After all the demonstrations and protests against TTIP and ISDS almost two years ago, the streets and the media have gone quiet again. After a public outrage that brought tens of thousands to the streets, international politics has taken over the process again: the European Commission, for example, work hard on a new ISDS ‘light’. A proposal that is discussed this week at the United Nations. SOMO researcher Bart-Jaap Verbeek is in New York to follow the talks on ISDS reform.
The European proposal will be discussed in a UN UNCITRAL working group The core legal body of the United Nations system in the field of international trade law. A legal body with universal membership specializing in commercial law reform worldwide for over 50 years, UNCITRAL’s business is the modernization and harmonization of rules on international business. Working group III is working exclusively on the reform of ISDS.
The main point of the European proposal is a new type of court that can settle differences between companies and states, a so-called Multilateral Investment Court or MIC. Although the MIC does address some of the more fundamental objections against the current system of arbitrage, the lopsided nature of ISDS remains untouched. Only corporations have rights and only states have duties.
Together with CIEL, ClientEarth and Transport & Environment, SOMO formulated a couple of recommendations to truly reform ISDS. For example by also granting states the right to file a claim against a company. Of by denying companies the right to file a claim when they violated human or environmental rights. Or by obliging companies to address the local juridical system first, before filing an ISDS claim.
The four NGOs come with recent and concrete examples like the case of Copper Mesa Mining vs Ecuador. The corporation filed a claim after Ecuador ended its mining consession, because the company showed violent Ecuador pointed out, and the tribunal acknowledged, a pattern of unlawful and violent behavior on behalf of the investor: in the tribunal’s own words, Copper Mesa “resort[ed] to recruiting and using armed men, firing guns and spraying mace at civilians, not as an accidental or isolated incident but as part of premeditated, disguised and well-funded plans to take the law into its own hands.” Despite these findings and despite Ecuador’s impressive amount of expert testimony and materials relating to the legal doctrine of unclean hands under international law, the tribunal allowed the claim to proceed and ultimately awarded Copper Mesa $24 million. Despite this established fact. CMMC received a compensation of $ 24 million.
Read all recommendations for reform here. Recommendations for revising ISDS
We’ve summarized a couple of older articles on ISDS and TTIP to refresh your memory:
- Same old, same old: the EU pushes ISDS 2.0
- EU trade agreement threatens human rights in Indonesia
- Rethinking Bilateral Investment Treaties – critical issues and policy choices
- Making sense of CETA
- ISDS in numbers – Impacts of investment arbitration against Latin America and the Caribbean
- The hidden costs of RCEP and corporate trade deals in Asia