Governments win ISDS Cases often enough - therefore ISDS cases are bad
As we all know there’s a significant movement insisting that investor state dispute settlement systems - ISDS - in international treaties are a bad idea. For what they are is an insistence that there should be an independent court of law able and willing to rule upon the manner in which states live up to - or don’t - their contractual promises. And for those in favour of untrammeled state power who wants that?
As we’ve pointed out before such ISDS provisions do indeed mean that companies and individuals can sue governments. But then so does the European Court of Justice and even the European Court of Human Rights. None of those complaining about ISDS provisions going on to complain about those two.
What does amuse is that even when governments win such ISDS cases this is still taken to be proof that the system shouldn’t exist:
A US energy company’s controversial and unprecedented attempt to sue the Australian government has collapsed, leaving taxpayers with a $44,000 bill.
In 2017 Florida-based APR Energy became the first company to attempt to sue the Australian government under the Australia-US free trade agreement, demanding $344m in compensation for Australia’s treatment of its gas turbines.
The action was made possible by deeply controversial provisions contained in many trade deals – known as investor-state dispute settlement, or ISDS – that allow foreign corporations to sue a government for actions or policies that hurt them commercially.
No, no one gains the right to sue for commercial harm. People only, ever, gain the right to sue for government breaching contracts or terms they have already agreed to. And holding government to account is rather a useful function in a society, no?
Despite the case’s relatively short and uneventful journey, taxpayers have still been charged tens of thousands of dollars to defend it.
Documents obtained by the Centre Alliance senator Rex Patrick show the total legal bill to Australia was $44,000.
The bill is small but Patrick says it is further evidence that ISDS provisions leave Australia vulnerable.
“These are the dangers,” he said. “The matters have been discontinued but it has cost the taxpayer. Last time it was $39m, this time it was $44,000. Who knows what it will be next time.”
$44,000 to uphold the rule of law? Seems rather cheap at the price. What next, complaints about the cost of trying someone who turns out to be innocent? A demand that trials not be held because innocence might be proven?