Trade Deals and Fair Trade

Stewart Hosie Excerpts

Wednesday 11th March 2020 Westminster Hall

[Stewart Hosie (Dundee East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Stringer. I congratulate the hon. Member for Swansea West (Geraint Davies) on securing this important debate.

I do not think anyone in this room would disagree that trade needs to be free, or that trade needs to be fair. I thank the hon. Gentleman for expanding what we mean by fairness. We are not just talking about ensuring that there is fairness between an investor and the state, or fairness for developing countries—by, for example, stopping the illegal dumping of excess goods to the detriment of their own economies. We need to ensure that there is fairness in subsidies and state aid, fairness in competition and fairness for Governments. That can be done by ensuring that businesses pay their taxes and that Governments are not restricted, or perceived to be restricted, in legislating for the common good. Fairness for citizens involves ensuring that corners are not cut and that standards—be they social or employment standards, product safety or food standards, or environmental standards—are upheld, so that we all play fair with the environment and do what we can to combat climate change.

To ensure there is a level playing field and fairness in all these areas, the Scottish National party’s view is that trade deals need arbitration and dispute resolution mechanisms that work not simply for investors, but for all of us. It is instructive that in its negotiating mandate for the UK-EU free trade agreement, the European Union has said that each of the areas I have mentioned should be subject to a dispute resolution mechanism. It is equally instructive to note that the UK Government—certainly at this stage in the negotiations—are trying to exclude subsidies, competition policy, labour laws, the environment and tax from any dispute resolution mechanism. If the UK’s Government’s intention is to exclude those important matters from arbitration, I am not convinced that it will fill the public with confidence that the Government are serious about fairness and a level playing field.

[John Howell]

The hon. Member mentions dispute resolution. I declare an interest: after recent training, I am a mediator. Dispute resolution is an integral part of all current commercial negotiations, so I am not surprised to see it in these agreements.

[Stewart Hosie]

Nor am I, but I am surprised and slightly disappointed that the UK Government’s stated intention is to exclude certain important matters from dispute resolution or arbitration. But—and this is a big but—not all arbitration and dispute resolution mechanisms are the same. Although the SNP will continue to support the inclusion of all the aspects of modern trade deals that I have mentioned, we would be deeply concerned if other future trade deals implemented the one-sided ISDS-type mechanisms that the hon. Member for Swansea West mentioned.

[Geraint Davies]

I am following the hon. Gentleman’s speech closely, and I agree with what he is saying. Does he agree that it is imperative that the UK stands up for dispute resolution mechanisms that include social and environmental matters and other areas beyond investment, as a precedent for when the EU—and indeed the UK, which is in a much weaker position—talks to the US or China? The EU will be the future of fair trade globally.

[Stewart Hosie]

Of course I agree with that. It is important that the wide range of issues that form the basis of modern trade deals—not simply tariffs and quotas—are included. As I have said, however, not all arbitration mechanisms are the same, and I would not want one that operated on the basis of the secret ISDS-type schemes that we have seen.

That is primarily because of the potential restrictions that such mechanisms could place on Governments, including the UK Government, in legislating even on public health, for example. To demonstrate, I will give two brief examples of how ISDS-type arrangements are unfair and limit the Government’s ability to act in the interests of citizens. The examples are not new and the information has been around for some time.

In the first case, between 1995 and 1997, the Canadian Government banned the export of toxic polychlorinated biphenyl waste to comply with their obligations under the Basel convention, to which the United States was not a party. Waste treatment company SDMyers sued the Canadian Government for $20 million in damages under chapter 11 of the North American free trade agreement, which included an ISDS-type arbitration scheme. The claim was upheld by a NAFTA tribunal even though Canada had acted to comply with an international treaty—that is quite extraordinary.

In the second case, in April 1997, the Canadian Parliament banned the import and transportation of the petrol additive methylcyclopentadienyl manganese tricarbonyl, because of concerns that it posed a significant public health risk. Ethyl Corporation, the additive’s manufacturer, sued the Canadian Government—again under NAFTA chapter 11—for $251 million, to cover losses resulting from the “expropriation” both of its plant and its “good reputation”. The claim was upheld by the Canadian dispute settlement panel, and the Canadian Government repealed the ban and paid Ethyl Corporation $15 million in compensation.

Those cases involved toxic PCB waste and a petrol additive that was deemed to have an impact on public health. In my view, it is quite wrong and unfair for large corporations to be able to sue Governments simply for taking steps to protect the wellbeing of their citizens, or for enacting public health measures that they believe to be right and fair, and for which they may well have an electoral mandate.

Although we welcome new trade deals, they need to be fair. As has been said, the process of agreeing them needs to be transparent and inclusive. For example, it must formally involve, at all stages, the Scottish Government and other devolved Administrations; and approval must be sought from and granted by Members of Parliament. That mirrors the point about democracy that the hon. Member for Swansea West made.

A clear understanding is required that although genuine dispute resolution mechanisms are vital for delivering fairness, free-trade agreements that include secret ISDS-type courts that limit, or appear to limit, the ability of Governments at any level to act in the best interests of their citizens are wrong, unfair and profoundly unacceptable.