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The TPP agreement establishes an investor-state dispute settlement (ISDS) mechanism, which grants investors the right to sue foreign governments for treaty violations. For example, if an investor invests in country "A", a member of a trade treaty, and country A breaches that treaty, then the investor may sue country A's government for the breach. ISDS is meant to provide investors in foreign countries basic protections from foreign government actions such as "freedom from discrimination", "protection against uncompensated expropriation of property", "protection against denial of justice" and "right to transfer capital":
Freedom from discrimination: An assurance that those doing business abroad will face a level playing field and will not be treated less favorably than local investors or competitors from other countries.
Protection against uncompensated seizure of property: An assurance that property of investors won't be seized by the government without just compensation.
Protection against denial of justice: An assurance that investors will not be denied justice in criminal, civil, or administrative adjudicatory proceedings.
Right to transfer capital: An assurance that investors will be able to move capital relating to their investments freely, subject to safeguards to provide government flexibility, including to respond to financial crises and ensure the integrity and stability of the financial system.
ISDS cannot ask governments to overturn local laws (unlike the World Trade Organization) which violate trade agreements, but can grant monetary damages to investors adversely affected by such laws. As pointed out by the Office of the United States Trade Representative, ISDS requires specific treaty violations, and does not allow corporations to sue solely over "lost profits".
The TPP specifically excludes tobacco industries from the ISDS process. The carve-out came as a response to concerns about ISDS cases against anti-smoking laws, including Philip Morris v. Uruguay. The exemption of tobacco from ISDS is a first for an international trade agreement.
On the basis of leaks, economists Joseph Stiglitz and Adam S. Hersh criticized the ISDS provisions of the TPP for interfering with the ability of governments to prevent public harm, alleging that if asbestos been discovered today, governments would have been unable to impose regulations without creating grounds for an ISDS suit. Stiglitz also claimed that the TPP would give oil companies the right to sue governments for efforts to reduce carbon emissions and global warming.
In November 2015, Columbia professor Jeffrey Sachs concluded that the ISDS system of the TPP grants huge power to investors, and damages the judicial systems of all the member countries. He alleges that ISDS has been already used by corporations to upset governments so as to weaken the regulations that have negative effects on their profits. In February 2016, Lise Johnson and Lisa Sachs of the Columbia Center on Sustainable Investment and Jeffrey Sachs of the Earth Institute allege that foreign corporations can sue a national government in international arbitration over a government's actions if the measures (including those for public health, national security, environment, food and drug, and responses to economic crises) have a negative effect on their profits and economic interests. Lori Wallach of Public Citizen's Global Trade Watch raised similar concerns while TPP was being negotiated.
In a February 2016 op-ed against the TPP, Senator Elizabeth Warren used the example of a French company suing Egypt because Egypt raised its minimum wage as an argument against the ISDS provisions of the TPP. The Washington Post's editorial board has, however, challenged this characterization of the case, noting that "Veolia of France, a waste management company, invoked ISDS to enforce a contract with the government of Alexandria, Egypt, that it says required compensation if costs increased; the company maintains that the wage increases triggered this provision. Incidentally, Veolia was working with Alexandria on a World Bank-supported project to reduce greenhouse gases, not some corporate plot to exploit the people. The case — which would result, at most, in a monetary award to Veolia, not the overthrow of the minimum wage — remains in litigation."
The Office of the United States Trade Representative challenges the notion that ISDS challenges "the sovereign ability of governments impose any measure they wish to protect labor rights, the environment, or other issues of public welfare". The International Bar Association (IBA) mirrors these sentiments, noting that "while investment treaties limit states’ ability to inflict arbitrary or discriminatory treatment, they do not limit (and, in fact, expressly safeguard) a state's sovereign right to regulate in the public interest in a fair, reasonable, and non-discriminatory manner." The White House notes that investment protections are a component of more than 3,000 trade agreements, the vast majority of which have some form of neutral arbitration. The United States is party to at least 50 such agreements, has only faced 13 ISDS cases and never lost an ISDS case. The White House asserts that the ISDS components of the TPP are an upgrade and improvement on ISDS in other trade agreements: TPP makes it absolutely clear that governments can regulate in the public interest (including with regard to health, safety and the environment); TPP includes the ability to dismiss frivolous claims quickly and award fees against the claimant to deter such suits; sham corporations will be prevented from accessing the investment protections; and arbitration proceedings under TPP will be open to the public and allow for inputs from non-parties.
The Peterson Institute for International Economics argues that "the ISDS provisions in the TPP are a significant improvement over those in previous agreements". PIIE notes that the ISDS mechanism in the TPP respects environmental, health, and safety regulation; ensures the transparency of dispute proceedings; and eliminates forum shopping. PIIE asserts that some of the innovations in the ISDS provisions of TPP "are generally disliked by the US business community." PIIE claims that ISDS provisions are necessary, as they boost investment: "empirical evidence has shown that treaties including these provisions have a positive effect on foreign direct investment (FDI) flows between signatory countries." PIIE challenges the claim that ISDS "arbitrators lack integrity", noting that arbitrators take an oath of impartiality and both sides of a case choose arbitrators. PIIE agrees "that secrecy has gone too far" in many ISDS cases, but notes that "TPP negotiators heeded this criticism" and opened up ISDS cases to greater transparency.
According to the International Bar Association (IBA), states have won a higher percentage of ISDS cases than investors, and that around one-third of all cases end in settlement. Claimant investors, when successful, recover on average less than half of the amounts claimed. IBA notes that "only 8 per cent of ISDS proceedings are commenced by very large multinational corporations." IBA challenges the notion that ISDS is biased against developing countries, noting that there is "no correlation between the success rates of claims against states and their income levels or development status." IBA notes that ISDS is necessary even in countries with sophisticated domestic legal systems because those domestic courts rule according to domestic laws, not international law. IBA notes that "increasingly, awards require the losing party to pay arbitration costs and legal fees to the winning party", which deters investors from initiating unmeritorious cases.