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The secretive tribunals which enforce corporate rule

15/01/2021 by GJM

“Demanding Justice At Chevron’s Shareholder Meeting 2011” by Rainforest Action Network is licensed under CC BY-NC 2.0

As coronavirus takes lives, devastates families and destroys businesses, some are planning to reap profits from the disaster. No, I’m not referring to the usual suspects, supermarkets, internet giants and delivery companies, but to secretive cabals of corporate lawyers, who form the arbitrations system for international trade disputes. These corporate courts are heavily biased in favour of transnational capitalist corporations and against the rights of ordinary people and the sustainability of the natural environment.

And they have immense power. Currently, Pakistan faces the confiscation of its assets abroad, including hotels and aircraft owned by the state airline, because of a totally unrelated dispute over a copper mine. Meanwhile, another mining company is planning to sue Tanzania. What is going on?

Poisoning the Rainforest

“File:Texaco in Ecuador.jpg” by Julien Gomba is licensed under CC BY 2.0

For over 20 years, from 1972 to 1993, the US oil company Texaco spilled 30bn gallons of crude oil and other waste into the Amazon rainforest in Ecuador. Ordered by the Ecuadorian courts to clear up the mess, parent company Chevron simply took their case to an ISDS tribunal, which agreed with them that they had no liability. The environment suffered a double whammy, while rainforest was poisoned, the extracted oil was burned to produce more greenhouse gasses. Meanwhile, people in the affected area are forced to live with Chevrons filthy legacy of oil polluted water.

Act now to demand real justice in international trade

What are corporate courts?

‘Corporate courts’ are a tribunals run by corporate lawyers for the benefit of giant trans-national corporations (TNCs) and rich investors. They allow foreign companies to sue national governments and overrule domestic laws and regulations that reduce their profitability. They are used by the powerful TNCs to prevent regulations protecting consumers, workers, livestock or the environment.

“Fast food strike and protest for a $15/hour minimum wage at a McDonalds restaurant” by Fibonacci Blue is licensed under CC BY 2.0

Nick Dearden of Global Justice Now has pointed out:

Putting cigarettes in plain packaging, banning dangerous chemicals, raising the minimum wage, stopping toxic power plants being built – anything that might affect big business’s bottom line can lead to a claim being lodged.

The Brexit deal that the UK has recently signed with the EU does not include a corporate court clause, but many of the deals which are being currently signed do contain them, and corporate lobbyists are pressing the Government to make corporate courts part of any trade deal which the Government now signs.

“Oil pollution” by Verokark is licensed under CC BY-NC-SA 2.0

Fracking Canada

Time and time again, corporate courts find against local communities and environmental interests in favour of corporate profits. In 2011, in response to public pressure, the Provincial Government of Quebec severely restricted fracking and other hydrocarbon extraction activities in its territory. A company called Lone Pine, which had been given exploration permits, objected. Lone Pine is actually based in Canada, but because it is formally registered in the US, it was able to use the ISDS system to demand compensation.

Act now to demand real justice in international trade

Key features of corporate courts (ISDS, ICS)

“3D Judges Gavel” by ccPixs.com is licensed under CC BY 2.0
  • They usually meet in secret;
  • Only foreign companies can lodge claims, typically against national governments;
  • Ordinary citizens, domestic companies, trade unions, watchdogs and even national governments are barred from taking action through these courts;
  • There are not usually presided over by qualified judges, the cases are heard by corporate lawyers;
  • Court officials are paid by the hour, giving them a vested interest in awarding claims in order to attract more work;
  • They operate independently of national judicial systems;
  • There is usually no right of appeal.

Act now to demand real justice in international trade

France’s environmental law

But polluting companies don’t only use ISDS to demand compensation. They can also use it to directly influence government policy.

In 2017 environmental activist Nicolas Hulot became France’s Environment Minister. In July, he brought forward the draft of an ambitious law which would have ended fossil fuel extraction on all French territory by 2040. Some projects would have ended as soon as 2021 and only a few would remain by 2030.

