Trade & Investment

Critical thinking, real solutions

ISDS in numbers

TNI's ISDS impactos website looks at the impacts of Investor State Dispute Settlements across Latin America (In Spanish)

TNI has supported movements opposing unjust trade rules since the 1990s – with a newer focus on the Investor-State Dispute Settlement Mechanism (ISDS) since 2010. ISDS allows corporations to sue states for implementing regulations that protect the public interest. Through its research, publications, education and training, media outreach and coalition-building efforts, TNI lends support to those pushing back against free trade agreements (FTAs) and investment treaties. TNI has closely collaborated with social movements in Europe, Asia and Latin America to  develop popular campaigns and propose alternatives that prioritise people’s rights over corporate profits.

In 2017, TNI continued to coordinate the Seattle-to-Brussels (S2B) network in Europe, which spearheads pan-European campaigns on trade and investment issues. TNI remained closely involved in maintaining the push back against CETA, even after the agreement was ratified by the European Parliament, resisting the Multilateral Investment Court (MIC), and in  delegitimising attempts to expand the reach of investor protection clauses in free trade treaties.

Globally, TNI contributed significantly to sustaining the de-legitimization of investor-state dispute settlement (ISDS) mechanisms. This resistance and awareness building has resulted in a number of governments around the world reconsidering their positions on ISDS, such as South Africa, Indonesia and others. 2017 saw a specific turnaround in Ecuador, which pulled out of all its Bilateral Investment Treaties (BITs).

GOALS: To establish the principle that the public interest and integrity of national judicial systems should not be undermined by trade and investment rules, particularly through the settlement of investment disputes.

Goals Outcomes in 2017 to which TNI contributed
Governments in the South/EU start to question their investment agreements.
  • Ecuador withdrew from its 16 remaining BITs based on input from a commission headed, in the final phase, by TNI’s Cecilia Olivet.
  • Despite the ratification of CETA, a key success for TNI and S2B’s advocacy efforts, in alliance with FGG, FNV and Consumentenbond, is that investment protection was excluded from the provisional implementation.
The inclusion of investment protection in the EU-led bilateral FTAs is challenged by media.
  • The following media outlets published critiques of the investment protection: The Guardian, Publico, Euractiv, Le Monde, Politico, Agence Europe, euobserver, La Diaria, and Dutch media, including Volkskrant, NRC, NU.nl, NOS; El Universal and Reforma on EU-Mexico agreement, Interaksyon; PhilStar and Manila Bulletin in The Philippines
Policy-makers in EU and South speak critically about the dangers of investment arbitration and see the need for reform.
  • Policy makers around the world, including Greens and members of EPP, S&D (European Parliament), spoke critically of ISDS.
  • TNI’s research on the impacts of investment protection in Latin America and the Caribbean (LAC) and all the arbitration cases against LAC countries  helped activists, journalists and policy makers to grasp the extent of the costs that the investment regime has had for Latin America.
Opinion-makers, including lawyers, add their voices to the growing critique of IIAs/ISDS.
  • The European Association of Judges expressed reservations about the competence and judicial standards of the Commission’s Investment Court System’s proposal.
CSOs in Asia (ASEAN + India) and Latin America increase awareness of the dangers of IIAs and ISDS and capacity to engage their own governments and media on the investment protection agenda and are able to propose alternatives.
  • Progress on the EU-Myanmar investment protection agreement has stalled. TNI had co-published a report on the potential negative effects of an investment protection agreement between the EU and Myanmar. This was done together with European NGOs and Myanmar CSOs. The briefing, which deepened the level of critique,  was distributed widely in the European Parliament, and to selected MPs in Myanmar.
  •  TNI’s publication on the dangers of the investment protection framework in the Kyrgyz Republic was featured in several Kyrgyz media outlets and the analysis, published in English and Russian was processed and disseminated in three workshops with 20 participants in each.
  • TNI, SOMO and IGJ’s joint publication about ISDS raised awareness of the issue  among CSOs in Indonesia and Europe. A statement calling for a moratorium of the negotiations, launched during the second round, was supported by 31 Indonesian networks and organisations and 22 international ones, throwing a spanner in the works for the agreement.
  • The continental gathering of social movements, “La Jornada Continental por la Democracia y contra el Neoliberalismo” in Montevideo, attended by 2000 people, featured the issue in the gathering’s final declaration. TNI’s input at the gathering helped to deepen the analysis and to foster well-informed debate on trade, investment and corporate power.
  • Launch of Argentinian assembly and relaunch of network of social movements in Latin America against ‘free trade’ (Argentina, Chile, Bolivia, Brazil, Paraguay and Uruguay).
Dutch government indicates willingness to review their model BITs and renegotiate their old ones.
  • Due to sustained pressure, the Dutch government established a consultation process, the Breed Handelsberaad (BHB) in response to critiques that trade policy-making is not transparent, accountable nor inclusive. Dutch NGOs were eventually invited to participate, under the condition that information remains confidential. While this was a step in the right direction, TNI declined to join the process due to the confidentiality requirement.
MEPs and policy-makers in EU and the South accept that ICS does not address the key flaws of ISDS system.
  • TNI supported resistance to the Multilateral Investment Court (MIC), and   delegitimised attempts to expand the reach of investor protection clauses in free trade treaties. A broad number of MEPs as well as some MPs from southern governments criticized ISDS.

