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Investment Protection at a Crossroads

by Pia Eberhardt Monday, Jun. 30, 2014 at 3:38 AM

TTIP gives foreign investors the right to sue sovereign governments before ad hoc arbitration courts when lost profits occur as a result of political decisions. These decisions cannot be appealed and undermine social, environmental and labor regulations.


TTIP and the Future of Global Investment

By Pia Eberhardt

[This Friedrich Ebert foundation study from May 2014 is translated from the German on the Internet, ]

• For years inter-state investment agreements have been concluded that granted investors rights to sue before a private international court of arbitration in cases of conflict. The number of investor lawsuits has increased enormously. The state “violations” punished in investor-state proceedings are increasingly directed against laws enacted democratically, in the public interest and in harmony with national laws.

• Prevailing investment protection rules endanger public finances through threatened actions for damages. They elude the constitutional state with their private parallel law for corporations and represent an encroachment in the regulatory autonomy of states. They undermine democracy in favor of private ownership law of foreign investors.

• The conflict around global investment law in Europe becomes burning with the debate around the Transatlantic Trade agreement TTIP. The European commission temporarily suspended the negotiations on investment protection and started a public consultation on the theme. However the question is how investment protection should be organized, not whether investment protection in an EU-US agreement is needed.

• Nevertheless the current politization of the theme in the EU also offers chances for a fresh start in investment policy without one-sided corporate rights to sue and without private property rights that go beyond the constitutionally guaranteed protection of property. This could be realized with binding investor duties, for example for compliance with human rights and labor law.

The conflict around the global investment law arrives in Europe with the debate around the Transatlantic Trade and Investment Partnership TTIP. Criticism of this “parallel justice in the name of money” (Pinzler et. Al. 2014) grows especially in Germany – even in the mainstream media and the conservative party camp. Resistance against TTIP is also enflamed outside Germany, above all in the planned special corporate rights to sue.

Many international agreements exist worldwide that contain these rights to sue. They enable foreign investors to sue states before private international courts of arbitration – on account of any policy that threatens their title of ownership and expected profits from their investments, whether because of health- or environmental protection conditions or through a social and economic policy that restricts their entrepreneurial freedoms.

So the energy company Vattenfall is now suing Germany because the nuclear exist reduced their profits. In Australia and Uruguay, Philip Morris files lawsuits against anti-tobacco policies. The Canadian oil- and gas company Lone Pine sues its own government through a US branch because the province of Quebec issued a moratorium for the deep drilling technology known as fracking on account of the environmental risks in gas production.

The lawsuits will be heard before ad hoc private international tribunals, not by regular constitutional courts. These are usually composed of three private persons appointed by the contesting parties that act according to the rules of arbitration named in the respective investment agreement. They have the power to example all measures within a state on compatibility with far-reaching investor rights, laws, decisions of the executive and verdicts – and to condemn states to high compensation payments. Their judgments are binding and can be executed worldwide. Appeal proceedings are not provided.

No regular cou8rt of the world has as much power. The arbitration courts violate important constitutional principles. The independence of the arbitrators is not guaranteed. They sit in conference privately in some hotel room in London, Paris or New York. Their judgments are mostly secret. The positions of the litigating parties are extremely unequal. Investors only have rights and appear as plaintiffs or petitioners. States only have obligations and therefore are always the defendants. Investment protection agreements do not provide investor duties (for example, compliance with human rights, the rights of employees or environmental standards).

The special corporate rights to sue hide incalculable risks in the case of the Transatlantic Trade agreement. Over half of foreign direct investments in the US and the EU today come from the other side of the Atlantic. There are thousands upon thousands of branches – US companies in Europe and vice versa. According to the 2013 research of the Public Citizen organization, investor-state rights to sue in an EU-US agreement would enable 75,000 businesses to attack progressive legislation on health-, environmental- or industrial safety either directly or through subsidiaries abroad – on both sides of the Atlantic.

