Lora Verheecke, Pia Eberhardt, Cecilia Olivet, Sam Cossar-Gilbert
24 Junio 2019
Multi-billion dollar lawsuits bleeding cash-strapped nations, corporations reversing victories by environmental defenders and dazzling financial rewards for investors who perpetrated human rights abuses. Ten investor-state lawsuits which have been filed, threatened or decided since 2015, from all over the globe (in Europe, Africa, Asia and Latin America), demonstrate that ISDS is again and again used as a corporate weapon against the public interest. This report exposes the true nature of the ISDS regime through 10 recent stories.
This report focuses on the significant threats to precautionary environmental, labour, consumer and public health policy from regulatory cooperation and “good regulatory practices” chapters within the EU-Canada Economic and Trade Agreement (CETA), US–Mexico–Canada Agreement (USMCA), and the currently parked EU-U.S Transatlantic Trade and Investment Partnership (TTIP).
The Regional Comprehensive Economic Partnership (RCEP) is a mega regional trade deal involving sixteen nations from Asia-Pacific. RCEP will impact the lives of billions of people, from the quality of the food they eat to the energy they consume and the affordability of life-saving medicines. Yet, RCEP negotiations are being conducted almost completely in secret, with limited to no meaningful public participation. Most elected officials have, at best, limited access to the negotiating texts, which remain out of reach for civil society.
We know what we have to do to solve the climate crisis. We must keep coal, oil and gas in the ground. But the fossil fuel industry has a secret powerful weapon to keep cooking the planet: The Energy Charter Treaty (ECT). It is on the brink of a massive geographical expansion into Africa, Asia and Latin America, threatening to bind yet more countries to corporate-friendly energy policies. Visit: www.energy-charter-dirty-secrets.org
In dit onderzoek analyseren wij vijftig jaar ISDS, de ontwikkeling van investeringsbescherming in een globaliserende wereld en de rol van Nederland hierin. We hebben feiten en cijfers uitgezocht en opgezocht, analyses gemaakt en conclusies getrokken.
How fair is the investment arbitration system in Latin American and Caribbean (LAC) countries? Are investor-state disputes balanced between national and corporate interests? LAC countries are among the most affected by the investment arbitration system, representing 28.6% of all known investor-state disputes around the world. In particular, Argentina, Venezuela, Mexico, Ecuador, Bolivia and Peru account for 77.3% of the total number of claims against LAC countries. Analysis shows that the system so far heavily favours corporate interests. Investors have won in 70% of the cases brought against LAC countries. As a result, LAC States have already had to pay foreign companies 20.6 billion USD, which could cover Bolivia’s budget for health and education for four whole years.
The European Commission proposal for a global investor court for investor-state dispute settlement (ISDS) – known as the Multilateral Investment Court – threatens to enshrine, expand, and entrench the current system of corporate privilege in future trade deals. A world court for corporations would be the capstone in the architecture of corporate impunity, undermining democratic institutions and lawmaking, and worsening the power imbalance that grants rights, protections, and compensation to corporations at the expense of the public interest.
The Ecuadorian Citizens’ Commission for a Comprehensive Audit of Investment Protection Treaties and of the International Arbitration System on Investments (CAITISA) was set up by the Ecuadorian goverment to audit the country's investment treaties and make recommendations to the government.
The commission was comprised of government officials, academics, lawyers and civil society groups, including the foremost expert on investment law, Muthucumaraswamy Sornarajah and the former Attorney General for Argentina, Osvaldo Guglielmino. Our own TNI researcher Cecilia Olivet was nominated president.
In May 2017, the Commission's report was published and its recommendations to terminate the country's Bilateral Investment Treaties accepted by the government.
En miljarden project in Jakarta, opgesteld door een consortium van Nederlandse ingenieursbedrijven en adviesbureaus ontving financiële steun van de Nederlandse overheid uit het ontwikkelingshulpbudget. De te verwachten nauwe betrokkenheid van Nederland illustreert de verschuiving in het ontwikkelingsbeleid dat hulp en handel dichter bij elkaar wil brengen. Onderzoekers betwijfelen dat de overheid de juiste afweging maakt tussen het belang van het ondersteunen van het Nederlands bedrijfsleven enerzijds en het uitvoeren van het eigen beleid van duurzame en inclusieve ontwikkeling anderzijds.
Projects protecting Jakarta against floods are likely to damage the environment and could threaten the livelihoods of tens of thousands of people. The Dutch government, supporting these projects, should question how it balances its interest in supporting Dutch companies with its stated policies of sustainable and inclusive development.
In both TTIP and CETA food, agriculture, animal husbandry and horticulture play a major role and the prospects for European farmers and consumers are not good. TTIP negotiators are discussing abolishing or lowering import tariffs for agricultural products and the mutual recognition of each others’ standards relating to environment, animal welfare, food safety and labour rights is on the agenda.
The Transatlantic Trade and Investment Partnership (TTIP) is a proposed free trade agreement, in negotiation, between the United States and the European Union. Its proponents claim that the agreement will benefit consumers with lower prices, increased competition and more jobs.
However, very little of the TTIP deals with trade; the vast majority of the agreement relates to government regulations and will therefore have huge implications in matters such as food sovereignty, digital rights and the environment. It will limit the capacity of governments and local groups to regulate and increase the capacity of transnational corporations to act with impunity. TNI’s focus for TTIP and other free trade agreements is on the investment chapter, and particularly the problems caused by Investor-State Dispute Settlement (ISDS) mechanisms that allow corporations to sue governments for actions that affect their profits.
Investment protection mechanisms give corporations the right to sue states if they take any measures – including public interest legislation – that might threaten profits. Wellknown versions of this is the Investor state-dispute mechanism (ISDS) which after rising controversy and critisism has been replaced by the Investment court system (ICS). Investment protection mechanisms are included in most new FTAs. Nevertheless, several governments are starting to reconsider their commitments to it as they recognize the danger that it poses to their sovereignty. TNI has produced extensive research highlighting how investment protection gives corporations far-reaching rights that curtail governments’ sovereignty and drain limited public budgets. It has also revealed the big stakes the legal industry has in these mechanisms.
The Comprehensive Economic and Trade Agreement (CETA) is a proposed free trade agreement between Canada and the European Union. The negotiations for CETA concluded on August 1, 2014, but its completion and ratification is expected to take at least two years, due to the number of parties involved. Many sections of the agreement have been severely criticised, in particular its Investor-State Dispute Settlement processes (ISDS) and its likely negative implications for the environment.
Bilateral Investment Treaties (BITs) are intended to regulate the commercial investment relationships between two countries. These are supposed to facilitate trade and investment by providing security for investments. However, it is common practice for BITS to establish ISDS mechanisms that allow for transnational companies to sue the states in which they operate based on a very broad interpretation of damage to investments. This has led to a surge in litigations against states and prompted a growing number of governments to seek to cancel or amend existing BITs.