PHM-Exch> PHM-Exchange Digest, Vol 135, Issue 1
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----- Original Message -----
From: phm-exchange-request at phm.phmovement.org
To: phm-exchange at phm.phmovement.org
Sent: Wednesday, August 19, 2020 10:50:56 PM GMT-07:00
Subject: PHM-Exchange Digest, Vol 135, Issue 1
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>Today's Topics:
>
> 1. Fwd: Invitation for Webinar: Availability of and
> Accessibility to Biologics (Gargeya Telakapalli)
> 2. UNICEF/ WHO: World Breastfeeding Week (Claudio Schuftan)
> 3. Spanish: Petici?n Vacuna Univarsal y Gratuita Covid-19
> (Claudio Schuftan)
> 4. Covid Vaccine: Theshort spring of solidarity (Claudio Schuftan)
> 5. Investor-state dispute settlements (ISDS) enable TNCs making
> more money from losses (Claudio Schuftan)
> 6. (Re-)Making a People?s WHO (Claudio Schuftan)
> 7. Re: Investor-state dispute settlements (ISDS) enable TNCs
> making more money from losses (Ryz Tyb)
>
>
>----------------------------------------------------------------------
>
>Message: 1
>Date: Sun, 2 Aug 2020 15:27:14 +0530
>From: Gargeya Telakapalli <gargeya.t at phmovement.org>
>To: PHM-Exchange at phm.phmovement.org
>Subject: PHM-Exch> Fwd: Invitation for Webinar: Availability of and
> Accessibility to Biologics
>Message-ID:
> <CAJPhbN3ft=ipVEiGiGDBS2atF6cbkCQy2d=nqoCed8eLZvwuvA at mail.gmail.com>
>Content-Type: text/plain; charset="utf-8"
>
>*ONLINE WEBINAR*
> Availability of and Accessibility to Biologics:
> Implications for Covid and beyond
>
>
>*WEDNESDAY, 5th AUGUST 13:30 hrs GMT*
>
>*REGISTER HERE*
><https://phmovement.us10.list-manage.com/track/click?u=bae4d025803eddf4b6026a20c&id=ae3acfd275&e=8e109da099>
>
>
>Over the past few months, some antibody treatments which are part of
>Biologics, along with other treatments, are being looked at as potential
>cure for the corona virus.
>
>Apart from Covid19, Biologics including monoclonal antibodies have also
>been known to target diseases which, hitherto, had very limited or no
>available treatment options.However, one of the major constraints in their
>accessibility has been their high costs.
>
>This webinar discusses the scope and status of biologics in the ongoing
>Covid19 response and beyond it. The discussion would touch upon such
>aspects as manufacturing, regulation and intellectual property which need
>to be addressed to make biologics accessible and affordable.
>
>*Speakers:*
>*Prof. Dr. H. (Huub) Schellekens*
>Professor of Pharmaceutical Biotechnology at Utrecht University
>*Chetali Rao*
>Lawyer specializing in Patent, Access to Medicines and Health issues.
>*Organisers*
>People?s Health Movement (PHM)
>Third World Network (TWN)
>Register Here
><https://phmovement.us10.list-manage.com/track/click?u=bae4d025803eddf4b6026a20c&id=633dac0530&e=8e109da099>
>[image: Facebook]
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><https://phmovement.us10.list-manage.com/track/click?u=bae4d025803eddf4b6026a20c&id=1a88b9ee8d&e=8e109da099>
>*Copyright ? 2020 People's Health Movement, All rights reserved.*
>You are receiving this email because you opted in via our website.
