Jomo Kwame Sundaram
Investor-state dispute settlement (ISDS) provisions in ostensible free trade agreements (FTAs) and bilateral investment treaties (BITs) have effectively created a powerful, privileged system of protections for foreign investors that undermine national law and institutions. ISDS allows foreign corporations to sue governments for causing them losses due to legal or regulatory changes.
A law unto themselves
ISDS cases are decided by extrajudicial tribunals composed of three corporate lawyers. Although ISDS has existed for decades, its scope and impact has grown sharply in the last decade. As ISDS has been written into over 3,000 BITs and numerous FTAs, the opportunities for ISDS claims are huge and growing.
Originally justified as necessary to protect foreign corporate investments abroad from nationalization or expropriation by governments controlling national judiciaries, foreign corporations have used ISDS to change sovereign laws and undermine national regulations. As there is no cap on the amount of awards, claims – and awards – can be huge.
The system is secret and dominated by unaccountable corporate lawyers. As international arbitration is typically not transparent, pursuing such claims can avoid the public scrutiny associated with mounting legal challenges in courts. Lack of transparency means that lawyers acting as arbitrators or advocates in one case can be unnamed investors in other cases, as nobody would ever know.
ISDS proponents claim that the outcomes of cases are uncertain, and corporations only win about a quarter of the cases they pursue. But this does not include settlements agreed to before the conclusion of arbitration proceedings from which corporations often secure handsome benefits of some kind or other. ISDS arbitration is certainly far more attractive to foreign investors who would otherwise shy away from pursuing claims in other national courts, particularly against host governments.
Recent ISDS decisions have involved significantly greater delegation of authority to arbitrators in interpreting and applying the agreements concerned, without any meaningful review or opportunity to appeal the arbitrators’ decisions. There is no guarantee that tribunals will interpret treaty provisions in ways consistent with governments’ understandings of what treaty obligations mean.
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