#isds

[mostlysignssomeportents]

End of the line for corporate sovereignty

I'm on tour with my new, nationally bestselling novel The Bezzle! Catch me next weekend (Mar 30/31) in ANAHEIM at WONDERCON, then in Boston with Randall "XKCD" Munroe (Apr 11), then Providence (Apr 12), and beyond!

Back in the 1950s, a new, democratically elected Iranian government nationalized foreign oil interests. The UK and the US then backed a coup, deposing the progressive government with one more hospitable to foreign corporations:

https://en.wikipedia.org/wiki/Nationalization_of_the_Iranian_oil_industry

This nasty piece of geopolitical skullduggery led to the mother-of-all-blowbacks: the Anglo-American puppet regime was toppled by the Ayatollah and his cronies, who have led Iran ever since.

For the US and the UK, the lesson was clear: they needed a less kinetic way to ensure that sovereign countries around the world steered clear of policies that undermined the profits of their oil companies and other commercial giants. Thus, the "investor-state dispute settlement" (ISDS) was born.

The modern ISDS was perfected in the 1990s with the Energy Charter Treaty (ECT). The ECT was meant to foam the runway for western corporations seeking to take over ex-Soviet energy facilities, by making those new post-Glasnost governments promise to never pass laws that would undermine foreign companies' profits.

But as Nick Dearden writes for Jacobin, the western companies that pushed the east into the ECT failed to anticipate that ISDSes have their own form of blowback:

https://jacobin.com/2024/03/energy-charter-treaty-climate-change/

When the 2000s rolled around and countries like the Netherlands and Denmark started to pass rules to limit fossil fuels and promote renewables, German coal companies sued the shit out of these governments and forced them to either back off on their democratically negotiated policies, or to pay gigantic settlements to German corporations.

ISDS settlements are truly grotesque: they're not just a matter of buying out existing investments made by foreign companies and refunding them money spent on them. ISDS tribunals routinely order governments to pay foreign corporations all the profits they might have made from those investments.

For example, the UK company Rockhopper went after Italy for limiting offshore drilling in response to mass protests, and took $350m out of the Italian government. Now, Rockhopper only spent $50m on Adriatic oil exploration – the other $300m was to compensate Rockhopper for the profits it might have made if it actually got to pump oil off the Italian coast.

Governments, both left and right, grew steadily more outraged that ISDSes tied the hands of democratically elected lawmakers and subordinated their national sovereignty to corporate sovereignty. By 2023, nine EU countries were ready to pull out of the ECT.

But the ECT had another trick up its sleeve: a 20-year "sunset" clause that bound countries to go on enforcing the ECT's provisions – including ISDS rulings – for two decades after pulling out of the treaty. This prompted European governments to hit on the strategy of a simultaneous, mass withdrawal from the ECT, which would prevent companies registered in any of the ex-ECT countries from suing under the ECT.

It will not surprise you to learn that the UK did not join this pan-European coalition to wriggle out of the ECT. On the one hand, there's the Tories' commitment to markets above all else (as the Trashfuture podcast often points out, the UK government is the only neoliberal state so committed to austerity that it's actually dismantling its own police force). On the other hand, there's Rishi Sunak's planet-immolating promise to "max out North Sea oil."

But as the rest of the world transitions to renewables, different blocs in the UK – from unions to Tory MPs – are realizing that the country's membership in ECT and its fossil fuel commitment is going to make it a world leader in an increasingly irrelevant boondoggle – and so now the UK is also planning to pull out of the ECT.

As Dearden writes, the oil-loving, market-worshipping UK's departure from the ECT means that the whole idea of ISDSes is in danger. After all, some of the world's poorest countries are also fed up to the eyeballs with ISDSes and threatening to leave treaties that impose them.

One country has already pulled out: Honduras. Honduras is home to Prospera, a libertarian autonomous zone on the island of Roatan. Prospera was born after a US-backed drug kingpin named Porfirio Lobo Sosa overthrew the democratic government of Manuel Zelaya in 2009.

The Lobo Sosa regime established a system of special economic zones (known by their Spanish acronym, "ZEDEs"). Foreign investors who established a ZEDE would be exempted from Honduran law, allowing them to create "charter cities" with their own private criminal and civil code and tax system.

