Statement on ISDS and climate

ISDS.bilaterals.org

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Photo: Global Justice Now

14 November 2022

Statement on ISDS and climate

Civil society organisations are calling on governments to remove the threat that ISDS (investor state dispute settlement) poses to the climate. The following statement outlines our primary concerns and demands. We seek to put pressure on our governments as they meet at COP 27 in November 2022.

Please read it and consider signing on using the form at the bottom

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How treaties protecting fossil fuel investors could jeopardize global efforts to save the climate – and cost countries billions

theconversation.com

Fossil fuel companies have access to an obscure legal tool that could jeopardize worldwide efforts to protect the climate, and they’re starting to use it. The result could cost countries that press ahead with those efforts billions of dollars.

Over the past 50 years, countries have signed thousands of treaties that protect foreign investors from government actions. These treaties are like contracts between national governments, meant to entice investors to bring in projects with the promise of local jobs and access to new technologies.

Tiếp tục đọc “How treaties protecting fossil fuel investors could jeopardize global efforts to save the climate – and cost countries billions”

Climate change expert report warns that ISDS can block climate action

Photo: StopISDS / Twitter

AFTINET | 6 April 2022

Climate change expert report warns that ISDS can block climate action

April 6, 2022: For the first time, the Intergovernmental Panel on Climate Change (IPCC) has warned that climate action is being jeopardised by trade agreements which give global corporations the right to sue governments through clauses known as ‘Investor State Dispute Settlement’ mechanisms, or ISDS.

In its Sixth Assessment Report on the impacts of climate change, the IPCC warned that ISDS can “be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets.”

The report indicates that the problem is not isolated to one specific agreement or institution, but that a network of bilateral trade and investment treaties function to protect fossil fuel interests:

“A large number of bilateral and multilateral agreements, including the 1994 Energy Charter Treaty, include provisions for using a system of investor-state dispute settlement (ISDS) designed to protect the interests of investors in energy projects from national policies that could lead their assets to be stranded.”

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Investor–state disputes in the fossil fuel industry

Photo: haglundc / CC BY-NC 2.0

isds.bilaterals.org

IISD | 31 December 2021

Investor–state disputes in the fossil fuel industry

By Lea Di Salvatore

Executive Summary

The fossil fuel industry is the most significant contributor to climate change. As the consequences of burning fossil fuels become increasingly evident, policy-makers across the globe are stepping up their efforts to curb emissions.These actions inevitably aim at curtailing fossil fuel activities. However, under current international investment law (IIL), foreign investments in fossil fuel projects are granted special protection and access to investor–state dispute settlement (ISDS). Through this system, investors can bring claims to international tribunals regarding regulatory measures adopted by a host state that they allege breach their investment privileges under IIL.

This report analyses the trends in investor–state disputes initiated by investors in the fossil fuel industry to understand the extent to which this industry relies on ISDS to protect its investments.The emerging picture is that the fossil fuel industry has been a pioneer of the ISDS system and has been using it extensively to protect its investments. This protection can hinder the development and implementation of measures to tackle climate change and can present a major obstacle for countries seeking to phase out fossil fuels.

Tiếp tục đọc “Investor–state disputes in the fossil fuel industry”

‘Either we kill it, or it will kill us’: The fight to dismantle a shadow court system threatening climate goals

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CNBC | 24 November 2021

by Sam Meredith

LONDON — The Energy Charter Treaty is not widely known, yet it’s feared the influence of this international agreement could be enough by itself to derail hopes of capping global heating to 1.5 degrees Celsius.

The ECT contains a highly contentious legal mechanism that allows foreign energy companies to sue governments over climate action that could hurt future profits.

These “corporate court” cases, sometimes referred to as investor-state dispute settlements, are highly secretive, take place outside of the national legal system and can often lead to far larger financial awards than companies might otherwise expect.

Tiếp tục đọc “‘Either we kill it, or it will kill us’: The fight to dismantle a shadow court system threatening climate goals”

Will ‘Investor-State Arbitration’ Survive the COVID-19 Crisis?

07.05.20 | 0 Comments

opinionjuris.org

[Somesh Dutta specializes in international dispute resolution. He is currently working with the Max Planck Institute Luxembourg for International, European & Regulatory Procedural Law as a Research Fellow and is a member of the International Max Planck Research School for Successful Dispute Resolution (IMPRS-SDR).]

In particular, developing economies with a large consumer base may have a crucial role in shaping the future of international investment adjudication, and thus an influence on the future flow of capital for global economic growth.