Highlights

  • Based on key input from an independent commission headed by TNI’s Cecilia Olivet, Ecuador pulled out of all its Bilateral Investment Treaties.
  • TNI participated in resistance against the Multilateral Investment Court (MIC), which was debunked as a sanitized but still odious alternative to ISDS.
  • TNI co-published a report on the potential negative effects of an investment protection agreement between the EU and Myanmar, which strengthened advocacy efforts against the treaty.
  • TNI contributed to increased exposure of the negative effects of ISDS in Latin America and Asia.

“The cooperation with TNI is a big asset for our campaign and lobby work... Joint work with TNI has allowed REDES AT to strengthen its analytical expertise and capacity to position these issues in the public political agenda. We have been able to develop strong arguments and present them to Members of Parliament and the International Relations Commission of the governing party, to substantiate our opposition to the approval of new free trade agreements and the need to reverse current bilateral investment agreements. We have also been able to foster the public debate which we consider essential to democratize decision making on trade and investment and open the door for social organizations and movements’ participation, debate and positioning.”

– Karin Nansen, founding member of Friends of the Earth Uruguay / REDES (since 1988). Current chair of Friends of the Earth International.

Project in numbers

  • 1330 people participated in 21 TNI co-organized events
  • 15 meetings with key policy makers.
  • 12 briefings/reports/policy statements published

Ecuador gets rid of its bilateral investment treaties

In 2015, Ecuador established an independent commission to audit its Bilateral Investment Treaties (BITs). The Commission, which was led in the final stretch by Cecilia Olivet from TNI, produced a 700 page report that showed these treaties had brought enormous costs to the country, but had failed to bring any  benefits in terms of attracting foreign investment. The Commission recommended the termination of all of Ecuador’s BITs. Subsequently, on May 8 2017, President Correa announced that Ecuador would terminate its 16 remaining BITs. The input of the commission was key to Ecuador’s decision.

CETA ratified amid huge public debate

Although CETA was  ratified by the European Parliarment in February 2017 (408 in favour, 254 against and 33 abstentions), no other trade agreement has met such strong opposition in the European Parliament, and in the streets. TNI, as part of the Dutch trade campaign and S2B, facilitated and enabled an informed debate about the CETA treaty by bringing evidence to policy makers about the treaty’s negative impacts. The network applied significant pressure on Dutch MEPs and the European Council not to ratify the treaty. Social-democrats, usually supportive of trade agreements, were divided over CETA. This  was the result of two years of sustained campaigning and advocacy at national and European level.

Despite the ratification, a key success for TNI and S2B's advocacy efforts, in alliance with FGG, FNV and Consumentenbond, is that investment protection was excluded from the provisional implementation of CETA. Due to the consistent pressure, investors will not get rights under CETA until all 28 EU Member States ratify the agreement. Furthermore, TNI demanded that the European Court of Justice (ECJ) assess the compatibility of the investment protection chapter of CETA with EU laws. The ECJ is currently reviewing this issue.

Exposing the EU’s move to globalise ISDS or to create an International Court for Multinationals

As a result of the backlash against the investment arbitration mechanism  and the difficulties for the ratification of CETA, in January 2017, the EU and Canada initiated a process of global discussions to establish a Multilateral Investment Court (MIC). TNI, as part of S2B, quickly  responded to the MIC proposal and  framed it as a global ISDS, and a PR exercise to re-legitimise ISDS. This influenced some MEPs and Trade Unions in their opinion about MIC. A Policy Debate in Brussels with ambassadors from South Africa, Ecuador, and the chair of the German judges federation helped to publicly expose how the MIC proposal maintained the key flaws of ISDS.