This was so extreme that the Honduran supreme court rejected the plan, so Lobo Sosa fired the court and replaced them with cronies who'd back his play.

A group of crypto bros capitalized on this development, using various ruses to establish a ZEDE on the island of Roatan, a largely English-speaking, Afro-Carribean island known for its marine reserve, its SCUBA diving, and its cruise ship port. This "charter city" included every bizarre idea from the long history of doomed "libertarian exit" projects, so ably recounted in Raymond Craib's excellent 2022 book Adventure Capitalism:

https://pluralistic.net/2022/06/14/this-way-to-the-egress/#terra-nullius

Right from the start, Prospera was ill starred. Paul Romer, the Nobel-winning economist most closely associated with the idea of charter cities, disavowed the project. Locals hated it – the tourist shops and restaurants on Roatan all may sport dusty "Bitcoin accepted here" signs, but not one of those shops takes cryptocurrency.

But the real danger to Prospera came from democracy itself. When Xiomara Castro – wife of Manuel Zelaya – was elected president in 2021, she announced an end to the ZEDE program. Prospera countered by suing Honduras under the ISDS provisions of the Central America Free Trade Agreements, seeking $10b, a third of the country's GDP.

In response, President Castro announced her country's departure from CAFTA, and the World Bank's International Centre for Settlement of Investment Disputes:

https://theintercept.com/2024/03/19/honduras-crypto-investors-world-bank-prospera/

An open letter by progressive economists in support of President Castro condemns ISDSes for costing latinamerican countries $30b in corporate compensation, triggered by laws protecting labor rights, vulnerable ecosystems and the climate:

https://progressive.international/wire/2024-03-18-economists-the-era-of-corporate-supremacy-in-the-international-trade-system-is-coming-to-an-end/en

As Ryan Grim writes for The Intercept, the ZEDE law is wildly unpopular with the Honduran people, and Merrick Garland called the Lobo Sosa regime that created it "a narco-state where violent drug traffickers were allowed to operate with virtual impunity":

https://theintercept.com/2024/03/19/honduras-crypto-investors-world-bank-prospera/

The world's worst people are furious and terrified about Honduras's withdrawal from its ISDS. After 60+ years of wrapping democracy in chains to protect corporate profits, the collapse of the corporate kangaroo courts that override democratic laws represents a serious threat to oligarchy.

As Dearden writes, "elsewhere in the world, ISDS cases have been brought specifically on the basis that governments have not done enough to suppress protest movements in the interests of foreign capital."

It's not just poor countries in the global south, either. When Australia passed a plain-packaging law for tobacco, Philip Morris relocated offshore in order to bring an ISDS case against the Australian government in a bid to remove impediments to tobacco sales:

https://isds.bilaterals.org/?philip-morris-vs-australia-isds

And in 2015, the WTO sanctioned the US government for its "dolphin-safe" tuna labeling, arguing that this eroded the profits of corporations that fished for tuna in ways that killed a lot of dolphins:

https://theintercept.com/2015/11/24/wto-ruling-on-dolphin-safe-tuna-labeling-illustrates-supremacy-of-trade-agreements/

In Canada, the Conservative hero Steven Harper entered into the Canada-China Foreign Investment Promotion and Protection Agreement, which banned Canada from passing laws that undermined the profits of Chinese corporations for 31 years (the rule expires in 2045):

https://www.vancouverobserver.com/news/harper-oks-potentially-unconstitutional-china-canada-fipa-deal-coming-force-october-1

Harper's successor, Justin Trudeau, went on to sign the Canada-EU Trade Agreement that Harper negotiated, including its ISDS provisions that let EU corporations override Canadian laws:

https://www.cbc.ca/news/politics/trudeau-eu-parliament-schulz-ceta-1.3415689

There was a time when any challenge to ISDS was a political third rail. Back in 2015, even hinting that ISDSes should be slightly modified would send corporate thinktanks into a frenzy:

https://www.techdirt.com/2015/07/20/eu-proposes-to-reform-corporate-sovereignty-slightly-us-think-tank-goes-into-panic-mode/

But over the years, there's been a growing consensus that nations can only be sovereign if corporations aren't. It's one thing to treat corporations as "persons," but another thing altogether to elevate them above personhood and subordinate entire nations to their whims.