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First Japan investment treaty claim renewable energy disputes in Asia

ISDS.bilateral.org

by Edwina Kwan, Amanda Lees, Patric McGonigal and Nick Horton

The global energy transition to counteract the impacts of climate change has seen an enormous growth of investments into renewable energy projects around the world. With China pledging to be carbon neutral by 2060 and other countries following suit, there are extensive opportunities for investment in renewables. However, the changing regulatory, political, and technological environment of the renewable energy sector poses real risks for investors. These risks are likely to lead to an increase in disputes between investors, host countries and commercial contracting parties.

Below, we highlight some recent international disputes in the renewable energy sector and consider the impact of these cases, in particular the first case against Japan, for foreign investors in renewable projects.

Damages in ISDS: Just compensation or highway robbery?

CCSI | 2 November 2020

CCSI (Columbia Center on Sustainable Settlement, Columbia University) hosted an online discussion with George Kahale on issues surrounding valuation in ISDS disputes, which has become the most dangerous aspect of ISDS, as evidenced by the many enormous damages awards of recent years.

This discussion was open to all government officials, civil society, international organizations, and academics.

A transcript of the event is available here.

- George Kahale III

George Kahale is the chairman of Curtis, Mallet-Prevost, Colt & Mosle LLP. He has represented many governments and State companies in international transactions and disputes, including several of the world’s largest and best known international arbitrations.

Read alsoISDS: The wild, wild west of international law and arbitration

Does investor protection increase foreign direct investment? A meta‐analysis

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Journal of Economic Surveys | 30 September 2020

Does investor protection increase foreign direct investment? A meta‐analysis

par Josef C. Brada, Zdenek Drabek, Ichiro Iwasaki

- Abstract

We undertake a meta‐analysis of the effects of international investment agreements for the protection of foreign investors on foreign direct investment using 2107 estimates drawn from 74 studies. Our meta‐analysis finds robust evidence that effect of international investment agreements is so small as to be considered zero. However, our results do not rule out the possibility that the effect of these agreements is, in fact, positive and that current research methods are insufficiently powerful or precise to identify the underlying genuine effect. FDI from developed countries appears to be more responsive to the existence of investment protection, and there is evidence of publication–selection bias in favour of studies that find a positive effect for investor protection.

Read more (pdf)Does investor protection increase foreign direct investment? A meta‐analysis(PDF – 514.8 kb)

Does investor protection increase foreign direct investment? A meta‐analysis

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Journal of Economic Surveys | 30 September 2020

Does investor protection increase foreign direct investment? A meta‐analysis

par Josef C. Brada, Zdenek Drabek, Ichiro Iwasaki

- Abstract

We undertake a meta‐analysis of the effects of international investment agreements for the protection of foreign investors on foreign direct investment using 2107 estimates drawn from 74 studies. Our meta‐analysis finds robust evidence that effect of international investment agreements is so small as to be considered zero. However, our results do not rule out the possibility that the effect of these agreements is, in fact, positive and that current research methods are insufficiently powerful or precise to identify the underlying genuine effect. FDI from developed countries appears to be more responsive to the existence of investment protection, and there is evidence of publication–selection bias in favour of studies that find a positive effect for investor protection.

Read more (pdf)Does investor protection increase foreign direct investment? A meta‐analysis(PDF – 514.8 kb)

Japan backs ISDS in fierce debate at Energy Charter Treaty review

ISDS.bilateral.org

AFTINET | 17 September 2020

Japan backs ISDS in fierce debate at Energy Charter Treaty review

Reports on the Energy Charter Treaty process to ‘modernise’ continue to demonstrate entrenched opposition to efforts to make it support the Paris Climate Agreement to limit global warming to less than 2°C.

The European Union has proposed amendments that reinforce governments’ “right to regulate” on issues like public health and the environment. But any change requires unanimous agreement by the ECT’s 53 signatories.

On September 8, 2020, 97 European Parliament MPs and another 49 MPs from national parliaments in Europe  content/uploads/sites/2/2020/09/Statement-on-Energy-Charter-Treaty-ENG_080920.pdf” target=”_blank” rel=”external noopener”>called for the “EU negotiators to ensure that the provisions in the ECT that protect foreign investment in fossil fuels are deleted and thus removed from the ECT. Similarly, ISDS provisions need to be scrapped or fundamentally reformed and limited. If this is not achieved at the end of the 3rd negotiation round planned for the autumn, we ask EU Member States to explore pathways to jointly withdraw from the ECT by the end of 2020”.

