ISDS allows foreign investors to sue our Government

Investor-State Dispute Settlement

Investor-State Dispute Settlement (ISDS) pitfalls

Not a fair legal system

ISDS gives special rights to foreign investors (that are not available to local investors) to bypass national courts and sue governments for millions of dollars if they can claim that a change in law or policy will harm their investment.

The tribunals consist of investment lawyers who can continue to be practicing lawyers, with obvious conflicts of interest. Australia’s High Court Chief Justice and other legal experts have said that ISDS is not a fair legal system because it has no independent judges, no precedents and no appeals. There are  983 known cases, many against health, environment and other public interest laws.

Increasing numbers of ISDS cases against public interest legislation

Recent ISDS cases against health, environment and other public interest legislation include:

  • Public health: The Swiss pharmaceutical company Novartis threatened to sue the Colombian government over plans to reduce the price of a patented medicine to treat leukaemia. Read about more cases here.

  • Environment: the US Bilcon company won millions of dollars of compensation from Canada of because its application for a quarry development was refused by a local government for environmental reasons. The US Westmoreland coal mining company is suing the Canadian government because the state of Alberta decided to phase out coal-powerd energy. Read about more cases  here. 

  • Workers wages: The French Veolia company is suing the Egyptian government over a contract dispute in which they are claiming compensation for a rise in the minimum wage.

  • Indigenous land rights: An ISDS tribunal ordered the Peruvian government to pay $24 million to the Canadian Bear Creek mining company because it cancelled a mining license after the company failed to obtain informed consent from Indigenous land owners about the mine, leading to mass protests. ISDS rewarded the company for ignoring Indigenous land rights. 

  • Privatisation: Mexican transport company ADO has threatened Portugal with a €42 million ISDS case after it cancelled plans to privatise part of Lisbon's public transport network. 

Philip Morris tobacco company vs Australia: when even winning is losing

Even if a government wins the case, defending it can take years and cost tens of millions of dollars. For example, tobacco companies lost their claim for compensation for Australia’s 2011 plain packaging legislation in Australia’s High Court.  The US-based Philip Morris company did not accept this decision under Australian law. The company could not sue under the US-Australia FTA because that agreement had no ISDS clause. The company found a Hong Kong-Australia investment agreement containing ISDS, shifted some assets to Hong Kong, claimed to be a Hong Kong company and sued the Australian Government, claiming billions in compensation. It took over four years and millions in legal fees for the tribunal to decide the threshold issue in December 2015 that Philip Morris was not a Hong Kong company.

Although the tribunal in July 2017 eventually awarded a proportion of the legal and arbitration costs to Australia, the proportion and amount of the costs were blacked out in the tribunal’s cost decision. This was  a failure of public accountability both by the tribunal and the Australian government, as taxpayers have a right to know the costs of defending ISDS cases. Community organisations called for the Australian government to reveal the costs. The government initially appealed an FOI case decision that it should reveal the costs, but  on July 2, 2018  released  total figures for the High Court case and the Philip Morris case  that showed a total of $39 million. 

The government refused to reveal the specific ISDS legal costs and what percentage of the total costs had been awarded to Australia.

The most recent FOI case on the ISDS costs, launched in 2017 by a legal publication, took another two years to reveal in February 2019 h that Australian taxpayers were awarded only half of the costs of almost $A24 million in both legal fees and arbitration costs, despite the finding that the case was an abuse of process.

This cost decision reinforces the case against the ISDS system. Australia could afford to defend the case, but $12 million is still a loss to taxpayers that could have been spent on health or other community services. Developing countries simply cannot afford these costs.

This confirms that, even if governments win ISDS cases, defending them takes years (in this case seven years before costs were awarded) and tens of millions of dollars. 

Learn more

Updated February 2020

Malaysian government decision not to ratify CPTPP comes under pressure

August 6, 2020: Darell Leiking, Malaysia’s former minister of international trade and industry and MP for Penampang has confirmed that on November 29, 2019, the government decided that it had made the right decision in not ratifying the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). This was based on a one-year research effort, which had found potential negative impacts on domestic industry.

Barrick Australia sues Papua Niugini to hold onto lucrative Porgera gold mine

July 14, 2020: Canadian company Barrick Gold announced on July 10 that its Australian subsidiary, Barrick Australia Pty Ltd, is invoking the investor-state dispute settlement (ISDS) provisions of a bilateral investment treaty between Papua New Guinea (PNG) and Australia over the PNG government’s refusal to grant an extension of the company’s expired permit at the controversial Porgera Joint Venture gold mine in the PNG highlands.

Cardinals call out ISDS as corporate ‘secret weapon’ and call for enforceable regulation of global corporations

July 13, 2020: In a blunt statement issued on July 6, 2020, Cardinal Jean-Claude Hollerich of Luxembourg, and Cardinal Charles Maung Bo of Yangon, Myanmar, added their names to a statement by 110 Catholic Bishops calling on governments to better regulate private corporations, and said the European Union must lead the way.

Australian mining company using ISDS to sue Polish Government

July 7, 2020: Prairie Mining, an Australian company using third-party funding from another Australian company, Litigation Capital Management, has announced an investment treaty claim against Poland over the obstruction of two coal projects. An LCM subsidiary in London has provided A$18 million to finance the action. LCM will get a profitable investment return if Prairie Mining wins the case.

630 civil society groups warn of corporate threats to sue governments over actions taken to save lives during the COVID-19 pandemic

June 25, 2020, Media Release: “An open letter endorsed by 630 international and national civil society organisations has been sent to Trade Minister Birmingham, warning him that Australia could face a wave of cases from global corporations claiming millions in compensation for actions taken to respond to the pandemic. Corporations can do this using rules in trade deals known as investor-state dispute settlement, or ISDS,” AFTINET Convener Dr Patricia Ranald said today.

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