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>*Our mailing address is:*
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>Message: 2
>Date: Sat, 1 Aug 2020 22:15:14 +0700
>From: Claudio Schuftan <cschuftan at phmovement.org>
>To: phm-exchange <phm-exchange at phm.phmovement.org>
>Subject: PHM-Exch> UNICEF/ WHO: World Breastfeeding Week
>Message-ID:
> <CAKpaG8g-+ZzrDKTc98+jJVLow=BLq+hnhEtvs+vnJhT=rvZyuQ at mail.gmail.com>
>Content-Type: text/plain; charset="utf-8"
>
>From: anwar fazal <anwar.fazal at gmail.com>
>
>
>
>
>https://www.who.int/news-room/detail/31-07-2020-world-breastfeeding-week-2020-message
>
>See also
>
>https://waba.org.my/wbw2020-social-media-kit/
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>------------------------------
>
>Message: 3
>Date: Sun, 9 Aug 2020 09:39:41 +0700
>From: Claudio Schuftan <cschuftan at phmovement.org>
>To: phm-exchange <phm-exchange at phm.phmovement.org>
>Subject: PHM-Exch> Spanish: Petici?n Vacuna Univarsal y Gratuita
> Covid-19
>Message-ID:
> <CAKpaG8iP-Cw0=wmxC=kPT0TYr6hZ2N0VCRhWCo0jmwLFjfWBAw at mail.gmail.com>
>Content-Type: text/plain; charset="utf-8"
>
>From: Susana Esther Ratti <ratti.susana at gmail.com>
>
>
>Reenv?o esta petici?n redactada por Norberto Liwski y Adolfo P?rez Esquivel
>para que sea difundida y firmada su adhesi?n.
>
>Petici?n por Vacuna Universal y Gratuita Covid-19.
>El mundo vive una situaci?n dif?cil de controlar ante una enfermedad que se
>va descubriendo de a poco. Ante la posibilidad de encontrar una vacuna es
>imperativo solicitar con s?lidos fundamentos la universalidad y gratuidad
>de ella ya que la salud es un derecho y no una mercanc?a.
>
>Por ello reenv?o esta petici?n redactada por Norberto Liwski y Adolfo P?rez
>Esquivel para que sea difundida y firmada su adhesi?n.
>
>
>PETICION_POR_VACUNA_UNIVERSAL_Y_GRATUITA_COVID_19_1.pdf
><https://gmail.us3.list-manage.com/track/click?u=db2738e6ea1a8bc147e00f27e&id=70d5bf1914&e=d8eb7d1299>
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>------------------------------
>
>Message: 4
>Date: Tue, 18 Aug 2020 14:15:51 +0700
>From: Claudio Schuftan <cschuftan at phmovement.org>
>To: phm-exchange <phm-exchange at phm.phmovement.org>
>Subject: PHM-Exch> Covid Vaccine: Theshort spring of solidarity
>Message-ID:
> <CAKpaG8jkLthyPWK+iLDuZw7VgCEnjRvFsATNxzHyAhcrNEvtEA at mail.gmail.com>
>Content-Type: text/plain; charset="utf-8"
>
>While official speeches emphasize international solidarity in containing
>the corona pandemic, many countries are focusing on national solutions for
>vaccine research.
>
>>From Andreas Wulf (Medico Intl and PHM)
>
>The Russian government is playing at full risk. The first nationally
>approved vaccine Sputnik 5 against the Corona virus has immediately
>attracted strong international criticism, as no transparent data have been
>made public and the relevant phase 3 studies have only just begun[1]
><#_ftn1>. Nobody knows whether this "Sputnik moment" for Putin will not
>turn into a "Challenger Disaster" if the vaccine turns out to be less
>effective or has even dangerous side effects. But at the same time
>countries are already queuing up to test and use this vaccine, the
>Philippine President Duterte wants to be the first to test it and if it
>works for him, it will be good for the whole country[2] <#_ftn2>.
>
>This development of a vaccine nationalism can be seen as a counterpoint to
>the brief 'spring of solidarity' when, on 4 May, the WHO and the European
>Commission called with great fanfare for joint global fundraising for the
>fight against the coronavirus. An impressive 15.9 billion euros were raised
>until today, almost half of which was contributed by "Team Europe" - the
>European Commission, the EU member states and the European Investment Bank
>[3] <#_ftn3>. The event was also memorable because Emmanuel Macron and
>Angela Merkel designated a coronavirus vaccine as a "global public good".
>And EU Commission President Ursula von der Leyen stressed that "governments
>and global health organisations are pulling together in the fight against
>the coronavirus".
>
>
>
>*International solidarity?*
>
>It sounded as if solidarity was written in capital letters. Already in
>April, the WHO presented its "Access to COVID-19 Tools (ACT) Accelerator"[4]
><#_ftn4>, an ambitious structure with the most important global health
>partnerships, in which the development of vaccines, drugs and diagnostics
>as well as their procurement and distribution were to be accelerated and
>coordinated. This should also help prevent a deja-vu of the experience with
>the H1N1 influenza pandemic in 2009: There should not be a repeat of the
>race for access to the vaccine, with the rich countries winning out while
>the poorer countries are supplied with "humanitarian crumbles" by the WHO.
