During the last year, the acronym ISDS, which stands for Investor-to-State Dispute Settlement, has been dubbed the mechanism preventing state’s right to regulate, the mechanism to suck the taxpayer dry and the mechanism that will dismantle democracy. Wow, that does sound very scary. But obviously that’s far from the truth. It’s nothing but myths and lies.
And I’m tired of the anti-TTIPers and anti-ISDSers spreading these myths. I’m tired of the blatant ignorance. I’m fed up from seeing the anti-trade advocates using ISDS as a symbol of the “evil powers” of international trade. In fact, I’m so tired of the ignorance that I’m now presenting to you a challenge. It’s called the #ISDSchallenge. In this challenge, I will single-handedly take on the anti-ISDSers, their arguments and their flawed examples. Because I know, I have the facts on my side.
Because ISDS is not something new. We have around 3 000 investment treaties already, and EU is part to around 1 400 of them. It exists because international agreements such as investment treaties and trade deals aren’t always enforceable in domestic courts. Foreign investment protection does not automatically fall under domestic legal jurisdiction. Therefore, ISDS is a way to make sure the parties honour the agreement. Ever heard of pacta sunt servanda? Guessed so. It’s about strengthening the rule of law, and minimising the risk of expropriation, discrimination and unfair treatment.
And it’s not as if investors win an extortionate number of cases. ISDS has existed since the 1960s, but since then, only about 650 cases have been brought forward. The critics make it seem as if most of these cases end up being quite profitable for the investor. As if an investor simply by filing a claim gets the right to million euros or dollars in compensation. Wow, if that was the case, I’m sure we would have seen more than just 650 cases! But in fact, only 31 per cent of the investors win the case against the state. Bummer for the anti-ISDSers.
The simple truth is that states aren’t above the law, and must, like all citizens respect the law, regardless of whether it is national law, international law or the Universal Charter of Human Rights. Without the investment dispute settlement mechanism, the realm of trade policy and investment policy becomes the lawless environment the anti-globalisation movement is already accusing it to be. It would degrade into “might is right”, where powerful leaders and states can act according to their own whims.
Because we can’t keep on arguing that ISDS is “not bad”. How do you win that debate?! We have to start showing how ISDS is good! We have to stop cowering, and expose their real reasons for their opposition. Because the defence of the rule of law deserves more than the last couple of months’ cowardly and half-hearted defence.
So what is the #ISDSchallenge? Well, I’m not only going to tell the anti-ISDSers that they’re wrong, and explain why they’re wrong. That’s too simple. But, for every case that the anti-ISDSers present, that supposedly is a sign of evil corporations undermining our democracy, I’ll give them two cases in return that clearly show the need for ISDS. A quid pro quo squared, so to speak.