Global Trends

Published: Monday November 24, 2014 MYT 12:00:00 AM
Updated: Monday November 24, 2014 MYT 7:12:44 AM

Tide turns on investor treaties

The winds of change are blowing against trade and investment treaties that contain the investor-sue-the-state system, which is now described as ‘toxic’ by Western politicians and media.

THE tide is turning against the controversial system in which foreign companies are allowed to sue governments of their host countries in a foreign court for millions or billions of dollars.

At first it was the developing countries that started to rebel against the system, known as investor-state dispute settlement (ISDS), which is embedded within bilateral investment treaties (BITS) or in free trade agreements like the Trans-Pacific Partnership Agreement.

South Africa, Indonesia and Bolivia have withdrawn from the BITS they signed with European and other countries, following cases taken against them by multinational companies that claimed losses of hundreds of millions of dollars, or up to US$3bil (RM10bil), in the case of Indonesia versus a British oil company.

Other developing countries are reviewing their BITS, or weighing whether to sign up to FTAs they are negotiating that contain the ISDS system.

It is a matter of time before several of them decide to pull out, or to allow existing BITS to expire and give notice that they will not be renewed.

More surprising is the recent trend of the disquiet against ISDS spreading to prominent developed countries, their institutions and establishment media.

The German government shocked Europe when it announced it would not sign up to a free trade agreement that the European Commission had concluded with Canada on behalf of the 28 European Union states because it contains the ISDS system.

It is inconceivable that the FTA can take effect if Europe’s biggest economy refuses to be part of it.

Germany has also made clear it does not want the ISDS system to be inside the trade agreement (known as the Transatlantic Trade and Investment Partnership, TTIP) that the European Commission is negotiating with the United States.

This is a remarkable turn-around since Germany has been one of the main advocates of the BITS.

One reason for this is that two cases have been taken against the country by a Swedish company claiming many billions of euros of lost profits because of the new German policies to phase out nuclear power and to tighten emissions regulations in power plants.

That the country’s environmental policies are being challenged in such an audacious way, and that this is made possible by a skewed ISDS system, outraged the public, the Parliament and the government.

Germany was not the first developed country to turn around. A few years ago, Australia decided not to enter any new BITS or FTAs that contain ISDS, after its government was sued for billions of dollars by Philip Morris for its policy requiring minimum display of corporate logos on cigarette packages.

The new Australian government has watered down this ban by considering membership of FTAs with ISDS on a case by case basis.

Meanwhile, two of the new top officials of the EC, the President and Trade Commissioner, both made known their scepticism about, if not opposition to, the ISDS when they took office a few weeks ago.

The Trade Commissioner even called the ISDS “toxic”. Both officials hinted that they would make it difficult for future EU trade deals to contain the ISDS.

The new EC leaders were partly responding to the European Parliament, many of whose members are strongly opposed to having the ISDS in the TTIP.

The European non-governmental organisations are also up in arms against the ISDS, accusing the international tribunals that hear the cases of being heavily biased in favour of investors and against the states, and also of being riddled with conflict of interest as the same 10 to 20 law firms act as lawyers in some cases and as arbitrators in other cases.

In one case, the Chair of the tribunal that ruled against Argentina was later found to be a Board member of the parent company of the firm that sued and won. Yet the review panel ruled that the decision would remain and ruled against the case being heard again by another panel.

Another blow against the ISDS system came when the Secretary-General of the OECD, the club of developed countries, wrote an opinion piece on the “increasing problems” of the investment treaties.

Then the Financial Times and the Economist, the two most prominent pro-free enterprise newspapers in the Western world, also joined in the onslaught against BITS. The FT even published a full-page article on what it headlined as “Toxic Deals”.

The winds of change were also evident when many governments and organisations spoke in favour of urgent reform of the whole ISDS system at the World Investment Forum organised by the United Nations Trade and Development Conference last month in Geneva.

The criticisms against ISDS include that the provisions of the treaties are problematic, the arbitration system is biased and flawed, and that national laws, Parliaments and government policies are being seriously undermined by allowing foreign investors to bypass them by taking up cases in international tribunals that do not take account of the national laws when making their decisions.

In Malaysia, political leaders including the Prime Minister and the Minister of International Trade and Industry have voiced concerns about the ISDS in the TPPA. It has also come under attack by NGOs and some Parliamentarians.

Whether the positive aspects of the TPPA outweigh the negative in the calculations of the policy makers and the Parliament remain to be seen.

In this analysis, the ISDS must be at the top or near the top of the list of “negatives”.

> Martin Khor is executive director of the South Centre, a research centre of 51 developing countries, based in Geneva. You can e-mail him at The views expressed here are entirely his own.

Tags / Keywords: Martin Khor, columnist

More Articles

Filter by

Tide turns on investor treaties

24 November 2014

The winds of change are blowing against trade and investment treaties that contain the investor-sue-the-state system, which is now described as ‘toxic’ by Western politicians and media.

Messages from the end of the world

10 November 2014

The new IPCC report indicates the world is doomed if present climate and emission trends continue, but the key solutions are as elusive as before.

Tobacco, health and trade rules

27 October 2014

Malaysia is taking the lead on two fronts to prevent the use of trade and investment agreements from blocking anti-smoking measures, but will these initiatives succeed?

New hepatitis cure far too costly

13 October 2014

A new cure for hepatitis C has given new hope, but its price is far too high, while a scheme to supply poor countries excludes Malaysia and other middle-income countries.

An era of global turbulence

29 September 2014

Leaders meeting at the United Nations are facing a world under attack, and responses are so far not matching the manifold crises.

Battling to curb ‘vulture funds’

15 September 2014

Many countries face a worsening debt situation compelling an urgency to

In defence of Merdeka

1 September 2014

Independence has been achieved, yet has to be constantly defended, continuously renewed and expanded as the process of de-colonisation is on-going and new threats arise.

Alarm bells over Ebola outbreak

18 August 2014

Ebola is a deadly disease, with no approved cure. This raises various issues, and urgent steps must be taken to contain and fight it.

The Gaza carnage must stop

4 August 2014

The death and destruction going on in Gaza show that ‘the world has lost its humanity’ and that Israel has utter contempt for the United Nations.

Raining death: An Israeli artillery unit hammering the Gaza Strip. - AFP

Hit by two calamities

21 July 2014

The world must face up to the two calamities of the past week — the crash of the MAS plane and the worsening plight of Palestinians.


Recent Posts