= new reply since forum marked as read
the ISDS has virtually nothing to do with international law as generally understood. The ISDS is license for corporations to bypass. that's not an exaggeration:
there is nothing wrong with guarding against bad state actors. The ISDS goes far, far beyond that.
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Investor-state resolution has been a common component of U.S.-negotiated pacts with individual nations since the North American Free Trade Agreement in 1994. But such resolution is not currently permitted in disputes with the U.S. and EU, which are governed by the WTO. All trade deals feature some kind of international resolution for disputes, but the direct empowerment of corporations to unilaterally bring trade cases against sovereign countries is not part of WTO treaties. Under WTO rules, a company must persuade a sovereign nation that it has been wronged, leaving the decision to bring a trade case before the WTO in the hands of elected governments.
Traditionally, this proposed political empowerment for corporations has been defended as a way to protect companies from arbitrary governments or weakened court systems in developing countries. But the expansion of the practice to first-world relations exposes that rationale as disingenuous. Rule of law in the U.S. and EU is considered strong; the court systems are among the most sophisticated and expert in the world. Most cases brought against the United States under NAFTA have been dismissed or abandoned before an international court issued a ruling.
As this rightly points out, investor-state dispute resolution mechanisms were brought in for agreements with countries where the rule of law could not be depended upon. That makes no sense in the case of the US and EU, both of whose legal systems are highly developed (some might say overly so.) The Huffington Post article quotes Lori Wallach, director of Public Citizen's Global Trade Watch, who explains what she thinks is really going on here:
"The dirty little secret about [the negotiation] is that it is not mainly about trade, but rather would target for elimination the strongest consumer, health, safety, privacy, environmental and other public interest policies on either side of the Atlantic," said Lori Wallach, director of Public Citizen's Global Trade Watch. "The starkest evidence ... is the plan for it to include the infamous investor-state system that empowers individual corporations and investors to skirt domestic courts and laws and drag signatory governments to foreign tribunals."
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http://www.techdirt.com/articles/20130411/09574122678/investor-state-dispute-resolution-sleeping-monster-inside-free-trade-agreements-begins-to-stir.
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Much debate[4][5] has arisen concerning the impact of ISDS on the capacity of democratically-elected governments to implement reforms and legislative and policy programs related to public health, environmental protection and human rights.[6]
Opponents argue that investor state claims (or the threat of them) inhibit the capacity of domestic governments (the "policy space"
to pass legislation addressing perfectly legitimate public concerns, such as health and environmental protection, labour rights or human rights. Proponents of ISDS argue that states and their governments are bound by public international law, which includes bilateral investment treaties and international investment agreements. Under this view, the "right to regulate" has not been "lost" by the states, but on the contrary has been consciously designed by states not to allow for breach of investor's protected rights. The accession to instruments of public international law guaranteeing such rights is an exercise of democratic constitutional power and binds the acceding state, even if its future government changes. In this perspective, they say, future governments who feel "undemocratically restricted" in their "policy space" had better remember that it is the act of a democratically elected former government that binds them.
Opponents also argue that arbitrations are carried out in secret by trade lawyers who earn income from the parties and are not accountable to the public or required to take into account broader constitutional and international law human rights norms.[7] Proponents of ISDS point out that confidentiality is a standard feature of all arbitration and one that enables a constructive, de-politicized and fact-oriented atmosphere of dispute resolution. Also, most ICSID awards, although confidential, are de facto published by consent of the parties. It is further pointed out that judges are not elected in most countries outside the US and UK, so that "public accountability of judges" may not be considered a standard of public international law. In any event, they say, the qualification of ISDS arbitrators matches or excels the qualification of most court judges.
Digital rights activist Joe Karaganis has described investor-state dispute settlement regulations as "corporate sovereignty".[8] According to journalist Glyn Moody, the term "represents the rise of the corporation as an equal of the nation state". Proponents of ISDS point out, that still, only states are sovereign and that no investor protection nor ISDS exists, which has not been created by states themselves by means of public international law. Also, while admitting that the position of corporations under ISDS resembles that of a state in state-state-arbitrations, they say, that this is justified, as corporations who invest in a Host State are uniquely vulnerable to Host State intervention, often for decades.
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http://en.wikipedia.org/wiki/Investor-state_dispute_settlement#Debates
