The Right and US Trade Law: Invalidating the 20th Century
Another influential advocate is Edwin Williamson of Sullivan & Cromwell, who, by his own description, has always been more ideological on the subject than Price. His law firm is blue-chip establishment, with an awesome range of international clients spanning global finance and major multinationals (Sullivan & Cromwell recently counseled Citigroup on its $12.5 billion purchase of Mexico's largest bank). Williamson took leave in 1990 to serve as legal adviser at the State Department under Bush I and monitored the developing terms for enforcing investor rights. "I was calling strikes from the bleachers," he told me, but others described him as a central influence. His office at State "scrubbed" NAFTA's final text to make sure the language conformed with negotiators' intentions, and although Williamson described the vetting as uncontroversial, a Canadian legal adviser said the lawyers at State deleted key words and phrases that effectively broadened NAFTA's terms even further. "What we're really trying to protect here are property rights," Williamson explained. "Property rights are included in the International Declaration of Human Rights, but they've always gotten short shrift from an international standpoint because the international legal community is very left wing and doesn't care about property rights."
Williamson, it happens, is also active in the Federalist Society and chairs the society's practice group for international lawyers. "Well, I'm a conservative, low-government, private-property kind of person by nature," he said. He returned to Sullivan & Cromwell after 1992 and became chair of the US industry expert group at USCIB, where he became a leading advocate for the Organization for Economic Cooperation and Development's ill-fated Multilateral Agreement on Investment, designed to spread this expanded property rights for investors worldwide. That project was set aside after citizen protesters, led by Canadians and joined by American activists like Global Trade Watch, raised a global storm of critical objections. By the late 1990s, Williamson was lobbying the Clinton Administration--"very, very hard," one ex-official remembered--on the same subject. He is still on the case for the upcoming FTAA negotiations.
Does he regard Epstein's doctrine as sound? "Oh, yeah. I basically believe we need to recognize that extensive environmental regulation may still involve a taking. From an international standpoint, this is an area where we haven't had any real problems of magnitude, but with increased cross-border investment I think it is incumbent on the international community to provide protection for property rights."
The first Bush Administration, Williamson pointed out, was populated with many like-minded advocates, such as White House counsel C. Boyden Gray, who is now back at Wilmer, Cutler & Pickering and serves with Ed Meese on the Federalist Society's board of visitors, and Vice President Dan Quayle, whose White House staff scrutinized all new regulations for takings issues. "The ideology was pretty well spread around," Williamson said. The new Bush Cabinet, likewise, includes many "pro-takings" devotees, from Attorney General John Ashcroft to Interior Secretary Gale Norton.
Yet Williamson worries that the multinational corporations are insufficiently alert to the cause. "I have a lot of clients I think ought to be interested in this," he said, "but, you know, it's the old attitude--this isn't going to happen to us." Likewise, he fears the proposed FTAA talks will not include investor protection if it doesn't get more aggressive business support. "If you're not going to include the investor-state in the FTAA, you're not serious about it," he said.
Among some trade lawyers and ex-diplomats, the conviction persists that both environmental critics and business advocates are hyping the implications of "regulatory takings" for their own different purposes. Charles "Chip" Roh, now retired as a career civil servant at USTR, was a deputy negotiator working alongside Dan Price on Chapter 11 ten years ago. Roh explained the unresolved legal ambiguities at great length and predicted that once more cases are decided, the terms will prove to be not very different from long-established practices. "If you got a trend line of bad cases where it seems as though the regulatory takings theory appears, I don't think the governments signed on to that," he said. "If that happens, they should step in and amend it, and I think they would. Because whether you're liberal or conservative, people are not going to accept that."
Then I read to Roh from the letter sent in April to US Trade Representative Robert Zoellick by twenty-nine major US multinationals and industry organizations, urging him to push for the same NAFTA investor provisions in the upcoming FTAA negotiations. The appeal was organized by USCIB and vetted by Dan Price. GE, Ford, GM, International Paper, Motorola, Dow, DuPont, Chevron, Procter & Gamble and 3M were among the signers (though not the Business Roundtable). The business letter sounds a lot like Professor Epstein. NAFTA, it asserts, includes "protection from regulations that diminish the value of investors' assets."
"Jesus, they can't mean that," Roh exclaimed. I read him the text again. "Jesus, if they do that, they're going to put Middle America on the barricades alongside the environmentalists."