PHM-Exch> As the world meets to discuss ISDS, many fear meaningless reforms

[Claudio Schuftan]

From: Mónica Vargas C. <m.vargas at tni.org>

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*As the world meets to discuss ISDS, many fear meaningless reforms*

by Alexander Beunder & Jilles Mast

*This week, representatives of around 100 countries are meeting in New York
to talk about investor-state dispute settlement (ISDS). ISDS is a legal
instrument that multinationals can use to sue governments for billions.
External experts and observers fear that the new negotiations will amount
to ‘old wine in new bottles’. They believe that those who benefit from this
instrument (powerful states and top lawyers from the ISDS sector) are
controlling the debate.*

*Read the full article at:
**http://longreads.tni.org/isds-many-fear-meaningless-reforms/
<http://longreads.tni.org/isds-many-fear-meaningless-reforms/>*

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*Summary*

   - This week, delegations from around 100 countries are meeting in New
   York to discuss investor-state dispute settlement (ISDS).


   - ISDS is a provision in more than 3,000 investment treaties that gives
   corporations the right to sue national governments through arbitration,
   circumventing national judicial systems, whenever they find that
   governments infringe upon their rights as investors.


   - After 942 ISDS cases, a growing number of countries, NGOs and
   academics are voicing their concerns about this provision. ‘Big
   corporations and the super-rich, along with the arbitration industry [the
   lawyers who argue ISDS cases] are by far the main beneficiaries of ISDS’,
   says Canadian professor Gus Van Harten.


   - Within a working group of a UN commission (UNCITRAL Working Group
   III), delegates from 60 countries will convene this week for the fourth
   time, along with observer delegations from countries including the
   Netherlands, to address concerns over ISDS and design reforms. These
   negotiations began in 2017.


   - Critics who attended the meetings claim that advocates of ISDS
   (certain powerful countries and lawyers from the ‘arbitration industry’)
   have a strong influence over the agenda during the talks. Whenever critical
   delegations like South Africa have the floor, ‘their criticisms sometimes
   don’t even make it into the official reports’, says New Zealand legal
   scholar Jane Kelsey


   - ISDS lawyers appear to hold administrative positions within the
   working group and are represented in large numbers in the advisory bodies
   that have been established for the working group.


   - There are also external ‘observer’ organisations consisting mainly of
   lawyers and corporates, while civil society is underrepresented.


   - ‘Broader criticisms are being ignored’ during the talks, says Kelsey.
   In her view, the talks will result in ‘old wine in new wineskins’.


   - One of the proposals on the agenda is a permanent investment court.
   According to the EU, this will address ‘all concerns’. Professor Van Harten
   says, however, that a permanent court could end up ‘institutionalising
   [ISDS] without addressing the key flaws’.
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