With the world's richest countries pulling out of ISDSes alongside the world's poorest ones, it's feeling like the end of the road for this particularly nasty form of corporate corruption.

And not a moment too soon.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/03/27/korporate-kangaroo-kourts/#corporate-sovereignty

Image: ChrisErbach (modified) https://commons.wikimedia.org/wiki/File:UnitedNations_GeneralAssemblyChamber.jpg

CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0/deed.en

[kp777]

By Julia Conley

Common Dreams

June 6, 2024

[see ISDS in Wikipedia]

A week after the European Union announced its withdrawal from the controversial Energy Charter Treaty, which has been criticized for being one of many global agreements that allow fossil fuel companies to sue governments, a coalition on Thursday released an analysis showing just how lucrative such deals have been for firms whose emissions are wrecking havoc on the planet.

The Transnational Institute, the Trade Justice Movement (TJM), Power Shift, and the Institute for Policy Studies joined forces to unveil the Global ISDS Tracker, which includes data on more than 1,300 cases that have made their way to secretive tribunals set up by investor-state dispute mechanisms in treaties including the Energy Charter Treaty.

ISDS courts allow fossil fuel companies and other large corporations to sue governments for compensation over policies that harm their profits, such as regulations to curb planet-heating emissions or air pollution, which is responsible for 1 in 5 deaths worldwide.

Many judgments made by ISDS tribunals are kept secret, but the Global ISDS Tracker revealed that $114 billion in public funds have been paid out to investors across industries, with fossil fuel companies and investors raking in $80.2 billion of that.

Another $48 billion in public money is expected to go to fossil fuel firms from ISDS disputes in the coming years if current trends continue, said the groups behind the tracker.

Tom Wills, director of TJM, said the tracker proves what trade and climate justice groups have said "for years: ISDS is the secret weapon for fossil fuel companies against climate laws."

"Corporate courts are also used to threaten governments not to give in to popular local or national demands for climate action," said Wills. "This needs to be put to an end. The data shows reform is urgently needed."

The tracker includes the $15 billion compensation lawsuit filed by TC Energy against the U.S. government when President Joe Biden canceled the company's permit to build the Keystone XL pipeline, which would have carried 830,000 barrels of tar sands oil each day.

The largest ISDS claim currently being adjudicated is Zeph Investment's case against the Australian government, which the firm says "effectively destroyed" its plans for a major mine, costing it $200 billion.

As Common Dreams reported last November, civil society groups have called on the Biden administration to dismantle the ISDS system within the Americas Partnership for Economic Prosperity, with one campaigner arguing that ISDS was "created for and by powerful, well-organized corporations, and has served their interests almost exclusively."

Lucía Bárcena, trade policy officer at the Transnational Institute, said eliminating ISDS in treaties should be a top priority for trade and climate justice campaigners in the coming years.

"In this challenging moment, when there is more climate action needed from states," said Bárcena, "it is unbearable to have corporate courts that can wash all the efforts away."

[rjzimmerman]

Excerpt from this story from Inside Climate News:

Before the sun set on his inauguration day, Joe Biden reversed a raft of his predecessor’s deregulation policies with the stroke of a pen. Among them was an order revoking the permit for the controversial Keystone XL oil pipeline. 

Canceling the project was a campaign pledge to address the climate crisis. But looming over that decision was the risk that an obscure but powerful international legal system could force the United States to pay billions of dollars to Keystone XL’s Canadian developer, TC Energy. 

That system—embedded in thousands of trade and investment treaties—allows corporations to drag governments before panels of arbitrators, usually behind closed doors. Governments have been ordered to pay billions of dollars in damages to oil and mining companies for violating those treaties. While the system was intended to protect foreign investors from unfair treatment or asset seizure, many environmental advocates, lawyers and politicians say it is now being used to win awards from governments that enact new environmental regulations or raise taxes on polluting industries.

Increasingly, these critics warn the system threatens climate action by punishing governments that phase out fossil fuels. 

The $15 billion claim TC Energy brought against the United States was one of the largest-ever in response to a climate policy. The company lost earlier this month, but the case was dismissed on a technicality and its outcome says nothing about other pending cases around the world.