“NICOLAS HULOT” by marsupilami92 is licensed under CC BY 2.0

In August 2017, the French Council of State received notice from lawyers representing the Canadian oil and gas company Vermilion, threatening to take action through the ISDS system if their investments were threatened. Vermilion is responsible for 75% of French oil production.

By September, Hulot’s law had been effectively neutered. The draft now allowed for the renewal of oil exploitation permits until 2040. Existing projects would continue unhindered for the next 20 years. The final version of the law even allowed exploitation permits to be renewed after the 2040 deadline.

A year later, Hulot resigned his post, citing the excessive influence of corporate lobbyists on environmental policy making.

Origin

The ISDS system of corporate courts first came to prominence as part of the North American Free Trade Agreement (NAFTA) in 1994. It has a deeply unpleasant history. In one of its first cases, the US company Ethyl sued the Canadian Government to allow the use of a known human neurotoxin in its product. Despite the ingredient being banned in its home country, the USA, Ethyl was able to bully the Canadians into allowing them to use the neurotoxin.

The Australian tobacco scandal

Marlboro Mascot Parody by John Oliver (Jeff the diseased lung)

In 2011, the tobacco giant Altria Group, owners of Philip Morris International, took the Australian Government to court in an attempt to prevent the introduction of ‘plain packaging’ laws. Although the Australian High Court kicked out their claim, Alteria pursued it through the corporate court set up by a trade treaty that Australia had made with Hong Kong. Again they lost, but this time on a technicality. Alteria had attempted to use a shell company to pursue its claim. However, the company was not registered at the time that the laws were introduced.

The legal costs, paid by the Australian taxpayer, amounted to Aus$50 million. This was enough of a victory for the tobacco companies. Using the threat of such court cases, they have bullied poorer countries such as Uruguay and Togo into backing down on anti-tobacco legislation.

Watch comedian John Oliver explain how Big Tobacco uses corporate courts to bully small countries

TTIP, CETA and ICS

When all else fails, change the name…

“Rolling Rebellion Sparks in Seattle to Defend Internet & Stop the TPP” by Backbone Campaign is licensed under CC BY 2.0

The courts go under several names, most notably ISDS (Investor-State Dispute Settlement), or ICS (Investment Court System).

The Stop-TTIP and Stop-CETA movements won some concessions on corporate courts. The Investment Court System (ICS) which is incorporated into the CETA treaty does, at least, require that cases are heard by real judges, rather than corporate lawyers. However, the judges will still be paid by the hour, creating a perverse incentive to find in favour of the corporate litigant.

According to the Deutscher Richterbund, Germany’s largest association of judges and public prosecutors:

“Neither the proposed procedure for the appointment of judges of the ICS nor their position meet the international requirements for the independence of courts.”

“Judge Johnny, star of the Corporate People’s Court” by DonkeyHotey is licensed under CC BY 2.0

ISDS, in its modified form of Investor Court System (ICS):

  • Rewards judges for finding in favour of corporations
  • Promotes legal creativity through vague provisions such as protection for the ‘legitimate expectations’ of corporate investors
  • Has no limits on the amount of compensation that can be paid to investors
  • Causes regulatory chill, by making it risky for governments to to legislate for environmental, public health or workplace protection

The corporate lobby think they can hoodwink ordinary people by changing the name of the system. We think they’re wrong.

Drilling in the Adriatic

When UK based Rockhopper Exploration began sinking test drills in the Adriatic, citizens of Italy’s idyllic Abruzzo region were horrified. For a region with a heavy investment in tourism, the prospect of a new oil industry just offshore was an immediate threat to jobs and businesses, to say nothing of the long term environmental destruction.

“Roseto degli Abruzzi Abruzzo 2014” by Fraintesa.it is licensed under CC BY-NC-SA 2.0

In increasingly large numbers, tens of thousands protested on the streets demanding government action and in 2017 the Italian Government responded, refusing Rockhopper a license to drill and placing a moratorium on all future operations off the Italian coast.