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Investor-state disputes arising from COVID-19: balancing public health and corporate wealth

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ISDS Platform

Corrs Chambers Westgarth | 27 August 2020

Investor-state disputes arising from COVID-19: balancing public health and corporate wealth

In response to the COVID-19 pandemic, governments globally are engaging in a difficult balancing act of protecting public health, mitigating economic damage and avoiding interference with private rights.

Even during a global pandemic, however, States are likely to be challenged for implementing measures that interfere with an investor’s private rights. Governments the world over have introduced COVID-19 prevention measures such as hard border closures, city and regional lockdowns, suspension of construction, production and mining, nationalisation of private industries and import and export restrictions.

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How World Bank arbitrators mugged Pakistan

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Project Syndicate | 26 November 2019

How World Bank arbitrators mugged Pakistan

Thanks to the World Bank’s flawed and corrupt investment arbitration process, the rich are making a fortune at the expense of poor countries. The latest shakedown is a $5.9 billion award against Pakistan’s government in favor of two global mining companies for an illegal project that was never approved or carried out.

NEW YORK – Wall Street hedge funds and lawyers have turned an arcane procedure of international treaties into a money machine, at the cost of the world’s poorest people. The latest shakedown is a $5.9 billion award against Pakistan’s government in favor of two global mining companies – Antofagasta PLC of Chile and Barrick Gold Corporation of Canada – for a project that was never approved by Pakistan and never carried out. Tiếp tục đọc “How World Bank arbitrators mugged Pakistan”

Hiệp định thương mại lớn nhất thế giới sẽ không cho phép doanh nghiệp kiện chính phủ

hoinhap.org.vn – Thứ hai, 23 Tháng 9 2019 16:54

RCEP-1024x768

Hiệp định Đối tác Kinh tế Toàn diện (RCEP) đang được ca ngợi là niềm hi vọng lớn nhất để duy trì dòng chảy thương mại toàn cầu từ khi Tổ chức Thương mại Thế giới (WTO) bị công kích.

WTO vẫn chưa sụp đổ, tuy nhiên, tổ chức này đang phải chịu áp lực dữ dội từ hai mũi tấn công. Một mặt, Tổng thống Mỹ Donald Trump đang phớt lờ các quy tắc của tổ chức và đơn phương áp thuế lên Trung Quốc và các nước khác. Mặt khác, Mỹ đang ngăn cản việc bổ nhiệm thẩm phán cho cơ quan phúc thẩm của WTO. Vấn đề này đồng nghĩa với việc, từ sau tháng 12, cơ quan phúc thẩm của WTO sẽ không còn đủ thành viên để tiếp nhận những vụ kiện mới. Tiếp tục đọc “Hiệp định thương mại lớn nhất thế giới sẽ không cho phép doanh nghiệp kiện chính phủ”

Pháp luật đầu tư quốc tế và thực tiễn áp dụng trong giải quyết tranh chấp đầu tư quốc tế

Kết quả hình ảnh cho giải quyết tranh chấp đầu tư quốc tế

moj.gov.vn

Phần 1, Mở đầu

Kể từ sau Chiến tranh thế giới thứ 2, các quốc gia trên thế giới đã cùng tham gia xây dựng một cơ chế toàn cầu cho hoạt động đầu tư thông qua đàm phán các điều ước quốc tế về đầu tư, thương được gọi là các hiệp định đầu tư quốlc tế (hiệp định đầu tư).[1]

Các hiệp định đầu tư gồm ba loại, cụ thể là:

  1. các hiệp định đầu tư song phương, thường được gọi là các BIT. Việt Nam hiện ký hơn 60 Hiệp định khuyến khích và bảo hộ đầu tư song phương với các nước và vùng lãnh thổ trên thế giới;
  2. các hiệp định thương mại song phương trong đó có chương đầu tư như Hiệp định đối tác toàn diện Việt Nam – Nhật Bản, Hiệp định thương mại tự do Việt Nam – Hàn Quốc…
  3. các hiệp định đa phương có quy định về đầu tư như Hiệp định Đầu tư toàn diện ASEAN, Hiệp định TPP, Hiệp định Đối tác kinh tế ASEAN – Nhật Bản…

Tiếp tục đọc “Pháp luật đầu tư quốc tế và thực tiễn áp dụng trong giải quyết tranh chấp đầu tư quốc tế”