It is no wonder that the director of the domestic policy division of the Sueddeutschen Zeitung newspaper Heribert Pranti recently described the planned exclusive special rights to sue for big investors as a “secret coup de etat”: one of the most dangerous attacks on the democratic constitutional- and social state in history” (Pranti 2014). No wonder that the resistance against TTIP is united in rejecting this “transatlantic constitution of the corporations” (Eberhardt/ Fuchs 2013).

To take the wind from the sails of critics, the European commission first suspended the negotiations on investment protection in the TTIP. At the end of March 2014 a public consultation on the theme was initiated that will continue until the beginning of July. The question how investment protection should be arranged is the center of attention, not the question whether and why investment protection is needed in an EU-US agreement. Thus the commission is selling and polishing its own agenda and is not interested in a free discussion with an open outcome.

Still the consultation opens a space for a fundamental debate on the rules of global investment protection. Its ou9tcome will have consequences for the global struggle against the “globalization of corporate rule” and not only for the EU-US agreement” (Mies/ von Werlhof 2003). If social movements, unions, environmental organizations and other critics of corporate rights to sue successfully keep this out of the TTIP, social movements and leftist governments that try to limit the power of transnational corporations and break out of earlier neoliberal gag-agreements will be strengthened. On the other hand, if the EU succeeded in anchoring its “reformed” investor rights in the TTIP, this will give a legitimation to the globally-contested investment protection regime.

In the following, an overview on the development of international investment law will be offered first of all. In a second step, problem areas of the law will be outlined and several politico-economic classifications presented. Thirdly, current breaches and struggles over the regime of international investment law will be sketched. The arch will be drawn back to the present-day conflict within the EU. With whom is the EU currently negotiating on the theme investment protection? What action options exist toward a more democratic, more socially just and more ecological investment policy?


Without foreign investments, there would be neither transnational corporations nor global production chains. They offer direct access to sales markets, technologies, cheap raw materials and workers. Since they influence the production- and social conditions in receiver-states, they play an important role for global power relations…

Initially North-South agreements were predominant. In the 1950s and 1960s, capital-exporting states wanted to protect their investors in the former colonies. In the 1970s the agreements were part of resisting efforts for changed economic relations as manifest in the declaration for building a new world economic order. In the 1990s a regular investment race occurred in parts of the global South that led to an explosive rise of investment agreements. This race was encouraged by the dependence on private capital flows owing to the debt crisis of the 1980s, the increasing neoliberal orientation of the program of the International Monetary Fund (IMF) and the World Bank as well as the dominance of neoliberalism in this time. Correspondingly the central measures in investment agreements are based on the idea of the “wealth-creating game” (Friedrich August von Hayek) of private capital flows in a free market immunized against state interventionism and the whims of democratic politics. That market needs strong state-guaranteed ownership law for its development.

Why do states sign agreements that greatly restrict their sovereignty? Why do they give private tribunals the power to review their actions, order compensation and limit state regulations? The answer lies in a mixture of interests, delusions, misconceptions and ignorance. Interests are involved since it lies in the interest of capital-exporting states to protect “their” businesses in foreign countries. Delusions are present because developing countries above all are promised greater foreign investments from the agreements. However it is disputed up to today whether the agreements actually lead to more investments. Quantitative studies come to conflicting results. Qualitative studies suggest that the agreements play no role or only a marginal role for investment decisions of businesses…

Alongside the salvation promises of more investments, ignorance toward the political and economic risks of investment agreements plays a central role on their signing. In the past, negotiations often only lasted a few hours. Sometimes lawyers and ministers of justice were not involved. The confession of a former Chilean negotiator is exemplary: “Like most countries, we signed many agreements in the 1990s without understanding what obligations we assumed” (Poulsen 2013), 10). The risks often first become clearer years later when the state is sued.

