The terrors of the secretive international court system

The investor state dispute settlement system courts, ISDS, such a terror to the spread of democracy and all that is good and holy around the world:

More than $100bn of public money has been awarded to private investors in investor-state dispute settlement (ISDS) courts, according to the most comprehensive analysis yet.

The controversial arbitration system which allows corporations to sue governments for compensation over decisions they argue affect their profits is largely carried out behind closed doors, with some judgments kept secret. But, according to a global ISDS tracker which launches today, $114bn has so far been paid out of the public purse to investors – about as much as rich nations provided in climate aid in 2022.

Fossil fuel companies have been by far the biggest beneficiaries of the corporate panels, raking in $80.21bn since 1998, according to the site. If current trends continue, at least another $48bn will be disbursed to settle cases currently under litigation, the research finds.

So, we thought we’d have a look at this claim. And please do note what we’re doing - we’re using their evidence, following their facts. We’re not introducing anything else, not handwaving about how capitalists are always right or anything. These are their examples.

From their website the top 5 cases they’re complaining about.

Veteran and Hulley, two cases stemming from the Yukos case. Mikhail Khordokovsky was an oil billionaire with political ambitions. Vladimir Putin actually had political power. Yukos was driven bankrupt. Ah well, such things happen.

Conoco/Venezuela, the Bolivarian state nationalised, without compensation, oil fields.

Repsol/Argentina, the Peronist state nationalsed the oil company without compensation.

Eureko/Poland. Not one we know much about but apparently about the privatisation of an insurance company. Did government keep to the contract it had agreed?

All of these are about whether government kept to a contract that government signed. Might be a contract through a treaty and all that but they really are all about well, did government keep to its word? And if you want to have a court case claiming that a government didn’t then not being in a court controlled by that government seems to be a good idea.

Which is what ISDS is. Just like when we accuse our own government of breaching our human rights, it’s off to the European Court of Human Rights we go - a court not controlled by the government we’re accusing.

Here the accusation is - in colloquial language, in the sense of “But, but, I just brushed against the table and it fell into my pocket, honest, Constable!” and on up - governments nicked this property. So, which court, why and how, does anyone use to test this proposition that the nicking was illegal?

And why would anyone complain about people being able to do so? Our assumption is that some people don’t like the idea that anything should stand in the way of governments being able to nick stuff. A very odd idea to hold we think but there we are, part of that glorious human variability.