What is the Investor-State Dispute Settlement, or ISDS?

What this arcane phrase refers to is the right of foreign companies to sue national governments of the signatory countries, not in domestic courts, but in opaque international forums, if they think some element of that government’s policy is harming their interests.

If a mining company, for example, is unhappy with environmental safeguards which inhibit its operations, if a pharmaceutical company is unhappy with the prices it gets for its drugs, if a chemical company is upset with the banning of an agricultural pesticide, if a tobacco company does not like laws restricting cigarette sales, ISDS provisions in trade agreements give them the means to challenge government policy and to seek compensation.

And they do this increasingly often, sometimes claiming enormous amounts of money. According to a report in May 2013 by the United Nations Conference on Trade and Development, which monitors these things, a record 58 ISDS cases were begun in 2012. In the same year, decisions were made on 42 cases by an assortment of more or less credible international arbiters. Only 31 of these were publicly disclosed, but of those, 70 per cent went in favour of the corporations, at least in part; and nine resulted in significant awards for damages, including one – to an oil company which sued Ecuador – for a record US$1.77 billion.

cods wrote on Sep 21^st, 2013 at 4:13pm:


which thread?

So Howard was wrong and Abbott is right to reconsider including ISDS clauses in our free trade agreements?

What's your reasoning, cods?

In 2009, the then ALP Government requested that the Productivity Commission undertake a study into the impact of bilateral and regional trade agreements on Australia’s economic performance. The Commission received submissions from business, government and non-government organisations and produced a final report in December 2010.

The study received a large number of submissions on the topic of ISDS, and reviewed these submissions in its report, some of which is quoted above.

After reviewing the evidence on ISDS, the report found no evidence that ISDS resulted in greater inflows of foreign direct investment. It also found no evidence for some of the other key arguments used to justify ISDS. For example, it found no evidence of market failure resulting from political risk to foreign investors, and no evidence that regulation is systematically biased against foreign investors (Productivity Commission 2010: 269-70).

On the contrary, the report concluded that that "experience in other countries demonstrates that there are considerable policy and financial risks arising from ISDS provisions” (Productivity Commission 2010: 274).
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