ISDS allows foreign investors to sue our Government

September 3, 2020: The second-largest damages claim awarded to a foreign investor against a government was US$5.8 billion, in July 2019, to the Australian subsidiary of Tethyan Copper Company against the government of Pakistan. Canadian academic Kyla Tienhaara argued in an article in the Conversation that this Investor-State Dispute Settlement (ISDS) ruling demonstrated that the global economic governance model is broken.

September 1, 2020: A new report by the Netherlands-based Transnational Institute reveals a rush of international arbitration cases against Latin American states by international investors during the COVID-19 pandemic. Some cases relate to pandemic control measures, and others to ongoing cases.

August 26, 2020: The Melbourne Age has reported that Clive Palmer’s Singapore-based company, established in 2019, could use foreign investor rights in the Singapore-Australia free trade agreement to claim billions in compensation because the WA government passed legislation terminating a legal dispute over an iron ore project, which had been running since 2012.

August 18, 2020: The Guardian (UK) has reported a series of law firms advising clients to use Investor-State Dispute Settlement clauses in trade and investment agreements to “recover or prevent loss resulting from COVID-19-related government actions”.

August 12, 2020: The Japanese Foreign Minister, Toshimitsu Motegi, and the UK Trade Secretary, Liz Truss met in person in London last week to finalise the proposed UK-Japan Free Trade Agreement, Media reports said that the major issues were settled and Secretary Truss expected the deal to be finalised by the end of August. The UK also wants FTAs with the EU, Australia, the USA, and New Zealand.

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.

July 29, 2020: It appears that the Japanese and British governments will not be sued by UK and Japanese corporations under the terms of a proposed free trade agreement which they want to conclude by January 1, 2021. That is when the United Kingdom is expected to finally break with the European Union, with or without a trade agreement.

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.

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.

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.