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Arabica Robusta

Is It Time to Redesign or Terminate Investor-State Arbitration? | Centre for Internatio... - 0 views

www.cigionline.org/...ate-investor-state-arbitration

isds investor-state dispute settlement international trade international development corporate-led globalization wto world trade organization

shared by Arabica Robusta on 13 Apr 17 - No Cached
  • How should those concerned with the ISDS threat to democracy and sovereignty approach these two paths? The choice should be guided by four criteria: independence, fairness, balance and respect for domestic courts. If a proposed ISDS makeover does not meet each criterion, then the notion of special rights for foreign investors, enforceable through international adjudication, should be rejected in favour of ISDS termination.
  • The arbitrators have the power to order the country to compensate the foreign investor, without a cap on the amount that can be awarded. Orders by ISDS tribunals are enforceable against the country’s assets in other countries, making ISDS more enforceable than domestic court judgments or other international adjudicative decisions.
  • ISDS favours foreign investors by giving them special rights that go well beyond private rights in domestic law and other areas of international law. Except for the national government responding to a foreign investor’s claim, ISDS denies even the basic right of standing for others affected by the adjudication of the claim. With treaties that allow for ISDS, arbitrators have tended to interpret ambiguous language in ways that expand foreign investors’ rights to compensation and the arbitrators’ power to award it.
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  • Loosely put, ISDS gives foreign investors an enclave legal status based on their power to invoke rights, and access to public money through a process that is open only to them. Foreign investor rights are Exhibit A, as The Economist put it, in demonstrating that “international trade agreements are a way to let multinational companies get rich at the expense of ordinary people” (The Economist 2014).
  • The simplest approach to fixing these foreign investor rights is to leave them out of trade and investment agreements. That option was not taken in proposed agreements such as the Canada-EU CETA, the Trans-Pacific Partnership Agreement or the Transatlantic Trade and Investment Partnership. For the first time since NAFTA, these agreements would apply ISDS to relations among developed countries that have court systems superior to ISDS, thus entrenching ISDS as a global institution. Such is the priority given by major governments to entrenching special rights for foreign investors and shifting judicial sovereignty to ISDS arbitrators.
  • In ISDS at present, foreign investors have elaborate rights, with corresponding responsibilities for countries. Yet ISDS lacks actionable responsibilities for foreign investors.
  • emarkably, in ISDS, foreign investors are not required to seek a resolution in a country’s courts before bringing an international claim. They are not even asked to supply evidence that domestic courts cannot ensure effective protection before resorting to ISDS. In effect, it is assumed in ISDS that courts fail systematically to offer justice in all countries subject to ISDS, and that ISDS is independent and fair in the manner of a court which, as noted above, it is not.
  • At a multilateral investment court, this lack of respect for domestic courts must be remedied by incorporating the duty to exhaust reasonably available local remedies into the court’s constituting document.
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