Talk:Investor-state dispute settlement

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NPOV[edit]

IMHO the arguments against ISDS are not properly balanced by arguments in favor of them. Investors may feel a justified need to act against rogue states not respecting their rights.

The argument that ISDS decisions may override democratic decisions is nothing special. Constitutional courts correct democratic decisions all the time. Remember that Hitler came to power by a democratic decision - but unfortunately no opportunity existed at the time to challenge his decisions in court! Private parties may invoke courts to challenge government decisions, that is normal nowadays.

The issue here is that these conflicts will be settled in a separate court from the courts linked to the state. MaximusVanellus (talk) 16:34, 10 August 2015 (UTC)

It occurs to me that the prime problem is the opacity of the procedure and the lack of a procedure to challenge the independence of the panels. That is badly needed since the legal issues in these conflict are complicated.

If a firm must close overnight due to a law that was adopted unexpectedly by the government, some compensation seems justified. But firms producing controversial products (from nuclear power plants to cigarettes) could be prepared for changes in legislation. Firms recruiting women in Eastern Europe to work in the see industry even more so. Rbakels (talk) 04:28, 7 January 2014 (UTC)

Hitler as an argument pro ISDS. Seriously?! 194.232.72.121 (talk) 08:31, 18 July 2014 (UTC)

Independent judiciairy[edit]

Article mentions lawyers who are not accountable to the public. Lawyers are never accountable to the public. Whether they should be is another issue. MaximusVanellus (talk) 16:52, 10 August 2015 (UTC)

There is much more to the issue of independent judges than this article suggests (arbitors also working as lawyers). MaximusVanellus (talk) 16:56, 10 August 2015 (UTC)

Examples section is rather poor[edit]

The examples section consists of almost only cases that were denied; I find it much more relevant to include cases where the government has lost, so that we can know how ISDS works in reality. I included the case of Ethyl Corporation versus Canada, and I'm looking for good sources for the case of SD Myers versus Canada. If nobody objects, I will also remove the cases where the litigation went nowhere. Mateus Araújo (talk) 14:21, 3 January 2016 (UTC)

I'd hardly consider cases dismissed cases going nowhere. Instead, I'd consider them examples of cases which resulted in a loss for the plaintiff. Dschslava (talk) 23:09, 18 January 2016 (UTC)
Sure, but this means nothing happened, nothing changed. The point of the examples section is to illustrate how is this power to sue governments used. Surely the cases where the arbitration court made the government do something illustrate better what this power entails. Remember that the situation is not symmetric, this mechanism is not meant for governments to sue corporations. Mateus Araújo (talk) 10:08, 20 January 2016 (UTC)
Yes, but it should also illustrate how the process is not completely innocent of bad faith—the suits found to be inapplicable to the law should also be included, because they illustrate how this whole process can be used to pummel a government until it gives in. That being said, I think that we can remove the case 'Centurion Health Corporation v. Canada' because it is very obviously inapplicable to the process. Dschslava (talk) 15:28, 20 January 2016 (UTC)
That's a good point. It is likely that a government would change its behaviour merely to avoid being sued, even if it would likely win the lawsuit. I'll look for an example of that. But maybe it is useful to separate the cases where the plaintiffs won and lost, as they still have different meanings. I'll do that and delete 'Centurion Health Corporation v. Canada'. Mateus Araújo (talk) 10:49, 21 January 2016 (UTC)
I see that you've gone ahead and separated them, which I agree with wholeheartedly. I also suppose that cases where the parties settled outside of court would fall under the auspices of what you mentioned in your second sentence above. Dschslava (talk) 23:01, 21 January 2016 (UTC) Removing Centurion Health Corporation v. Canada' is a rush to judgement and does not conform with transparency unless you are privy to additional court filings which have yet to be ruled on in this case it is just speculation. To make a judgement of inapplicable is inaccurate and can be well argued. There is a lot more to this case then meets the eye and will remain relevant for many years to come.

Notable information on ISDS[edit]

BBC Radio 4 did a background story on ISDS: http://www.bbc.co.uk/programmes/b05ntj7p --212.101.32.185 (talk) 20:11, 9 March 2016 (UTC)

Debates and Criticisms - Jargon / legalise[edit]

Apologies in advance for my critique of the writing, but this section is a bit difficult to understand, specifically but not limited to this section:

"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."

First off, there are quotes in there, but who is being quoted and from where? Do we have a citation for this? Further the use of the word 'accession' is confusing to me; do countries pass treaties where they access to public international law in part or in whole? Further the implication is that the states in question never had the right to regulate and thus could not lose something they never had; the bilateral investment treaties and international investment agreements are public international law which is a higher order than local state regulation. Overall it seems to imply that investor's protected rights (for which there is no definition given nor Wikipedia entry for) trump local law via the mechanism of public international law. To me, if more questions are asked than answered in reading a section, there's a dearth of teaching going on.

