Yeah, but Phillip Morris brought their case against Australia in the Australian High Court in front of judges.
Under an ISDS as outlined in the TPP, they would bring the case against a sovereign nation in an arbitration hearing overseen by lawyers who typically work for the corporations themselves. It's a gross conflict of interest.
ISDS would allow foreign companies to challenge US laws — and potentially to pick up huge payouts from taxpayers — without ever stepping foot in a US court. Here's how it would work. Imagine that the United States bans a toxic chemical that is often added to gasoline because of its health and environmental consequences. If a foreign company that makes the toxic chemical opposes the law, it would normally have to challenge it in a US court. But with ISDS, the company could skip the US courts and go before an international panel of arbitrators. If the company won, the ruling couldn't be challenged in US courts, and the arbitration panel could require American taxpayers to cough up millions — and even billions — of dollars in damages.
If that seems shocking, buckle your seat belt. ISDS could lead to gigantic fines, but it wouldn't employ independent judges. Instead, highly paid corporate lawyers would go back and forth between representing corporations one day and sitting in judgment the next. Maybe that makes sense in an arbitration between two corporations, but not in cases between corporations and governments. If you're a lawyer looking to maintain or attract high-paying corporate clients, how likely are you to rule against those corporations when it's your turn in the judge's seat?