Transparency in the Netherlands.

On the Dutch front, TNI, together with its Dutch partner NGOs, is developing a campaign to push for a public consultation on Dutch BITs, to start in mid 2018.

In addition, and due to sustained pressure, the Dutch government established a consultation process, the Breed Handelsberaad (BHB) in response to critiques that trade policy-making is nontransparent, unaccountable and non-inclusive. Dutch NGOs were eventually invited to participate, under the condition that information remains confidential. While this was a step in the right direction, TNI declined to join the process due to the confidentiality requirement.

EU-Myanmar investment treaty under pressure

In June, TNI co-organised advocacy towards the European Parliament on the EU-Myanmar Investment Protection Agreement (IPA). TNI co-published a report on the potential negative effects of an investment protection agreement between the EU and Myanmar. This was done together with European NGOs and Myanmar CSOs (Paung Ku, KESAN, Myanmar Alliance for Transparency and Accountability (MATA), Land in Our Hands (LIOH) network, The EU-ASEAN FTA campaign network, CIDSE, MISEREOR, Info Birmanie, Secours Catholique – Caritas France, CCFD-Terre Solidaire, Seattle to Brussels Network, Association Internationale de Techniciens, Experts et Chercheurs (AITEC), and 11.11.11). The briefing was distributed widely in the European Parliament, and to selected MPs in Myanmar.

The paper argued that the benefits of the IPA were highly overstated, and the risks seriously underestimated. It was shown that the IPA could have major negative impacts on democratic development, human rights and sustainable peace in Myanmar, depriving it of the necessary policy space to harness investment to serve sustainable development and peace. It also had the potential to bankrupt the country through potential lawsuits led by foreign companies unwilling to see stronger regulations that may impact their profits. The publication of the report strengthened advocacy efforts against the treaty.

With input and support from TNI, CSOs in Myanmar sharpened their ability to reply in-depth to questions about the IPA from the media. They actively approached MPs from the ruling NLD party. They increased their participation in regional activities on FTAs at the Southeast-Asian level. In cooperation with Paung Ku, LIOH, Kesan and others, they published multiple letters and op-eds in Myanmar that framed the EU-Myanmar IPA in a similar framework as the agreements that Ecuador canceled.

Struggles against ISDS still high on the agenda of Asian and Latin American social movements

In 2017, social movements worldwide, particularly in Asia and Latin America, increased their attention on ISDS and strengthened their resistance campaigns.

TNI participated in the generation and sharing of knowledge and capacity amongst alliance partners with regards to the proposed EU-Indonesia FTA. A joint publication by TNI, SOMO and IGJ widely increased awareness about ISDS among CSOs in Indonesia and Europe. A statement calling for a moratorium of the negotiations, launched during the second round, was supported by 31 Indonesian networks and organisations and 22 international ones, throwing spanners in the works for the agreement.

Upon request by Kyrgyz participants in the Asia-Europe People’s Forum (AEPF) held in 2016 in Mongolia, a publication on the dangers of the investment protection framework in the Kyrgyz Republic was published by TNI in English and Russian. It featured in several Kyrgyz media outlets  and the analysis was processed and disseminated in three workshops with 20 participants in each.

Latin America

During 2017, several  of TNI's activities were geared towards increasing awareness about the dangers of ISDS in the Latin American region, and linking the issue of investment protection to concrete struggles. TNI co-hosted training seminars in Argentina (45 participants – mainly trade unionists and activists working on trade, mining and public services- from nine countries in Latin America); Colombia (for CSOs, on the recent cases against Colombia), and in Brussels (focusing on the debate about Europe-Latin America trade relations in a new era.)

TNI put a spotlight on the impacts of investment protection in Latin America and the Caribbean (LAC). It published research on all the arbitration cases against Latin America and Caribbean countries. It was presented through a dedicated website in an easily accessible way (short articles, infographics, interactive maps and graphs). This information aimed to help activists, journalists and policy makers grasp the extent of the costs that the investment regime has had for Latin America. This effort filled a current gap in the literature and helped to strengthen the capacity of Latin American activists to engage in discussions on the impacts of ISDS in the region.

In November, in Montevideo, TNI joined 2,000 other participants at the continental gathering of Social movements at “La Jornada Continental por la Democracia y contra el Neoliberalismo” in Montevideo, where it  made significant contributions to the debates on trade, investment and corporate power. TNI’s input helped to deepen the analysis and to foster well-informed debate. The issue of investment protection featured in the gathering’s final declaration.

