citizen making much common cause with Cato suggests that any real push on ISDS scrapping or reform isn't ripe. >>> >>> Most interesting, Ted didn't think that the Chamber would get too up in arms if Froman failed to go to the mat to protect ISDS (partly because we still have it in the Model BIT). >>> >>> ISDS is a bigger deal for TTIP, since European companies seem to be the ones bringing the most ISDS cases globally. >>> >>> As for what a modified version could look like, in their recent trade deal, the Canadians and the EU apparently came up with a watered down form of ISDS, so that could be a model for a progressive compromise on this. >>> >>> I know ISDS is something that Elizabeth Warren is particularly fired up over (on the logic that it could undermine Dodd Frank). Just brainstorming, but if she and HRC happened to agree on a modified version of ISDS to push, that could be interesting. >>> >>> The guru of all things ISDS is a guy named Lucas Peterson, and he runs a publication called Investment Arbitration Reporter (http://www.iareporter.com/). >>> >>> >>> On Wed, Mar 4, 2015 at 4:22 PM, Michael Pyle <pyle_michael@yahoo.com> wrote: >>> Got it - thanks. Let me see what I can dig up. >>> >>> >>> From: Jake Sullivan <jake.sullivan@gmail.com> >>> To: Michael Pyle <pyle_michael@yahoo.com> >>> Cc: Dan Schwerin <dschwerin@hrcoffice.com>; Jennifer Harris <jennifer.m.harris@gmail.com>; Peter Harrell <pharrell@gmail.com> >>> Sent: Wednesday, March 4, 2015 4:20 PM >>> >>> Subject: Re: Draft Trade TPs >>> >>> That we support a serious legislative proposal -- more than just some "mechanism" that doesn't do anything. >>> >>> >>> >>> On Wed, Mar 4, 2015 at 4:18 PM, Michael Pyle <pyle_michael@yahoo.com> wrote: >>> And what would you like to be able to say re currency? >>> >>> From: Jake Sullivan <jake.sullivan@gmail.com> >>> To: Michael Pyle <pyle_michael@yahoo.com> >>> Cc: Dan Schwerin <dschwerin@hrcoffice.com>; Jennifer Harris <jennifer.m.harris@gmail.com>; Peter Harrell <pharrell@gmail.com> >>> Sent: Wednesday, March 4, 2015 4:14 PM >>> >>> Subject: Re: Draft Trade TPs >>> >>> Any chance you can talk to him before 11 am tomorrow? >>> >>> >>> >>> On Wed, Mar 4, 2015 at 4:10 PM, Michael Pyle <pyle_michael@yahoo.com> wrote: >>> As I read the ISDS background docs from Caroline you sent, I think the Administration would argue that the TPP ISDS provisions meet the test that HRC sets out below -- i.e., they would argue that the worst abuses have taken place in agreements to which the U.S. is not a signatory, that nonetheless the TPP ISDS provision has been strengthened versus prior U.S. agreements, and that as a result the deal would not give corps or investors power to sue to weaken health or environmental regulation. >>> >>> Frankly, I've not been as close to this issue over time, so I don't have a deeply held assessment of these claims -- my prior would be not to empower Elizabeth Warren any further on this, though I'm curious as to Jen and Peter's views. >>> >>> I'll talk to Rory re currency. When do you need the input by? >>> >>> From: Jake Sullivan <jake.sullivan@gmail.com> >>> To: Michael Pyle <pyle_michael@yahoo.com> >>> Cc: Dan Schwerin <dschwerin@hrcoffice.com>; Jennifer Harris <jennifer.m.harris@gmail.com>; Peter Harrell <pharrell@gmail.com> >>> Sent: Wednesday, March 4, 2015 3:03 PM >>> >>> Subject: Re: Draft Trade TPs >>> >>> Thanks. >>> >>> We may need a sharper edge on NAFTA. >>> >>> And we definitely need a gameplan on currency, so please do see where things stand on that. I'd like to get pretty specific on what we would propose on currency. >>> >>> Any thoughts on ISDS? >>> >>> >>> >>> >>> >>> On Wed, Mar 4, 2015 at 2:55 PM, Michael Pyle <pyle_michael@yahoo.com> wrote: >>> Some thoughts in response -- >>> >>> 1. On China, Autor and others have highlighted just how significant the China effect was on US manufacturing during the 2000s. But I think the argument is not that China WTO accession was a mistake -- the mistake was the Bush Administration being asleep at the switch on currency manipulation, on WTO violations, on not putting surge safeguards in place. We didn't strike a bad deal on China -- the Bush Administration failed to use the protections in a fundamentally sound deal. >>> >>> On NAFTA, like the language that Dan just forwarded around from the book on the balanced trade we enjoy with formal trade partners, like Canada and Mexico. >>> >>> 2. We wrote the TP to leave some wriggle room on whether the currently negotiated provisions are themselves "state of the art." Point is, they need to be, that's our test -- but HRC is reserving judgment on whether TPP meets it until she sees the final deal. It's been more than 2 years since she left government and last saw the drafts, and we trust the Admin to strike the best possible deal ... but