Once again the global South sits most often in the dock in investor-state proceedings. According to UNCTAD (2014, 7-8), three quarters of all suits up to the end of 2013 were directed against developing- and threshold countries. In the large majority of cases – 85 percent -, an investor from the global North sued. Argentina and Venezuela are the countries most often dragged before the investment courts of arbitration…

The state violations that are punished in investor-state lawsuits were successively expanded in the last two decades. While arbitrary expropriations and discrimination of foreign investors were originally reasons for suing, they are increasingly directed against laws that were composed democratically, in the public interest and in harmony with national law…

Several factors increased the state risk of being sued in the last years. Firstly, investor-state lawsuits have become well-known in the business world. Correspondingly the number of lawsuits exploded – from a dozen in the middle of the 1990s to 568 lawsuits at the end of 2013 (UNCTAD 2014). 1) The number of unreported cases raises the number of lawsuits on account of the non-transparency of the system. The tendency is rising. In 2013 alone according to UNCTAD, there were 57 new lawsuits, only one less than the previous year, the record year for new lawsuits.


In the following, four problem areas of investment law or arbitration law will be distinguished:

a) the danger for public budgets and taxpayers,

b) risks for the regulatory autonomy of the state,

c) constitutional problems in the context of privatization of law, and

d) the infiltration of democracy…


1. Corporation against health protection – Philip Morris vs. Uruguay and Australia

2. Corporation against nuclear exist – Vattenfall vs. Germany

3. Corporation against protection of the atmosphere – Lone Pine vs. Canada

4. Corporation against water supply – Pacific Rim vs. El Salvador

5. Corporation against compensation for environmental crimes – Chevron vs. Ecuador

6. Corporation against the debt cut – Postova Banka & Istrokapital vs. Greece

7. Corporation against minimum wage – Veolia vs. Egypt. Since 2012 the French waste disposal firm Veolia Egypt has sued on the basis of a bilateral investment agreement between France and Egypt on account of the alleged violation of an agreement for garbage removal in the city of Alexandria. The city refused changing the contract. Veolia wanted to reduce higher costs – because of the introduction of a minimum wage. The theft of garbage cans by the local population was not prevented by the local police according to Veolia. According to media reports, Veolia wants 82 million Euros compensation (Karadelis 2012).

8. Corporation against the Arab Spring – Indorama vs. Egypt

9. Corporation against copyright law – Eli Lilly vs. Canada

10. Corporation against protection of the atmosphere – Renco vs. Peru


A second problem area lies in the pressure applied from the investment agreement and investor-state lawsuits on state regulations. Sometimes the threat of a lawsuit is enough to strangle or water down planned laws. This is “regulatory chill” in the expert jargon. Five years after the free trade agreement between Mexico, Canada and the US took effect; a Canadian government official described the phenomenon as follows: “With nearly every new environmental measure, letters to the Canadian government arrived from law offices in New York and Washington. Dry cleaning, medicines, pesticides and copyright law were involved. Nearly every new initiative was scrutinized and most never saw the light of day” (Greider 2001)…

Besides the weakening, prevention and delay of regulations, investor-state lawsuits can lead to socializing profit losses of individual businesses as a result of political reforms – when the regulations are necessary for protecting the community. According to US author William Greider (2001), that is precisely the function of investor laws in agreements like the North American Free Trade agreement NAFTA. They are part of a “long-term strategy well-thought out by the capital side” for redefining “state regulation as taking away possession necessitating compensation.” Formulated differently, whoever regulates should pay.

For this “new international super-basic right to undisturbed investment” (Pranti 2014), protection from “indirect” expropriation common in investment agreements is central, protection from measures, it is argued, that have a similar economic effect as the taking away of property. The consequences of this doctrine of protection from indirect expropriation, according to Greider, are far-reaching and intentional: “Since every new regulation has a certain economic effect on private property, this doctrine is a prescription for ruining the regulating state, for infiltrating the protection of social welfare, economic justice, ecological values and individual freedoms gained in long struggles. Rightwing supporters of the system openly admit the primacy of private property over more general social demands is central” (Greider 2001).

The palette of political measures that can be attacked by a doctrine like protection from indirect expropriation was clearly described by two lawyers in a brochure with the alarming title “Help, I am expropriated!” It says: “The possible variety of harmful state actions is nearly unlimited” and in its totality equals an expropriation. For example, the state could introduce new taxes that make continuing a business economically ridiculous, enact environmental laws through which products manufactured in the past are prohibited or state-regulated tariffs are lowered, perhaps in the electricity-, gas- or telecommunications- sectors or in toll-roads and thereby destroy the financing of a project (Germany Trade and Invest 2011, 5).