>
>The U.S. government left this seemingly global alliance early on by
>publicly launching a national ambitious vaccine program for local
>pharmaceutical companies. Operation Warp Speed, which is worth ten billion
>US dollars, is to develop and produce hundreds of millions of vaccine doses
>by January 2021 at the latest, primarily for its own use, but also for the
>rest of the world. But the USA is not the only country that is distancing
>itself from the ACT Accelerator. Neither the Russian government with its
>Sputnik 5 nor the Chinese government, which also promise an early success
>of their own vaccine developments[5] <#_ftn5>, have joined the WHO's
>Accelerator Initiative so far. India is also holding back, which is all the
>more momentous because Indian vaccine production is currently the most
>important in the Global South.
>
>
>
>*Who is closest to himself*
>
>So the full-bodied invocation of global solidarity lasted only briefly. And
>with every further announcement of a promising vaccine candidate, the
>fa?ade continues to crumble. For it is becoming increasingly clear that
>global production capacities are also limited and may not be able to be
>increased as quickly. This is exactly what the WHO initiative wants to
>prevent. Not only the US government, also the "Inclusive Vaccine Alliance
>of Germany, France, Italy and the Netherlands", for example, has made its
>own deals with pharmaceutical companies for purchase guarantees and
>delivery quantities for successful vaccine candidates. The EU Commission
>has taken over the current negotiations with Sanofi-GSK[6] <#_ftn6>.
>Politicians like von der Leyen like to use phrases like "nobody is safe
>until everyone is safe". But when it comes to getting out of the social and
>economic crisis as quickly as possible, their own citizens are still a
>little closer than the world community.
>
>And so the COVAX Facility, the vaccine pillar within the ACT Accelerator,
>which is organized by the WHO together with the Global Alliance for
>Vaccines and Immunisation (GAVI) and the Coalition for Epidemic
>Preparedness Innovations (CEPI), is making little progress towards a global
>"buying and distribution pooling mechanism" for effective Covid19 vaccines.
>COVAX is currently focusing on a portfolio of nine vaccine candidates from
>different vaccine classes (DNA/mRNA; viral vectors, proteins). Through
>agreements with research institutions and companies that will produce the
>vaccines in the USA, Europe, China and Australia, the risk of having backed
>the wrong horse in the end is to be minimized. In addition, this
>multinational cooperation is intended to ensure that a promising product is
>ultimately cheaper than if individual countries negotiate with
>manufacturers alone. The experience of the Global Fund in the pooled
>procurement of AIDS / TB /Malaria drugs is the inspiration here.
>
>As a sign of global solidarity in the Covid19 crisis, the COVAX Facility
>aims to support the financially weakest countries with funds from global
>and national development budgets in the procurement of the vaccine. So far,
>however, no financial commitments have been made. And among the 75
>countries that have at least signalled a possible participation in the
>budgets, most of the financially strong countries with their own vaccine
>production capacities are missing - in Europe, for example, the
>heavyweights France, Italy, Great Britain and Germany[7] <#_ftn7> .
>
>
>
>*Priority supply*
>
>But even in the COVAX Facility, not all countries would be equal. The plan
>for the global distribution of a vaccine envisages, as a first step, the
>simultaneous supply for 3% of the population in every country, which should
>mainly include "indispensable key persons", i.e. health, nursing and other
>professionals, in a first step... Subsequently, in further tranches, 20
>percent of the respective populations are to be provided with the vaccine,
>with particular attention being paid to risk groups such as the elderly and
>the chronically ill. However, "self-paying countries" are already granted
>priority supply in this second procurement round, while countries dependent
>on aid funds must wait until corresponding quantities can be produced and
>paid for. On the way to a population-wide supply, the differences in
>availability are widening more and more.
>
>It is also unclear whether GAVI actually has the authority to negotiate
>successfully with the pharmaceutical companies. There has been and still is
>great criticism of the fact that the manufacturers are also represented
>with a seat and vote on the GAVI board. Experience from the price and
>supply negotiations for the pneumococcal vaccines - GAVI's flagship project
>- raises doubts: even after years, there is no real price competition
>between the few manufacturers; the profits are enormous[8] <#_ftn8>.