Rockhopper is claiming up to US$350m compensation through the ISDS procedure. This is 7x what they have invested in exploration.

Act now to demand real justice in international trade

Uniper v the Netherlands

“Coal Fired Power Station” by UniversityBlogSpot is licensed under CC BY 2.0

German based company Uniper is threatening the Dutch government following its decision to ban coal-based power generation by 2030. This would force Uniper to close its new coal-fired plant, which it hopes to keep running until 2056. It seems that the company is claiming that a transition to biomass is not viable.

The action would use the controversial Energy Charter Treaty which has triggered more ISDS claims than any other trade agreement.

 

Where we stand today

The UK has been identified as one of the major centres of activity for carpetbagging corporate lawyers seeking to exploit international trade deals to promote the agenda of the TNCs.

  • Corporate courts are increasingly being used to resist the switch away from climate changing hydrocarbons, as big oil corporations attempt to protect their profits.
  • Paper companies, which allow tTNCs to pretend they are operating in a country even when they are not, are still being used to gain access to the corporate court system. South Korea alone has signed 99 separate trade agreements which allow this practice.
  • The system is still being used to bully poorer countries, some of whom struggle to fund even the costs of litigation.

Act now to demand real justice in international trade

Filed Under: climate crisis Tagged With: #jeffwecan, #StopISDS, Abruzzo, Altria, Altria Group, Australia, Brexit, British Parliament, Canada, CETA, Chlorinated Chicken, Climate, Climate Change, Climate Emergency, Corporate court, Corporate Courts, Corporate Power, Corporate sovereignty, Deansgage, Democracy, Dirty oil, ECT, Energy Charter Treaty, Environmental protection, Ethyl, Extinction Rebellion, Fossil fuels, France, Global Heating, Global Warming, globalisation, Human rights, hydrocarbons, ICS, International Trade, Investor Court System, Investor-State Dispute Settlement, ISDS, Italy, Jeff the diseased lung, John Oliver, Justice, Manchester, Marlborough, Multilateral Investment Court, NAFTA, NAFTA2, Nederlands, Netherlands, Nicholas Hulot, North American Free Trade Agreement, Parliament, Parliamentary oversight, Parliamentary scrutiny, Parliamentary sovereignty, Philip Morris, post-Brexit, rainforest, Rights for People, Rockhopper, Rockhopper Exploration, Rules for Corporations, StopICS, tobacco, Togo, trade agreements, trade and environment, trade deal, Trade Democracy, Trade justice, Transparency, TTIP, UK-US, UK-US trade, UK-US trade deal, Uniper, Uruguay, US-UK, US-UK trade, US-UK trade deal, USA, USMCA, XR

Trade Campaigning with XR

04/10/2020 by GJM

Whatever the severity and urgency of the Pandemic it’s important to keep one’s eye on the fundamental threat: climatic disaster

As often emotive headline facts and anger lead to sub-optimal effect when the big picture is not seen; battles may be be won, but the fundamental causes and issues will bring new problems to be addressed.

Sun and Samba

So, wary of the implications which are likely to result from reckless and irresponsible trade deals a couple of us went along to the formal beginning of Extinction Rebellion’s #WeWantToLive “Northern Rebellion” in St. Peter’s Square on 1st. September.

As you would expect on a sunny day, it was well attended with a samba band that had come from the NE as well as folks old and young from the Lakes and Lancs, Bury and Burnage. The road outside the Midland Hotel and Friends Meeting House was blocked, some meditated and the police were gently in attendance while the trams ran unmolested with their squealing drowning out speakers at times.

We mingled offering materials, inviting people to sign petitions and come to our webinar, QR codes for which had been generated and printed. However as time went on I became more aware that “Town” is but a shadow of its former self; plenty of activists, but fewer tourists, shoppers and workers. Many are more cautious of others.

Wary of being trolled (as had already happened in the comments on the MEN website’s disparaging report written before the event) organisers were at pains to encourage social distancing, mask wearing and the peaceful nature of the event.