Australia, Canada, Colombia and Slovenia are facing tens of billions of dollars in claims from companies for phasing out coal power plants, rejecting mining licenses or disallowing liquefied natural gas permits. In 2022, Italy was ordered to pay a British oil company roughly $200 million after offshore drilling restrictions upended the firm’s development plans. 

In other countries, the system set up for these claims—investor-state dispute settlement, or ISDS—has driven up costs of closing coal power plants, prevented governments from canceling oil and gas licenses or otherwise impeded efforts to reduce fossil fuel use, government ministers and researchers say. Companies even win awards despite leaving behind environmental contamination, violating human rights or breaking national laws.

The ISDS system is uniquely daunting for governments because arbitrators overseeing the cases can award compensation not just for real losses but also for unearned, expected future profits. It’s a key reason awards can balloon into the billions of dollars. 

Governments already face numerous practical and political obstacles as they attempt to move away from fossil fuels, said Canadian lawyer and professor Gus Van Harten, who has studied ISDS’s evolution for decades. “This system is providing an unwarranted and unexpected further minefield.” 

As Mary Robinson, former president of Ireland, put it in a speech this year: “I cannot overstate just how perverse this is.”

[channeledhistory]

There is an obscure mechanism by which fossil fuel companies maintain their global domination even as their products are destroying our futures. Most rank-and-file climate activists haven’t heard of it and most news media rarely discuss it in great detail. It is a tool that has its origins in colonialism and advantages corporate power over democracy. The technical term for such a tool is “Investor-state dispute settlement” or ISDS. And while it sounds boring and technical, it is crucial that we familiarize ourselves with it in order to dismantle it.

The Global ISDS tracker, a newly launched online database, describes these as “secretive corporate tribunals.” When nations enter into trade agreements with one another, they usually include a clause on using the benign-sounding ISDS to resolve corporate disputes with national regulators. In other words, if a corporation originating in one nation sees its profits threatened by regulations or nationalization in another nation, it can sue that second government.

When applied to curbing carbon emissions in order to save our planet’s ability to sustain life, one can see that such tribunals can be extremely problematic. Country A decides to transition away from the oil and gas industry toward green, renewable energy. However, an oil company based in Country B sues via an ISDS agreement to extract its lost profits. That’s precisely what is happening, to the tune of $327 billion, according to the Global ISDS Tracker. “[F]ossil fuel cases… can devastate public budgets or even bankrupt a country.”

For example, Nigeria is currently facing a massive set of damages determined by an ISDS tribunal to be paid to a UK-based company for a gas project to the tune of 30 percent of the entire nation’s foreign exchange reserves. And, foreign mining companies are demanding $30 billion from the Republic of Congo using ISDS tribunals. That’s twice the amount of Congo’s gross domestic product (GDP).

Former UN climate envoy and former Irish President Mary Robinson, who said she was “outraged” when she found out about oil and gas companies using ISDS to extort nations, explained that “if countries do the right thing on climate, they have to compensate fossil fuel companies.” Where did ISDSs come from and how are they remotely justifiable in an era when society broadly agrees on democracy as the best form of government? Former U.S. President Barack Obama’s administration explained in the context of the 2016 free trade agreement called the Trans-Pacific Partnership, that “ISDS is specifically designed to protect American investors abroad from discrimination and denial of justice,” and that it is a “more peaceful, better way to resolve trade conflicts” compared to the “gunboat diplomacy” of earlier eras. […]

According to a 2023 report by David Boyd, the UN’s special rapporteur on human rights and the environment, “[o]f the 12 largest ISDS awards to date, 11 involve cases brought by fossil fuel and mining investors.” The $95 billion they extracted from nations using ISDS “likely exceeds the total amount of damages awarded by all courts to victims of human rights violations in all States worldwide, ever,” wrote Boyd.

The Pulitzer Prize-winning media outlet Inside Climate News prefers to call ISDS “economic colonialism,” especially given that “the majority of cases have been filed by corporations from the United States, Europe, and Canada against developing nations.” Colonialism is a fitting descriptor. Gus Van Harten explained in his 2020 book “The Trouble with Foreign Investor Protection,” that ISDS treaties “originate in the efforts of former colonial powers and international organizations, especially the World Bank, to constrain newly independent countries.” In other words, ISDS is a means by which to extend colonialism after the end of physical occupation.