>
>
>
>*Selfishness also harms the rich countries*
>
>Sothe COVAX Facility is anyway only a model of "Solidarity light". But
>even for this one, six months after the beginning of the pandemic, there is
>no sufficient global support. Instead, competition and mutual accusations
>are intensifying. US and British governments are accusing Russia and China
>of stealing vaccine data. It may be convenient for the European states to
>point the finger at the US president and his "America first" policy.
>However, they do not want to be reminded that they are not honouring their
>own commitments. It is to be expected that the selfish impulses in the
>fight against the pandemic will hinder the longer-term strategy also for
>the technologically advanced states. This is because the production and
>supply chains have long since been globalized, even in vaccine production -
>even states such as the USA are dependent on secure trade and supply
>contracts. And even if a country could protect itself, it remains dependent
>on the world with its sales markets and suppliers. If there were an "Island
>of the Blessed", it would also suffer from a prolonged global recession and
>a continuing pandemic[9] <#_ftn9>.
>
>At the beginning of August, WHO Director-General Dr. Tedros emphasized once
>again that in all probability there would be no "silver bullet", i.e. a
>vaccine that is one hundred percent effective in all people[10] <#_ftn10>.
>This is one of the reasons why it would be in the "enlightened
>self-interest" of all players to consistently rely on cooperation. The fact
>that the German government is not involved in either the COVAX initiative
>or the Covid19 Technology Patent Pool for the global benefit of health
>knowledge shows how questionable the role of a self-proclaimed "Global
>Health Champion" is.
>
>------------------------------
>
>[1] <#_ftnref1>
>https://www.themoscowtimes.com/2020/08/12/russias-covid-19-vaccine-breaches-crucial-scientific-and-ethical-international-standards-a71121
>
>[2] <#_ftnref2>
>https://www.dw.com/en/philippines-duterte-volunteers-to-be-putins-coronavirus-vaccine-guinea-pig/a-54523030
>
>[3] <#_ftnref3> https://global-response.europa.eu/index_de
>
>[4] <#_ftnref4> https://www.who.int/initiatives/act-accelerator
>
>[5] <#_ftnref5>
>https://www.nytimes.com/2020/08/02/world/europe/russia-trials-vaccine-October.html
>; https://www.nature.com/articles/d41586-020-02244-1
>
>[6] <#_ftnref6>
>https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1439
>
>[7] <#_ftnref7>
>https://www.who.int/news-room/detail/15-07-2020-more-than-150-countries-engaged-in-covid-19-vaccine-global-access-facility
>
>[8] <#_ftnref8>
>https://msfaccess.org/analysis-and-critique-advance-market-commitment-amc-pneumococcal-conjugate-vaccines
>
>[9] <#_ftnref9>
>https://www.foreignaffairs.com/articles/united-states/2020-07-27/vaccine-nationalism-pandemic
>
>[10] <#_ftnref10>
>https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---3-august-2020
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>------------------------------
>
>Message: 5
>Date: Wed, 19 Aug 2020 12:16:21 +0700
>From: Claudio Schuftan <cschuftan at phmovement.org>
>To: phm-exchange <phm-exchange at phm.phmovement.org>
>Subject: PHM-Exch> Investor-state dispute settlements (ISDS) enable
> TNCs making more money from losses
>Message-ID:
> <CAKpaG8hi9SwEhbNV1vL++PKNBTqBuYVT3oyT-Woxgc4Th2s47w at mail.gmail.com>
>Content-Type: text/plain; charset="utf-8"
>
>From: Jomo <jomoks at yahoo.com>
>
>*ISDS enables making more money from losses *
>
>*Jomo Kwame Sundaram*
>
>
>
>KUALA LUMPUR: With the Covid-19 contagion from late 2019 spreading
>internationally this year, governments have responded, often in
>desperation. Meanwhile, predatory international law firms are encouraging
>multimillion-dollar investor-state dispute settlement (ISDS) lawsuits
>citing Covid-19 containment, relief and recovery measures.
>
>
>
>*Sharing the pain*
>
>Most governments failed to introduce sufficient precautionary measures
>early enough to prevent Covid-19 contagions from spreading. And when they
>did act, they often believed they had little choice but to impose
>nationwide ?stay in shelter? lockdowns to enforce preventive physical
>distancing.