In December, TNI hosted several trade and investment workshops alongside the WTO Ministerial Meeting in Buenos Aires, Argentina. This was the first WTO Ministerial Conference in South America, at a time when the regional context  is highly favorable to free trade. Unfortunately, the conference was held amid high distrust of civil society, an unusual development for the ministerial conferences. Argentina’s creation of a list with more than 60 names of activists whose accreditation, as well as their entry to the country, were denied was an unprecedented development. Despite being on the list of denied organizations, TNI was able to finally get accreditation with the help of Dutch authorities. These activities opened up new constituencies interested in the issue among CSOs and Trade Unions in the region. This has further expanded and deepened alliances that are working on the issue.

Throughout the year, TNI  supported resistance efforts regarding the renegotiation of the EU-Mexico Free Trade Agreement. TNI facilitated a space of dialogue and exchange of information between European and Mexican CSOs on EU-Mexico trade and investment relations. This included the hosting of monthly conference calls and a dedicated e-list on this issue. 


Notable Publications


People

Cecilia Olivet
Trade and Investment Project Coordinator

Pietje Vervest
Economic Justice Programme Coordinator

Luciana Ghiotto
Research Associate, Argentina

Bettina Müller
Research Associate, Argentina

Benny Kuruvilla
Research Associate, India

Lavinia Steinfort
Programme Assistant

Roeline Knottnerus
Research Associate

Niels Jongerius
Dutch Advocacy Officer

Volunteers/Interns

Amaranta Villareal Nansen


Partners

International

  • Friends of the Earth International

Europe

  • Seattle to Brussels network
  • Aitec, France
  • Institute of Global Responsibility, Poland
  • ATTAC France
  • Attac Austria
  • Centre National de Coopération au Développement (CNCD), Belgium
  • 11.11, Belgium
  • Friends of the Earth Europe, Belgium
  • Corporate Europe Observatory, Belgium
  • Fairwatch, Italy
  • France America Latina, France
  • Milieudefensie, Netherlands
  • Oficina International de los Derechos Humanos Acción Colombia (OIDHACO), Belgium
  • Powershift, Germany
  • Re-Common, Italy
  • Stop TTIP – Italy campaign
  • Vedegylet Egyesulet, Hungary
  • Both ENDS, Netherlands
  • SOMO, Netherlands
  • FNV, Netherlands
  • WEMOS, Netherlands
  • Foodwatch, Netherlands
  • Dutch Dairymen Board, Netherlands
  • Nederlandse Akkerbouw Bond
  • ASEED, Netherlands
  • Vrijschrift, Netherlands
  • Platform Authentieke Journalistiek, Netherlands
  • Platform ABC, Netherlands
  • Ecologistas en Acción, Spain
  • Traidcraft, UK
  • War on Want, UK
  • Global Justice Now, UK
  • Rosa Luxembourg Foundation Brussels office, Belgium
  • Afrika Kontakt, Denmark
  • Forum Umwelt und Entwicklung, Germany

Americas

  • Jubileo Sur Americas
  • Confederation Sindical de las Americas
  • The Democracy Center, Bolivia
  • CENSAT Agua Viva /Friends of the Earth, Colombia
  • Colectivo de Abogados “José Alvear Restrepo” (CAJAR), Colombia
  • Centro de Investigación y Educación Popular (CINEP), Colombia
  • Escuela Nacional Sindical, Colombia
  • Ecuador Decide, Ecuador
  • Institute for Policy Studies (IPS), United States
  • Redes/Friends of the Earth, Uruguay
  • ATTAC Argentina
  • CLACSO
  • Campaign Mexico better off without TPP
  • Campaign Chile better off without TPP
  • Campaign Argentina better off without FTAs
  • Coalition “Jornada Continental por Democracia y Contra Neoliberalismo”
  • Council of Canadians, Canada

Asia

  • EU-ASEAN FTA network, South East Asia
  • Focus on the Global South, Philippines, Thailand and India
  • Alyansa Tigil Mina, Philippines
  • Indonesia for Global Justice, Indonesia
  • Paung Ku, Myanmar
  • Kesan, Myanmar
  • Myanmar Alliance for Transparency and Accountability
  • Monitoring Sustainability of Globalisation, Malaysia
  • IDEALS, Philippines
  • SENTRO, Philippines
  • Forum Against FTAs, India