Joseph Stiglitz, a Nobel prize-winning economist, prefers even harsher terminology. He called ISDS mechanisms “litigation terrorism,” because they “instill fear of environmental regulations, climate regulations because you know that it’s going to be costly” for governments.

British commentators had pressured the UK government to exit from treaties such as the “Energy Charter Treaty” (ECT) that require ISDS tribunals. In February 2024, the UK announced it would quit the ECT, following in the footsteps of France, Germany, Spain, and the Netherlands. Most recently Members of the European Parliament also backed a proposal to end its ECT membership. It was called a “historic” vote against a treaty seen as a “climate killer.” It’s time for the U.S. to do the same. Last November, hundreds of climate justice and civil society groups signed on to a letter urging President Joe Biden to end ISDS mechanisms built into a trade agreement with nearly a dozen Latin American and Caribbean nations called Americas Partnership for Economic Prosperity. The signatories explained that ISDS was “a global governance regime that prioritizes corporate rights over those of governments, people, and the planet.”

This was followed by a similar letter in December 2023 signed by more than 40 lawmakers from the Senate and House urging Biden to remove ISDS provisions from all trade agreements. The signatories, including Senators Elizabeth Warren and Sheldon Whitehouse, lauded Biden for his “powerful action when he shut down the Keystone XL pipeline project, preventing the construction of a tar sands oil pipeline,” and pointed out that “TC Energy (formerly known as TransCanada)—the company behind the now-defunct pipeline—has filed an ISDS claim for billions of dollars to be litigated not in an American court, but in a shady international tribunal.”

What good does it do Biden and the U.S. for him to be a climate champion if any steps he takes to undermine fossil fuel domination are countered by a powerful and secretive corporate weapon? Momentum against ISDS provisions is growing. In April 2024, hundreds of academics in law and economics also wrote to Biden urging him to “eliminate ISDS liability from existing agreements,” and offering valuable expertise on how it can be done. Biden had said in 2020 that he was against ISDS provisions—in spite of his role as Vice President to the pro-ISDS Obama. In a letter to the United Steelworkers union, he said “I oppose the ability of private corporations to attack labor, health, and environmental policies through the investor-state dispute settlement (ISDS) process, and I oppose the inclusion of such provisions in future trade agreements.” But what about current trade agreements? It’s troubling that multinational corporations from the U.S. launched the highest number of ISDS cases worldwide. The U.S. is currently the top producer of crude oil in the world. U.S. oil and gas companies are reaping extraordinarily high profits while taking advantage of billions of dollars of public subsidies in the form of tax breaks. The least Biden can do to curb a deadly industry that is threatening our entire species is to take action against ISDS provisions in existing trade agreements.

[carolinemillerbooks]

New Post has been published on Books by Caroline Miller

New Post has been published on https://www.booksbycarolinemiller.com/musings/the-system-is-rigged/