Speakers

The mysterious Red Brigade made silent appearances (seen here contemplating the fate of climate refugees), as did independent photographers; HS2 was vilified. a priest in Salford represented Christian Climate Action and a wheelchair user emphasised the desire of disabled activists to participate. A formation dance was performed (socially distanced) and a GP spoke of his experiences in Africa . He had set up a Doctors’ XR group which had coordinated posting health warning stickers on over 50 local petrol stations. Marc Hudson from Climate Emergency Manchester spoke well on the need for persistence (and their petition for a scrutiny committee); Mums and Dads with tots and children (celebrating the end of exile from school) chalked the pavement.

We were reminded of the Palestinian issue, Demilitarise Education, and problems facing renters. Later moving testimony was given from the sister of Chris Alder who had been died in police custody 22 years ago. Young Manchester FoE members, School Strikers and other young folk spoke in varied ways: some sweary, some naïve, some inarticulate in their distress.

Eventually we had a chance to point out the links between trade and ecological and climate breakdown. People listened, but action is more difficult and was disappointingly not evident.

Marching

Later the faithful went on a wander-march around the city centre, supposedly to see the sites of “climate sinners”, though the only couple of stations I noted were outside the DWP (2 St Peter’s Sq., underneath Ernst and Young and next door to KPMG, both of whom Christian Aid challenged a few years ago (with PwC and Deloitte) for their failures to make climate-impact reporting norms for banks. Banks were not visited (their day will come) and we ended up squeezing past a police van and legion to admire a pink sprayed building hidden next to the Rising Sun and Credit Union offices in Lincoln Square. We were told this was used by the Daily Mail. We had a bit of a sing song and made our way back to St. Peter’s Square.

We left at that point having tickets for the launch of Nick Dearden’s book. Many others sat around taking refreshments before a vigil, more speakers and workshops.

The knock on effect of the pandemic depleting the audience resulted in what I found a bit disappointing after last year. One always has a first flush but now they were victims of their success – Deansgate is still largely pedestrianised and their threat to business is well enough perceived for mass media to almost blank them.

Supportive councilors were conspicuous by their absence and there were fewer non-campaigners engaged. An incredible amount of expense, organisation and work had gone into preparing publications, hardware, and roles; they could have coped with many more attending.

Then came the rain…

I went along on Tuesday where a much smaller gathering was blighted by persistent rain. There were even fewer passers-by to be engaged but some fun was had by a mass dance. Later we were led off by a circuitous route, with police motorcyclists buzzing too and fro to block off streets . This ended in Dale Street outside the offices of Boohoo where there was some shouting, a smoke flare was let off and (when the samba band arrived) there was more sound. Unfortunately my camera conked out due to the rain and photocopied posters decomposed.

Take away learning experiences:

  1. Get your speech in early by making contact with the organisers before we did!

  2. Have plenty of materials to give away (we virtually ran out as the climate stickers, illustrated climate justice booklet and A4 window posters were taken eagerly- we can only hope that they will be deployed strategically).

  3. Have an action as easy as possible- even with QR codes, getting people to sign a postcard there and then is easier than an e action on a mobile. A giant postcard to sign works well.

  4. Rebels are energetic, committed and imaginative; they are diverse and taking strikes to ensure their inclusivity – we would do well to be inspired and learn much from them; but many lack campaigning experience and can seem to suffer from tunnel vision – we should offer help.

  5. The Rebels achieved a lot with a lot of people taking things on and turning up.

  6. No matter what is planned, the weather and people’s personal and legislated responses to the pandemic may be determinative.

  7. Cover up in the rain, have a prepared “Plan B” stunt to exploit it, or go home!

Filed Under: Actions Tagged With: #WeWantToLive, book, campaigning, Climate Change, Extinction Rebellion, Global Justice Manchester, International Trade, Manchester, Nick Dearden, Northern Rebellion, St. Peter's Square, Trade, trade deal, Trade Democracy, trade negotiations, Trade Secrets, Trade Transparency, Trading with Trump, Trump, US-UK trade, XR

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