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I took a closer look at the complaint here:
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Key passages:"really have a commercial purpose", "atmosphere inside the ITO"
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Rob, to address your points in order: 1. Wouldn't the arbitral community be hard-pressed to allow a notion of "national interest" to encompass decisionmaking that the highest officers of the land admitted were political in nature? 2. Politics is about more than the narrow officeholder of the moment. It's also about the Democratic Party in general, including its 2016 nominee. If HRC, she is on the record as having pushed Obama (in 2015) to reject proposal. 3. Delay. The US had forward motion on other pipelines and oil sands production during same time, as Simon argues above. 4. We're not dealing with a mixed fact-finding record here. As I understand it, all findings found no GHG impact. Obama suggested science would be only basis of the decision. Easier to argue against mixed State Dept findings; harder to argue against consistent and uniform findings of your own responsible agency. Re: your signaling argument, Obama did some things that signal a move away from fossil fuels during the period, others as move towards. The ambiguity of the signal would weigh against relying on it. In short, you give a defense that anticipates what the US will argue. But they'll have to argue away loads of foot-in-mouth comments, at a moment when there are some compelling systemic-protection in play (i.e. legitimacy reasons to not always let the US win cases). See also here for my quick take:
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Did you ever find out about this? If TPP will replace NAFTA, it seems like Obama would be using that in his sales pitch
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Apr 26, 2015