>
>To enable businesses and households to survive the adverse effects of such
>lockdowns, governments have provided relief measures, for at least some of
>those believed to have been adversely affected, especially for businesses
>better able to lobby effectively.
>
>Meanwhile, there are already thousands of mainly bilateral investment
>treaties as well as bilateral and plurilateral trade agreements worldwide,
>enabling foreign investors to sue governments before private arbitration
>tribunals to profit from their wide-ranging treaty rights.
>
>Transnational corporations (TNCs) can claim staggering sums in damages for
>alleged investment losses, for either alleged expropriation, or more
>typically, indirect ?damage? caused by regulatory changes, in this case,
>Covid-19 government response measures.
>
>As some such measures try to share the burden of the crisis, e.g., with
>asset owners and other contracting parties, the international law firm Shearman
>& Sterling
><https://www.shearman.com/perspectives/2020/04/covid-19-international-investment-protection?sc_lang=ja-JP>
>advises
>financial firms, ?While helping debtors, these measures would inevitably
>impact creditors by causing loss of income?, referring to debt relief and
>restructuring efforts among others.
>
>Foreign registered real estate or property companies can also sue
>governments that protect lessees or tenants who cannot make their lease or
>rent payments as contractually scheduled after their operations are shut
>down or disrupted by emergency regulations imposed.
>
>Pharmaceutical and medical supplies companies can also appeal to such
>arbitration tribunals to claim losses due to price controls and ?violated?
>intellectual property rights for Covid-19 tests, treatments, medical and
>protective equipment as well as vaccines.
>
>
>
>*Lucrative ISDS lawsuits*
>
>In recent months, international law firms have been encouraging ISDS
>lawsuits citing government measures to check contagion and mitigate their
>economic consequences, urging clients to invoke investment and trade
>agreements to claim for allegedly lost income or additional losses or costs
>due to new government policy measures.
>
>Another firm Ropes & Gray
><https://www.ropesgray.com/en/newsroom/alerts/2020/04/COVID-19-Measures-Leveraging-Investment-Agreements-to-Protect-Foreign-Investments>
>advises:
>?Governments have responded to COVID-19 with a panoply of measures,
>including?limitations on business operations, and tax benefits.
>*Notwithstanding
>their legitimacy*, these measures can negatively impact businesses by
>reducing profitability, delaying operations or *being excluded from
>government benefits*?For companies with foreign investments, investment
>agreements could be a powerful tool to recover or prevent loss resulting
>from COVID-19 related government actions.? [my italics]
>
>Shearman & Sterling
><https://www.shearman.com/perspectives/2020/04/covid-19-international-investment-protection?sc_lang=ja-JP>
>advises,
>?Some interventions will be protectionist?they will seek to support or
>benefit domestic enterprises (strategic or otherwise) but not foreign
>investors?, without mentioning their generally far lower tax contributions
>and generous investment incentives enjoyed.
>
>
>
>*Profiting from the pandemic *
>
>After advising clients to look out for discriminatory measures which could
>become the bases for such claims, law firm Sidley
><https://www.sidley.com/en/insights/publications/2020/05/investment-treaty-claims-for-covid19-losses>
>warns
>governments that proceedings can be very costly as ?it is not only the
>actually invested amounts that can be considered recoverable damages, but
>also lost future profits?.
>
>Such law firms remind their clientele that many of the more than thousand
>ISDS lawsuits filed worldwide have arisen during political or economic
>crises. Covid-19 pandemic response measures are now being widely studied as
>possible pretexts for another round of lawsuits.
>
>These corporate lawsuits can impose massive fiscal burdens on governments.
>As Pia Eberhardt <https://longreads.tni.org/cashing-in-on-the-pandemic>shows,
>legal costs average well over US$6 million per party, but can be much
>higher. Hence, such suits can drain government fiscal resources.
>
>Although it becomes much more expensive if governments lose, they still
>have to cover their own legal expenses even if they do not lose. As of
>2018, governments had been ordered to pay US$88 billion for settlements
>made public.
>
>There is considerable scope for such cases given the still growing, broad
>range of government Covid-19 measures, e.g., foreign-owned water supply
>companies can sue governments for insisting that more public water supply
>sources be provided, or household water supplies remain uninterrupted, even
>if water bills are not settled, to enable more regular hand washing.