Again, sorry to all the lawyers out there for whom this makes perfect sense, but a certain amount of simplification would be appreciated so that complicated topics can be easily understood by the lay public. — Preceding unsigned comment added by BlaineGond (talkcontribs) 03:17, 30 September 2016 (UTC) BlaineGond (talk) 14:46, 31 May 2017 (UTC)

Editor repeatedly restores biased content, unsourced content and poor descriptions[edit]

Problems with these edits[1]:

  • Deleting the description of ISDS from the accurate and uncontroversial "an instrument of public international law that grants an investor the right to use dispute settlement proceedings against a country's government" to "a system through which individual companies can sue countries for alleged discriminatory practices" is not an improvement.
  • ISDS did not become "widely known" through Philip Morris v. Uruguay. It's undue weight to throw that into the lede as the second sentence.
  • Adding "widely criticized" before TTIP and CETA is weasel words
  • This unsourced criticism does not belong in the lede: "ISDS has been criticized because the United States has never lost any of its ISDS cases, and that the system is biased to favor American companies and American trade over other Western countries, and Western countries over the rest of the world." Snooganssnoogans (talk) 16:59, 22 October 2016 (UTC)
  1. The first sentence is not readable to the general public, see WP:NOTJOURNAL
  2. The Philip Morris lawsuits are the most well-known cases of ISDS, and if you follow the literature they are oft-cited, and there are sources to back that up (including a number in the article).
  3. Not really, seeing as WP:RS claim they are widely criticized. It may be better to explain them as being "controversial", but this is not a case of WEASEL.
  4. That statement has several sources, which makes the argument void.
I realized it was currently missing sources, (must have forgot to press the insert button), but now there are a couple.
Distrait cognizance (talk) 17:08, 22 October 2016 (UTC)
I'm not disputing that Philip Morris v. Uruguay is a well-known case of ISDS. What I'm disputing is (i) that ISDS became "widely known" through the case; and (ii) that it belongs in the lede. Second, we don't add "widely criticized" to everything that has been criticized. We might as well add "widely supported" given that those agreements have majority support in surveys of the public. Either would be ridiculous. Again, that last point does not belong in the lede. If it can be supported with RS, it belongs in the main body. Snooganssnoogans (talk) 17:15, 22 October 2016 (UTC)
You just added two sources to support that last claim: one comes from a crackpot conspiracy website (GlobalResearch.ca) and the other comes from the "International Journal of Socialist Renewal". Were these the reliable sources that were meant to back up your claim? Snooganssnoogans (talk) 17:17, 22 October 2016 (UTC)
Those types of links would be more welcome at Wikispooks than here I suppose, but I do find it weird that the page didn't have a link to the article that links through the Guardian article you've inadvertently deleted Snoogs: [1]

References

  1. ^ Alfred-Maurice de Zayas (November 16, 2015). "How can Philip Morris sue Uruguay over its tobacco laws?". The Guardian. Retrieved October 22, 2016. 

SashiRolls (talk) 18:24, 22 October 2016 (UTC)

Rubbish sources and unsubstantiated claims do not belong in this article[edit]

This text is not substantiated by any source in the article:

No source says that ISDS became "widely known" through this case. It's ludicrous to say that it was.

The text below cites two rubbish sources ("The International Journal of Socialist Renewal" + "Centre for Research on Globalization") and one source which doesn't support the text[2]:

  • "ISDS has been criticized because the United States has never lost any of its ISDS cases, and that the system is biased to favor American companies and American trade over other Western countries, and Western countries over the rest of the world."

The "Centre for Research on Globalization" is a crackpot conspiracy site, see this[3]. "The International Journal of Socialist Renewal" looks like a crackpot blog with a website template from the 90s. Snooganssnoogans (talk) 15:58, 4 June 2017 (UTC)

I agree with the removals. Neither the "International Journal of Socialist Renewal" nor the Centre for Research on Globalization are reliable sources. The Tim Worstall Forbes "contributor blog" post is also unacceptable - Worstall is not an economist, a trade expert, a diplomat, a historian, a trade lawyer, etc., and those Forbes contributor blogs are essentially user-generated with no editorial controls. This stuff is bad and should go.
The 2011 working paper (Gallagher/Shrestha) Tufts Global Development and Environment Institute working paper is an OK source, but it does not support the content for which it is cited. I've moved it down to the body of the article and changed the text so it actually matches up with what the working paper says. Neutralitytalk 19:42, 4 June 2017 (UTC)
Seems you are right, however several of the statements are correct even if the sources used could have been chosen better. I will look around for some higher quality sources that can be used instead. Carl Fredrik talk 19:56, 4 June 2017 (UTC)
One of the concerns here is also that the lede should reflect the content of the article (per WP:lede guidelines), which the aforementioned text does not. New sources and content shouldn't just be dropped straight into the lede. Snooganssnoogans (talk) 19:59, 4 June 2017 (UTC)

Two suggested better sources to use[edit]

These two studies seem interesting and noteworthy: they come to different conclusions about fairness/unfairness between developed/developing nations:

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects – namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances – suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications.

Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour: (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the observed trends to rationales for systemic bias. The key finding is that the observed trends exist and that they are unlikely to be explained by chance. This gives tentative empirical evidence of cause for concern about the use of arbitration in this context.

(Van Harten also responds to Franck directly at p. 254).

--Neutralitytalk 20:03, 4 June 2017 (UTC)