TransCanada may sue U.S. using NAFTA's ISDS provision if Keystone is nixed

[cali]

They may not have a great chance at success, but I think their odds have improved given some recent events and decisions.

http://www.cbc.ca/m/news/business/transcanada-quietly-plots-response-as-keystone-xl-rejection-seems-imminent-1.3185105

[GoneFishin]

1. And whatever loophole they forgot to put into NAFTA will sure as hell be in TPP.

[aspirant]

2. With Bernie's revolution exploding,

what will the American people say to bowing down to Canada

[pampango]

3. "A suit would likely fail, cost the company a few million dollars, and possibly antagonize the U.S.

government, said David Gantz, who was been a panelist on NAFTA cases and who teaches trade law at the University of Arizona.

One aspect of that internal discussion is the political calculus — and whether fanning the flames during the 2016 U.S. election campaign would help the project, or harm it. Keystone could easily become a 2016 issue, with Republicans already accusing Democratic stalling of hurting the economy, energy security, and relations with next-door neighbour Canada. One expert said he'd advise the company to hold off, and hope a more pipeline-friendly administration takes office in 2017.

The U.S. government has a 13-0 record in NAFTA cases.

"I think it's a fairly long shot, it's an expensive way to do a long shot, and it doesn't seem to me to be something they're very likely to do," said Gantz. He said the company could try filing under NAFTA's articles 1102, 1105 or 1110 — which deal with discrimination, unfair or arbitrary treatment and expropriation.

"No matter what they try, not an ounce of TransCanada's toxic pipeline will touch Nebraska's soil," said Jane Kleeb. "At some point, TransCanada's investors are going to fire the CEO for wasting billions of dollars and years on a pipeline going nowhere."

I suspect TransCanada would have a difficult time proving discrimination - the US government would approve XL if it were American-owned but treats Canadian businesses differently, "unfair or arbitrary treatment" - this thing has been studied, discussed and lobbied for and against forever, or expropriation.

It seems that the CEO's job is on the line if XL is rejected. Since he has already wasted a few billion dollars of the companies money on "a pipeline going nowhere", he might well decide that wasting a few million more on a frivolous law suit might just save his job. If TransCanada does file a suit contesting the denial of XL, it might be better served filing it with the WTO rather than under NAFTA. Given recent decisions it might stand a better chance of a favorable decision at the WTO.