The podcast discusses the misuse of international arbitration by corporations and its impact on environmental laws and human rights. It explores examples of corporations challenging environmental regulations and the lack of transparency in the arbitral system. The relationship between international arbitration panels and domestic court systems, as well as the concept of exhaustion of domestic remedies in investment arbitration, is also explored.
International arbitration allows corporations to sue countries over changes in laws that affect their profits, posing a challenge to climate action.
The international investment arbitration system lacks accountability and transparency, and is often used by corporations to discipline governments that regulate in the public interest.
Deep dives
The Problem with International Arbitration
International arbitration is a major problem for climate action as it grants corporations power to sue countries over changes in laws that affect their profits. In these arbitration cases, three panelists, one appointed by the corporation, decide whether the country should compensate the corporation for lost profits. Environmental laws have been challenged in multiple cases, including a complaint against the US government for canceling the Keystone XL pipeline. The closed and non-transparent nature of these arbitrations raises concerns about accountability and fairness.
How International Investment Arbitration Works
International investment arbitration allows corporations to sue states for damages before panels of arbitrators. Treaties on investment protection grant corporations the right to claim compensation if a government measure results in economic loss. While this system is argued to foster economic development and provide legal security for investors, it is often used by corporations to discipline governments that regulate in the public interest. The huge costs and pressure on governments to compensate corporations can inhibit governments from enacting environmental or public health measures.
Implications and Limitations of International Arbitration
The international investment arbitration system lacks accountability and transparency, resembling a private adjudication system that lacks the safeguards of constitutional democracies. The system allows corporations to challenge government measures, even those protecting the environment or human rights, and imposes financial burdens on states. The Chevron Ecuador case exemplifies how arbitral awards can go beyond compensation and impact a country's sovereignty, as well as hinder the enforcement of domestic laws. The arbitration regime has been criticized as a tool of corporate globalization rather than a means of promoting public interest.
The Chevron Ecuador Case and its Implications
The Chevron Ecuador case reflects the imbalances and deficiencies in the international arbitration system. Chevron argued that a release contract released it from liability for environmental claims under the right to a healthy environment in Ecuador's constitution. The arbitral tribunal's interpretation ignored international human rights and constitutional law principles, allowing Chevron to evade liability for ongoing pollution. The lack of environmental and human rights perspectives in arbitration decisions demonstrates the system's focus on corporate interests over public welfare. The case also highlights how arbitration can undermine a country's sovereignty and hinder efforts to hold big oil companies accountable for environmental harm.
A clause in most free trade agreements and investment treaties obligates countries to engage in a process known as international arbitration if there's a dispute with a foreign company. It was meant to assure companies that their investments in especially less developed countries were safe, but in recent years it's become a way to punish governments for passing environmental regulations.