>
>
>
>*ISDS undemocratic, illegitimate*
>
>International investment law is generally independent of national
>legislatures and biased toward TNC interests. Investment agreements
>prescribe foreign investor rights and privileges very broadly, but their
>duties and obligations, usually rather minimally.
>
>Sovereign national societies, parliaments and governments have considerable
>scope for discretion in addressing complex political issues involving
>diverse social and economic interests. Also, national courts generally do
>not award damages for lost future profits as these are considered
>completely conjectural.
>
>But ISDS provides much more favourable treatment to powerful TNCs. Also,
>international arbitration tribunals ignore and undermine the legitimate
>scope for national courts, law-making and democratic government
>decision-making.
>
>The typically transnational arbitration tribunals that interpret such law
>generally ignore recent legal developments, which take more account of the
>rights and responsibilities of various other stakeholders in national
>societies. Thus, arbitration awards tend to be much more lucrative, for
>both TNCs and their lawyers, than ordinary national court decisions.
>
>A South Centre Southview
><https://www.southcentre.int/wp-content/uploads/2020/08/SouthViews-Sornarajah-1.pdf>
>urges
>considering various measures in response to the threat such as terminating
>or suspending investment treaties, withdrawing consent to arbitration,
>statutorily prohibiting recourse to arbitration and appealing to TNCs?
>corporate moral responsibility
>
>Already, there are growing appeals for an immediate moratorium on ISDS
>lawsuits and to end ISDS proceedings involving Covid-19 emergency measures,
>while some countries, e.g., India, South Africa and Indonesia, had scrapped
>some of their bilateral investment treaties even before the crisis.
>
>The Southview opinion also chides the United Nations Commission on
>International Trade Law (UNCITRAL) for trifling with marginal reforms,
>instead of radically reconsidering the very illegitimacy of international
>investment arbitration itself.
>https://www.ksjomo.org/post/isds-enables-making-more-money-from-losses
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>------------------------------
>
>Message: 6
>Date: Thu, 20 Aug 2020 10:27:41 +0700
>From: Claudio Schuftan <cschuftan at phmovement.org>
>To: phm-exchange <phm-exchange at phm.phmovement.org>
>Subject: PHM-Exch> (Re-)Making a People?s WHO
>Message-ID:
> <CAKpaG8geZArU=EcOcJ-Cq9Q8briAR1YGAvBTJ2EafXqcOrgRPw at mail.gmail.com>
>Content-Type: text/plain; charset="utf-8"
>
>From: Lexi Nolen <lexibambas at hotmail.com>
>*From:* spiritof1848 at googlegroups.com <spiritof1848 at googlegroups.com> on
>behalf of Anne-Emanuelle Birn <ae.birn at utoronto.ca>
>
> The survival of WHO continues to be a prime concern; today Reuters reports
>that France and Germany are seeking to increase WHO?s funding and its
>ability to call out non-compliant countries.
>
>Though promising, these measures still do not get to the crux of the
>problem.
>
> In May Laura Nervi and I wrote a short article on this issue titled:
>?(Re-)Making a People?s WHO,? which has been published in the September
>issue of AJPH. It highlights the following.
>
> Amid the hullabaloo around the Trump administration?s withdrawal from WHO,
>and the many voices rallying to defend a strong WHO, a crucial issue is
>left out of the picture: the vast and undemocratic influence over WHO of
>corporations, philanthropies, and their powerful country partners. We argue
>that this situation needs to be reversed in order for WHO to be
>re-legitimized and truly address the people?s health.
>
>Unfortunately, one needs a personal or institutional subscription to access
>the article in English, but we obtained permission to translate it
>in open-access format, and it has now been posted in French, Spanish, and
>German.
>
>English version (with individual or institutional subscription):
> ?(Re-)Making a People?s WHO,? *American Journal of Public Health*, 110: 9
>(September 2020): e1-e2. https://doi.org/10.2105/AJPH.2020.305806
>
>*For those of you who read French, Spanish, or German, the open-access
>links are here:*
>
>French version:
>https://blogs.mediapart.fr/anne-emanuelle-birn/blog/210720/re-faire-l-oms-pour-le-peuple
>
>Spanish version:
>https://www.hifa.org/dgroups-rss/construyendo-una-oms-para-la-gente
>
>Spanish version also forthcoming in *Medicina Social* 2020, 13(2).
