The fact that corporations are regularly placed on the same level as entire nations, and can sue them for alleged loss of future profits, probably came as something of a shock to most people, as it did to me when I first encountered the idea. It sounded like the deranged fantasy of some corporate lobbyist, but surely not something that any country would actually accept. And yet, as we know, not only do many – small, and relatively weak – countries consent to investor-state dispute settlement (ISDS) as the price of obtaining much-needed inward investment, but the European Commission seems hell-bent on exposing European to the same kind of corporate attack.
I say “Europeans”, and not European nations, because ultimately it is the taxpayers that must fund the increasingly exorbitant awards that ISDS tribunals are making. To put it another way, it’s a classic case of “privatising the profit, and socialising the costs”: EU companies get to make profits in the US, but it’s mostly the EU citizens who would have to foot the bill if awards were made under ISDS in favour of American corporations operating here in Europe.
Even though ISDS burst upon the scene relatively recently for most of us, we actually have a fair amount of information about its previous history, largely thanks to bodies like the United Nations Conference on Trade And Development (UNCTAD), which has been producing handy summaries of what’s been happening in this strange world for a while now. It’s just published its latest report [.pdf], and it contains some important developments. The number of new cases is only one less than the previous year’s record – 57 against 58. More significant is the following:
The greatest number of 2013 cases were brought against countries in Europe (26 cases, of which two are against countries not members of the European Union (EU) - Albania and Serbia)
Twenty four arbitrations (42 per cent of all cases) were brought against EU Member States. The range of countries involved is broad and includes “new” and “old” Member States, namely the Czech Republic (7 cases), Spain (6), Croatia (2), Hungary (2), Slovakia (2), Bulgaria (1), Cyprus (1), France (1), Greece (1), and Slovenia (1). In all of these arbitrations except for one, the claimants are also EU nationals; they started the proceedings on the basis of either intra-EU bilateral investment treaties (BITs) or the Energy Charter Treaty (ECT), sometimes relying on both at the same time.
That’s an important shift, since it shows that ISDS is no longer simply a way for Western countries to bully developing ones, but that the weapon has now been turned against many EU countries, mostly by other EU countries. This suggests that companies are becoming aware of and more comfortable with ISDS as a way of extracting money from EU governments. Couple that with the fact that overall the US is the leading nation when it comes to using ISDS – 127 cases out of 568 (22%) - and that there are more than 14,400 US-based corporations that own more than 50,800 subsidiaries in the EU, and you have a recipe for an ISDS-based legal Armageddon.
The report contains some other significant straws in the wind:
Several arbitrations launched in 2013 have an environmental dimension. In two disputes against Canada, investors are challenging measures introduced on environmental grounds. The first, a claim by Lone Pine Resources, arose out of Quebec’s moratorium on hydraulic fracturing (fracking) that led to the revocation of the company’s gas exploration permits. The second dispute relates to Ontario’s moratorium on offshore wind farms (pending research on their health and environmental effects); the claimant contends that the temporary ban breaches its contract for the electricity supply which it had concluded with the Ontario Power Authority for a 20-year period.
This is precisely the kind of thing that many fear will happen if ISDS is included in TTIP: companies will seek to overturn policies that are brought in for environmental reasons, arguing that corporate profits outweigh the rights of the public. The following case is also highly relevant to the EU situation:
Achmea, a Dutch insurance company, is seeking to preclude the host State from expropriating Achmea’s stake in a Slovak health insurer (the relevant draft law is under consideration by the Slovak Parliament). The right of States to expropriate property is well-established under international investment law as long as certain conditions are met. Achmea is claiming that some of these conditions would be breached (requirement of public interest, non-discrimination and due process) if the expropriation goes ahead.
A similar situation could arise in the UK if a future government decided to reverse the current privatisation of NHS services, and sought to re-nationalise them. If a US company were involved, it might claim that the UK could not it expropriate property by arguing as Achmea is doing.
The UNCTAD report is really well-worth reading in order to gain an understanding of how ISDS is developing – and how quickly. For example, there are cases where companies are now trying to claim “moral damages” along with everything else, and another case where a company that had made a $5 million investment was awarded $900 million in “lost profits” - even though it seems to have no track record as a profitable organisation.
Trade lawyers around the world have clearly realised that ISDS is one of the most efficient techniques for their clients to extract very large sums of money from governments, and they are applying their not-inconsiderable – if largely amoral – ingenuity to come up with new ways of using the mechanism. That’s another important reason why the "innovative elements" the European Commission plans to introduce to “improve” the system won’t work – they are trying to fix yesterday’s problems – and why ISDS must be removed completely from TTIP.