Investment law involves a privatized legal system that uses arbitration procedures to solve conflicts between two businesses. This “shadow justice in the posh-hotel” (Heinrich et. Al 2013) is totally unsuited for reviewing all the state regulatory instruments and judgments on compensations in the millions or billions that taxpayers ultimately must pay.

Remember, no regular court of the world has as much power as the private tribunal that decides over investor-state lawsuits…

The constitutional state perversion” (Pranti 2014) of private arbitration is manifest in the breach of central constitutional principles: equality before the law [Private courts only exist for “foreign” investors. “Normal” businesses and people must use “normal” courts.]. transparency of procedures [They are mostly secret like the arbitral awards and unquestioning legal obedience [Third parties like local communities have no right to information…]. In addition, this is a one-sided parallel law in which only investors can sue in court, not the state when investors ignore human rights or pollute the environment. No duties are imposed on investors.

In this asymmetrical legal system, breach of the principle of the independence of justice becomes a problem. The lawsuits are not decided by regular courts with incorruptible judges who do not lose their office in case of “disagreeable” judgments… Their salary should be secure independent of their judgment and the number of cases. These are all important institutional guarantees for judicial independence.

Investor-state lawsuits are decided by ad hoc tribunals of three private persons that are appointed by the contesting parties and paid by hourly or daily royalties per procedure. They earn $3000 a day (ICSID 2013, 1) in the most used institution for investor-lawsuits, the Washington International Center for Settlement of Investment Disputes (ICSID). The same arbitrators are appointed. Insiders call them the “club” or the “inner Mafia” (quoted according to Corporate Europe Observatory/ Transnational Institute 2012, 36, 38). 15 of them decide 55 percent of the investor-lawsuits known up to the end of 2011 (ibid, 38). This points to a full-blown conflict of interest…

The problematic independence and the tendency to investor-friendly legal interpretations demonstrate that the supposed neutrality of private arbitration constantly advanced by its defenders is far removed from reality. Courts of arbitration are not “more just” as the Frankfurter Allgemeine Zeitung newspaper titled a recent article – from the pen of a former investment protection lawyer (Bubrowski 2014). The inherent bias of arbitration also makes clear that “easy reforms to a better system” (Griebel 2014) are impossible as long as legal interpretation is left to a private justice machine with a financial- and career interest (see Point 4).


Counter-hegemonial forces narrowing democracy are ultimately central in investment law. A quotation of two co-workers of Milbank (Nolan/ Baldwin 2012, 49), one of the leading law offices in international investment law, explains: There are not only undesirable measures of governments in autocratic rule. The populism that democracies can bring is often the catalysor for such actions. No wonder countries like Argentina and Ecuador that cancelled privatizations after tremendous social conflicts and nationalized businesses are among the countries that were sued most often before investment courts of arbitration.

The research program on the “new constitutionalism” initiated by Stephan Gill is suited for the critical analysis of international investment law. Gill analyzes political-juridical structures that secure neoliberalism and existing property relations quasi-constitutionally by limiting state possibilities of intervention and democratic control. The political is redefined – for example when investment policies are depoliticized through establishment of economic principles in investment agreements and evasion of the democratic controls.

Democracy is whittled down by absolutizing private property rights and priviligizing foreign interests. Only foreign investors have the possibility of threatening in political debates expensive investor-state lawsuits with regulations in a parallel legal system only accessible to them in which states are regularly condemned to high compensation payments. That gives them enormous power to influence political decisions in their interests over against other social groups – unions, local businesses and citizen initiatives. Only they can appeal to the excessive protection of private property which is broader than what is anchored in most national constitutions and does not know the social obligation of property (see Hoffmann, 2013). Thus the “de facto-expropriation” “necessitating compensation” does not exist in the German basic law (Dederer 2012) although an indirect expropriation always requires compensation according to investment law – even when it pursues a public goal…

Another effect of investment agreements is the constitutional sanctioning of the “internationalized competition state” (Joachim Hirsch) that appears less as a controlling authority of economic actors than the orientation of national and regional planes to the global competition through harmonization of policies. The legal scholar David Schneiderman (2008) analyzed this in the example of many constitutional changes (for example in Latin America) throu9gh which property conceptions limiting private property rights to the goal of social redistribution by the state were edged out of national constitutions in favor of liberal conceptions. The state is strengthened in its function as an enforcement authority of private property rights while distribution- and social-political competences are whittled down.