>
>German version:
>https://www.bukopharma.de/index.php/de/8-aktuelles/361-who-fuer-menschen
>
>
>
>Anne-Emanuelle Birn
>
>--
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>
>Message: 7
>Date: Wed, 19 Aug 2020 12:19:11 +0200
>From: Ryz Tyb <riaz.tayob at gmail.com>
>To: Claudio Schuftan <cschuftan at phmovement.org>
>Cc: phm-exchange <phm-exchange at phm.phmovement.org>
>Subject: Re: PHM-Exch> Investor-state dispute settlements (ISDS)
> enable TNCs making more money from losses
>Message-ID:
> <CABOQGyBqXcp0wZqazq0vHz+U9EwU78YaJYwz-84J0uP-HodBUQ at mail.gmail.com>
>Content-Type: text/plain; charset="utf-8"
>
>>
>> *ISDS enables making more money from losses *
>>
>> *Jomo Kwame Sundaram*
>>
>>
>>
>> KUALA LUMPUR: With the Covid-19 contagion from late 2019 spreading
>> internationally this year, governments have responded, often in
>> desperation. Meanwhile, predatory international law firms are encouraging
>> multimillion-dollar investor-state dispute settlement (ISDS) lawsuits
>> citing Covid-19 containment, relief and recovery measures.
>>
>>
>>
>> *Sharing the pain*
>>
>> Most governments failed to introduce sufficient precautionary measures
>> early enough to prevent Covid-19 contagions from spreading. And when they
>> did act, they often believed they had little choice but to impose
>> nationwide ?stay in shelter? lockdowns to enforce preventive physical
>> distancing.
>>
>> To enable businesses and households to survive the adverse effects of such
>> lockdowns, governments have provided relief measures, for at least some of
>> those believed to have been adversely affected, especially for businesses
>> better able to lobby effectively.
>>
>> Meanwhile, there are already thousands of mainly bilateral investment
>> treaties as well as bilateral and plurilateral trade agreements worldwide,
>> enabling foreign investors to sue governments before private arbitration
>> tribunals to profit from their wide-ranging treaty rights.
>>
>> Transnational corporations (TNCs) can claim staggering sums in damages for
>> alleged investment losses, for either alleged expropriation, or more
>> typically, indirect ?damage? caused by regulatory changes, in this case,
>> Covid-19 government response measures.
>>
>> As some such measures try to share the burden of the crisis, e.g., with
>> asset owners and other contracting parties, the international law firm Shearman
>> & Sterling
>> <https://www.shearman.com/perspectives/2020/04/covid-19-international-investment-protection?sc_lang=ja-JP> advises
>> financial firms, ?While helping debtors, these measures would inevitably
>> impact creditors by causing loss of income?, referring to debt relief and
>> restructuring efforts among others.
>>
>> Foreign registered real estate or property companies can also sue
>> governments that protect lessees or tenants who cannot make their lease or
>> rent payments as contractually scheduled after their operations are shut
>> down or disrupted by emergency regulations imposed.
>>
>> Pharmaceutical and medical supplies companies can also appeal to such
>> arbitration tribunals to claim losses due to price controls and ?violated?
>> intellectual property rights for Covid-19 tests, treatments, medical and
>> protective equipment as well as vaccines.
>>
>>
>>
>> *Lucrative ISDS lawsuits*
>>
>> In recent months, international law firms have been encouraging ISDS
>> lawsuits citing government measures to check contagion and mitigate their
>> economic consequences, urging clients to invoke investment and trade
>> agreements to claim for allegedly lost income or additional losses or costs
>> due to new government policy measures.
>>
>> Another firm Ropes & Gray
>> <https://www.ropesgray.com/en/newsroom/alerts/2020/04/COVID-19-Measures-Leveraging-Investment-Agreements-to-Protect-Foreign-Investments> advises:
>> ?Governments have responded to COVID-19 with a panoply of measures,
>> including?limitations on business operations, and tax benefits. *Notwithstanding
>> their legitimacy*, these measures can negatively impact businesses by
>> reducing profitability, delaying operations or *being excluded from
>> government benefits*?For companies with foreign investments, investment
>> agreements could be a powerful tool to recover or prevent loss resulting
>> from COVID-19 related government actions.? [my italics]
>>
>> Shearman & Sterling
>> <https://www.shearman.com/perspectives/2020/04/covid-19-international-investment-protection?sc_lang=ja-JP> advises,
>> ?Some interventions will be protectionist?they will seek to support or
>> benefit domestic enterprises (strategic or otherwise) but not foreign
>> investors?, without mentioning their generally far lower tax contributions
>> and generous investment incentives enjoyed.