we're going to wait and see. >>> >>> 3. I'll follow up with Rory re latest on currency. We wrote the TP to be agnostic on the exact form that any currency provision needs to take -- i.e., as written it's intended not to take a view on maximalist Schumer bill vs. more modest Lew enhanced dialogue. As drafted, point was to enunciate a principle that currency protections need to be better -- while giving Administration maximum degree of flexibility to meet that standard. >>> >>> From: Jake Sullivan <jake.sullivan@gmail.com> >>> To: Michael Pyle <pyle_michael@yahoo.com>; Dan Schwerin <dschwerin@hrcoffice.com> >>> Cc: Jennifer Harris <jennifer.m.harris@gmail.com>; Peter Harrell <pharrell@gmail.com> >>> Sent: Wednesday, March 4, 2015 1:40 PM >>> >>> Subject: Re: Draft Trade TPs >>> >>> This is strong. Adding Dan, who will have better thoughts on the framing piece of it. Without getting into wordsmithing, three questions jump out: >>> >>> 1. Was letting China into WTO a mistake? Was NAFTA? ("We now know just how steep a price...." >>> >>> 2. Will the final TPP be good enough that HRC can credibly say it has "state-of-the-art protections...." and the rest of the litany? >>> >>> 3. What are you guys hearing about Jack Lew's work on currency and whether there is something she can support or call for? >>> >>> >>> >>> On Wed, Mar 4, 2015 at 1:15 PM, Michael Pyle <pyle_michael@yahoo.com> wrote: >>> Jake: See below draft TPs on trade / TPP / TPA from Jen, Peter, and me. Please let us know if you have any questions or comments. We hope helpful. Mike. >>> >>> ------- >>> >>> ** Getting trade deals, and especially now the Trans-Pacific Partnership, done and done right is a vital priority -- to open new markets and create a level playing field for American workers and businesses, to help build our potential for long-term economic growth, and also as an important demonstration of America's ongoing global leadership. >>> >>> ** As we've learned throughout our history, America is at its best on the global stage when it's building durable new institutions, founded on strong, forward-looking rules of road that promote trade, investment, and stability around the world. Doing so is especially important in today's moment and in a region like the Pacific basin, where the alternative to U.S. leadership is a future where the rules are written by China. This playing field -- making up 40% of global GDP -- is one we just cannot leave to China. >>> >>> ** But we must be sure -- even as we open new markets for U.S. exports and work toward key strategic goals -- that we never do so in a way that comes at the expense of the middle class. >>> >>> ** For example, for too long in the years before the crisis, America was viewed as the world's "consumer of last resort" -- and many countries kept their currencies weak and their exports cheap to tap American consumer demand. We now know just how steep a price we paid for cheap overseas goods last decade in terms of jobs and industries lost. >>> >>> ** This must not be allowed to happen again. We cannot stand by if our trading partners, from China to Europe, choose to pursue growth at our expense rather than reforming and growing their own economies starting at home. >>> >>> ** So, if we're going to sign any new trade deal, we as a country must also have better protections to make sure American workers aren't on the short end of currency manipulation elsewhere in the world. >>> >>> ** The same holds true on the need for any new trade deal to have state-of-the-art protections for labor rights, environmental and public health regulation, rules around the operation of state-owned enterprises, and dispute resolution procedures. >>> >>> ** We must also not shy away from the reality that -- even done correctly -- trade generates both winners and losers here at home. And that this implies a two-way deal: if we are opening markets and opportunity for the most competitive U.S. exporters, we also need to do much more to improve worker training and need to ensure that the companies benefiting the most from these new market opportunities aren't stashing away their gains in overseas tax havens. >>> >>> ** So ... It's vital that we are getting new trade deals done, most especially the TPP. It's important both for our economic potential -- and for our leadership in the world. But it's essential that any deal we strike is putting in place genuinely unsurpassed standards reflecting our core values, learning the lessons of the past 25 years, and prioritizing the wellbeing of the middle class. >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> <Investor State Dispute Settlement in TPP and TTIP.docx> >> >> >> >> -- >> Peter E. Harrell >> (202) 276-4739 >> pharrell@gmail.com > > > > > > > -- > Peter E. Harrell > (202) 276-4739 > pharrell@gmail.com > > >