These processes are not free of contradiction. Rather there are immense breaches in and intense struggles around the regime of international investment law. (The website of the network for justice in global investment offers an overview, Critical scholars worry over the risks for state regulation, public budgets and democracy (for example, Public Statement on the International Investment Regime 2010). Some states have turned away from parts of the regime and try to build alternatives. Even among defenders of the regime, a legitimation crisis must be worked out in discussions (for example, Waibel et. al. 2010).

Resistance is developing against the neoliberal supra-constitution of international investment law above all in the global South. South Africa has cancelled agreements with some EU states including Germany and declared that other agreements from the post-apartheid era will be cancelled that the country hastily resolved at that time to attract investments. Indonesia takes similar steps. According to media reports, India is working out a model agreement for investment protection that is very different from the models of the post-colonial era of the 1990s and 2000s. Bolivia, Ecuador and Venezuela have cancelled several investment agreements and the ICSID convention on establishing a court of arbitration of the same name withy the World Bank. In Ecuador, a commission reviews whether the agreements of the country are compatible with national law. At a meeting of the countries of the ALBA alliance (Bolivarian Alliance for America) in April 2013, a review of present agreements was resolved as well as establishing a regional institution to resolve conflicts with foreign investors.

A paradigm shift is occurring in some industrial countries and international organizations. In 2011 the Australian social-democratic Gillard government announced it would not negotiate any investor-state right to sue any more in its free trade agreements. The successor conservative government also recently concluded an agreement with Japan that did not include the right to sue. While UNCTAD urged countries of the South to sign investment agreements in the 1990s, it sketches options for reforming current investment policies in recent publications (2012, 2013s) – from limited rights for investors to investor duties. Beside UNCTAD (2013b, 3-4), even the IMF warns (2012) that investment agreements can massively restrict states in fighting economic and financial crises.


…Around 3200 investment agreements were concluded worldwide… No country has more bilateral agreements than Germany (139). Investors with headquarters in the EU are ardent plaintiffs. Most investor-state lawsuits were launched by investors from the US (127 proceedings) followed by investors from the Netherlands (61 procedures), Great Britain (43 procedures) and Germany (39 procedures) (UNCTAD 2014).


11. Corporation against anti-discrimination – Foresti and others vs. South Africa

12. Corporation against conservation of nature – Metalclad vs. Mexico. The US waste company Metalclad sued Mexico in 1997 on the basis of the NAFTA agreement for $90 million compensation. A decontamination site for toxic wastes was built in a Mexican community. The site was endorsed by the Mexican government. However the community subsequently imposed a construction moratorium and declared the area a nature conservancy zone. Metalclad suede for compensation and received $16.2 million compensation (Public Citizen, 2014, 22).

13. Corporation against policy for combating economic crises – Investors vs. Argentina

14. Corporation against protection of the atmosphere and health safety – Ethyl vs. Canada

15. Corporation against protection of the atmosphere – Vattenfall vs. Germany

16. Corporation against national courts – Deutsche Bank vs. Sri Lanka

Since 2009 there has been a discussion on how investment protection should be organized EU-wide in the future. The provisional result of the debate is a series of corporate-friendly guidelines and mandates for investment-protection negotiations of the EU with Canada, India, the US, Japan, Mexico, Tunisia, Egypt, Jordan, China and the ASEAN states (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, the Philippines, Thailand, Singapore and Vietnam.