>>
>>
>>
>> *Profiting from the pandemic *
>>
>> After advising clients to look out for discriminatory measures which
>> could become the bases for such claims, law firm Sidley
>> <https://www.sidley.com/en/insights/publications/2020/05/investment-treaty-claims-for-covid19-losses> warns
>> governments that proceedings can be very costly as ?it is not only the
>> actually invested amounts that can be considered recoverable damages, but
>> also lost future profits?.
>>
>> Such law firms remind their clientele that many of the more than thousand
>> ISDS lawsuits filed worldwide have arisen during political or economic
>> crises. Covid-19 pandemic response measures are now being widely studied as
>> possible pretexts for another round of lawsuits.
>>
>> These corporate lawsuits can impose massive fiscal burdens on governments.
>> As Pia Eberhardt <https://longreads.tni.org/cashing-in-on-the-pandemic>shows,
>> legal costs average well over US$6 million per party, but can be much
>> higher. Hence, such suits can drain government fiscal resources.
>>
>> Although it becomes much more expensive if governments lose, they still
>> have to cover their own legal expenses even if they do not lose. As of
>> 2018, governments had been ordered to pay US$88 billion for settlements
>> made public.
>>
>> There is considerable scope for such cases given the still growing, broad
>> range of government Covid-19 measures, e.g., foreign-owned water supply
>> companies can sue governments for insisting that more public water supply
>> sources be provided, or household water supplies remain uninterrupted, even
>> if water bills are not settled, to enable more regular hand washing.
>>
>>
>>
>> *ISDS undemocratic, illegitimate*
>>
>> International investment law is generally independent of national
>> legislatures and biased toward TNC interests. Investment agreements
>> prescribe foreign investor rights and privileges very broadly, but their
>> duties and obligations, usually rather minimally.
>>
>> Sovereign national societies, parliaments and governments have
>> considerable scope for discretion in addressing complex political issues
>> involving diverse social and economic interests. Also, national courts
>> generally do not award damages for lost future profits as these are
>> considered completely conjectural.
>>
>> But ISDS provides much more favourable treatment to powerful TNCs. Also,
>> international arbitration tribunals ignore and undermine the legitimate
>> scope for national courts, law-making and democratic government
>> decision-making.
>>
>> The typically transnational arbitration tribunals that interpret such law
>> generally ignore recent legal developments, which take more account of the
>> rights and responsibilities of various other stakeholders in national
>> societies. Thus, arbitration awards tend to be much more lucrative, for
>> both TNCs and their lawyers, than ordinary national court decisions.
>>
>> A South Centre Southview
>> <https://www.southcentre.int/wp-content/uploads/2020/08/SouthViews-Sornarajah-1.pdf> urges
>> considering various measures in response to the threat such as terminating
>> or suspending investment treaties, withdrawing consent to arbitration,
>> statutorily prohibiting recourse to arbitration and appealing to TNCs?
>> corporate moral responsibility
>>
>> Already, there are growing appeals for an immediate moratorium on ISDS
>> lawsuits and to end ISDS proceedings involving Covid-19 emergency measures,
>> while some countries, e.g., India, South Africa and Indonesia, had scrapped
>> some of their bilateral investment treaties even before the crisis.
>>
>> The Southview opinion also chides the United Nations Commission on
>> International Trade Law (UNCITRAL) for trifling with marginal reforms,
>> instead of radically reconsidering the very illegitimacy of international
>> investment arbitration itself.
>> https://www.ksjomo.org/post/isds-enables-making-more-money-from-losses
>>
>>
>>
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>www.avast.com
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><#DAB4FAD8-2DD7-40BB-A1B8-4E2AA1F9FDF2>
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>_______________________________________________
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>End of PHM-Exchange Digest, Vol 135, Issue 1
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