Saturday, September 10, 2016

A global network of super-courts?

BuzzFeed has produced a four-part series of articles covering 'investor-state dispute settlements', or ISDS.  In the first part of the series, they describe it as follows.

Imagine a private, global super court that empowers corporations to bend countries to their will.

. . .

This system is already in place, operating behind closed doors in office buildings and conference rooms in cities around the world. Known as investor-state dispute settlement, or ISDS, it is written into a vast network of treaties that govern international trade and investment, including NAFTA and the Trans-Pacific Partnership, which Congress must soon decide whether to ratify.

. . .

ISDS is basically binding arbitration on a global scale, designed to settle disputes between countries and foreign companies that do business within their borders. Different treaties can mandate slightly different rules, but the system is broadly the same. When companies sue, their cases are usually heard in front of a tribunal of three arbitrators, often private attorneys. The business appoints one arbitrator and the country another, then both sides usually decide on the third together.

. . .

But over the last two decades, ISDS has morphed from a rarely used last resort, designed for egregious cases of state theft or blatant discrimination, into a powerful tool that corporations brandish ever more frequently, often against broad public policies that they claim crimp profits.

Because the system is so secretive, it is not possible to know the total number of ISDS cases, but lawyers in the field say it is skyrocketing. Indeed, of the almost 700 publicly known cases across the last half century, more than a tenth were filed just last year.

ISDS has morphed from a rarely used last resort into a powerful tool that corporations brandish ever more frequently.

Driving this expansion are the lawyers themselves. They have devised new and creative ways to deploy ISDS, and in the process bill millions to both the businesses and the governments they represent.

. . .

In a little-noticed 2014 dissent, US Chief Justice John Roberts warned that ISDS arbitration panels hold the alarming power to review a nation’s laws and “effectively annul the authoritative acts of its legislature, executive, and judiciary.” ISDS arbitrators, he continued, “can meet literally anywhere in the world” and “sit in judgment” on a nation’s “sovereign acts.”

There's more at the link.

The four parts of the article are:

It's the first time I've seen BuzzFeed produce an investigative reporting series in as much depth as this one.  Kudos to them.  It makes interesting reading, and should concern anyone who values the rule of law - which, as far as ISDS is concerned, appears to mean 'the law of the jungle', in commercial and financial terms.


1 comment:

Anonymous said...

Chief Justice John Roberts is exactly correct in his assessment of the dispute adjudication clauses in treaties such as TPP and TTIP. They effectively remove input from the citizens living within the jurisdictions of signatory nations. Nations are ceding their sovereignty to unknown courts of unknown makeup with unknown agendas. It's appalling.

Moreover, TPP and TTIP have nothing to do with "free trade". They do not create free trade areas. They create Common Regulatory Areas. So, what the regulations actually are and who draws them up becomes critical. So far, this has been done secretly.

Restrictions are not removed. They are simply harmonized, so that they no longer constitute barriers to trade FOR THOSE WHO CAN AFFORD THE COMPLIANCE COSTS, and for those whose systems are sophisticated enough to enable conformity with often complex procedural requirements. By no measure is this free trade. It is managed trade. And it will not be managed by transparent, level playing field rules that were decided upon through open debate and democratic input.

If anyone calls these treaties "free trade" you have my permission to smack 'em up side the haid.