The System Is Rigged

It’s old news that a New York jury found former president Donald Trump guilty of 34 felony counts for falsifying business records before the 2016 presidential election.  He protested that the trial was rigged, naturally.  What else can a guilty man running for the White House a second time say?   His followers need none of his excuses. They are pledged to believe his version of events. A few will admit Trump is a flawed vessel.  They give him their blessing because they are  White Christian Nationalists  who believe he is doing God’s work. The country isn’t leaning in their direction,  however. The alliance between would-be saints and an uber-sinner might be laughable if they weren’t abetted by powerful allies. The names of some of these allies appear in the  April/May edition of Forbes magazine.  Not White Christian Nationalists, they are members of the billionaire club that controls how money flows around the globe. Liquidity allows them to cast long shadows in both local and international affairs and maintain …heavily directorial systems  [that] are fundamentally rigged to the benefit of those at the very top. What they share with White Christian Nationalists is an antipathy to democracy and the notion of one man one vote.  Driven by blind ambitions, these money changers fail to see how much their wealth derives from the governmental structures they seek to undermine.  Where would Elan Musk be without federal subsidies?   And thanks to the holes they have poked in our tax laws many of them, like Trump, can boast that they’ve never paid their fair share.  Not one of them has given  94% of their income to the public good since dinosaurs roamed the steamy forests of the Saraha.  Freed of their social obligations, these entrepreneurs invest their money in schemes to influence international monetary agencies designed to regulate them.  The  Investor-State Dispute Settlement System (ISDS) is an example. One reporter alleges the organization is so degraded that multinational corporations run off with billions of taxpayer dollars. (Victories in the Global Movement Against Corporate Globalization,” by Melanie Foley, Public Citizen, May/June, pg. 10)  Look what happened in Togo.  This small nation introduced legislation to regulate cigarette content in the hope of protecting the health of its citizens. The dream died when the ISDS allowed manufacturers to sue. Knowing these multinationals had coffers many times larger than its national budget, Togo backed down.  A Boston University report on the ISDS also documents the agency’s leniency toward the fossil fuel industry. One of its regulations allows that enterprise to sue based on a claim that cutting carbon emissions harms its financial interests. How rigged is that?  Rather than fight these multinationals directly, the Union of Concerned Scientists has proposed reforms to strengthen the ballot box.  (“Strengthening Our Elections—And Our Democracy,” by Seth Schulman, Catalyst, Spring 2024, pgs. 16-17)  They point out that even the modest reform of well-designed ballots can affect the outcome of elections.  In addition, Rep. Jamie Raskin (D-Md) wants to protect our democracy by starting at the top.  He proposes to force Supreme Court judges to recuse themselves if they have apparent conflicts of interest.  His suggestion may have come too late.  The High Court dealt democracy a crippling blow in Citizen’s United.  By a  5-4 decision, it extended First Amendment rights from individuals to institutions. Since then, money has poured into our political campaigns, providing large corporations with megaphones to silence the voices of the people. You bet, Mr. Trump!  The system IS rigged. The wonder is that twelve ordinary citizens who were approved by your attorneys could arrive at a verdict and find you guilty of 34 felony counts. That unanimity makes your rage and the cries of your lackeys who call you a martyr unconvincing. What a majority of us hear is “Send in the Clowns” I do have one regret about the verdict, though, Mr.  President. Neither of you nor I will live long enough to see what history will make of your legacy.

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[knightofthenewrepublic]

[elivanto]

The Chimaera & the Eye of Sion in Ahsoka 1.08 The Jedi, the Witch, and the Warlord

[dustysalmon]

ISD Chimaera

[gameraboy2]

Imperial Star Destroyer by Joe Johnston, 1977

[hydr0phius]

Thrawn: [*chillin' on the floor in his office with art holos on*]

Karyn: How long does he stay like this?

Eli: Longest was nine hours once.

Karyn: Kriff- does he take breaks to go eat?

Eli: Pfft. No. That's why I throw a few ration bars at him every few hours.

Karyn: And he doesn't mind you throwing them at him? I've seen your arm.

Eli: *Takes a bar out of his pocket* watch.

Eli: *Fangs it at Thrawn's head*

Thrawn, without coming out of his trance: *catches it*

Karyn: Stars-

Eli: See? Fine.

Thrawn, still sort of out of it: Throw it harder next time.

Eli: Yes, sir.

Karyn: HARDER??

Thrawn: It's how I remember I have a body

Karyn: oH-

[thrawns-babygirl]

Can we talk about how extra Thrawn is for getting a decal commissioned on an I-Class Star Destroyer?

This baby is 1600 metres long.

Was this on the Empire's budget? Do you think some poor sod had to explain to the expenses department that no sir this is this isn't a mistake. Yes sir it was commissioned by The Grand Admiral. Yes sir we told him not to. No sir he didn't listen.

[spockvarietyhour]

Chimaera, "Far, Far Away"

[purringysalamiri]

Part 4 of my most recent posts, and final part. (canon, thrawn comics.)

[frc-ambaradan]

"I am Grand Admiral Thrawn. I have been away, but now I have returned. I know some of what has occurred. You will fill in the details of the rest when I come aboard. Rejoice, Captain, for the Empire will rise again."  Bill Slavicsek, A Grand Admiral Returns (1992)