In the context of negotiations with the US, several non-governmental organizations successfully politicized the theme and mobilized broad parts of civil society against the transnational constitution of corporations. The European Commission (2013) countered this politicization with an offensive PR initiative that should dissipate the concerns of the public and promised a “new beginning” with the theme. Vaguely formulated investor rights like “fair and just treatment” or protection from “indirect expropriation” should be clearly defined, the state “regulatory law” protected and the dispute settlement procedures made transparent and independent. Lawsuits like the Philip Morris suit against anti-tobacco laws in Australia and Uruguay would not be possible under the reformed investor rights, the commission says.

A closer look at the reform proposals shows this is not true. Firstly, the supposedly waterproof definitions of investor rights contain many loopholes for broad investor-friendly interpretations by the arbitrators. For example, the general clause of “fair and just treatment” could be interpreted more expansively than under the NAFTA agreement. This has a fire risk since this elastic clause has developed to an all-purpose weapon for investors with which most lawsuits are won today (Bernasconi-Osterwalded/ Liv 2013). The commission now wants to expand the standard so it expressly protects the “legitimate expectations” of investors. Could tax increases disappoint the “legitimate” expectations of an investor when previously low tax rates promised huge profits? Could a fracking moratorium violate the fair and just treatment of a gas company when a government earlier signaled its support for the controversial drilling method? Can the legal and economic environment change in which an investor acts? The worry as to their legal interpretations is very appropriate because of the inclination of arbitrators to answer these questions in favor of the investor…

Thirdly, the “constitutional perversion” (Prantl 2014) of the private arbitration system is generally not addressed with the exception of the transparency of the procedure of the commission: hearings should be public in the future and statements of claims and other essential documents should be published. Instead of equality before the law, there are special rights and special courts for investors. Their parallel legal system remains one-sided since duties for investors – for example, on complying with labor law – are not found in the proposals of the commission (According to the commission’s proposals, an investor forfeits his right to bring lawsuits when investments are corrupt. This is not the same as a duty to avoid corruption.). Impacted third parties cannot assert their claims in the procedures (Non-governmental organizations or unions should be able to bring their opinions into the procedures according to the commission’s proposal.). There are not institutional guarantees for the independence of the arbitrators who will be appointed by the litigating parties and paid per procedure in the future (The commission will issue a code of conduct for arbitrators in the future. Such a code should not be confused with institutional guarantees for judicial independence.). Appeal proceedings before independent courts are not planned in the foreseeable future (The EU commission has annou9nced that appeal proceedings should be added.).

Thus the reform proposals of the commission do not establish the promised new beginning in international investment law. Rather the proposals are marginal “little reforms” that re-legitimate the increasingly contested global legal field without touching the hard core of company privileges. “Reformed” investment protection a la the European commission will grant foreign investors more far-reaching rights of private property than they have in the German basic law for example. In the private arbitration system, an exclusive corporate-friendly parallel legal system is made available to them to sue for these rights. Thus future EU investment agreements would also be part of the “new constitutionalism” that disciplines governments and limits anti-hegemonial actors or redistribution processes.

The central open questions about the investment arbitration system are not answered… Why should tribunals of three private persons that violate essential constitutional principles be given power to review our courts, all laws of our parliament, all decisions of our governments and all judgments of our courts and impose high compensation payments? Why should we give power to a single group in our society – foreign investors – to appear before these tribunals and expand their power in the political process without their accepting obligations?


The support of the reform agenda of the commission by the economic lobby suggests that the way to a socially just, ecological and democratic investment policy will be thwarted. Apart from the “little reform,” the current politicization of the theme in the EU offers chances for a genuine fresh start in investment policy along the following guidelines:

• Future investment agreements should not contain either one-sided investor-state rights to sue or rights of private property that go beyond property protection in national constitutions.

• Investments should satisfy binding obligations, for example compliance with human rights and labor law, protection of the atmosphere and the climate and payment of taxes in the host state.

• Current agreements should be cancelled or re-negotiated so they do not limit state regulatory autonomy and are neither in contradiction to human rights and labor law and other social goals like future-friendly development nor violate constitutional principles…

The intensifying breaches in the global investment regime offer many starting points for a genuine new beginning in environmental policy. The history of resistance against free trade- and investment agreements shows that these anti-democratic neoliberal straitjackets could be prevented if texts negotiated in secret are successfully made public and politicized. At the end of the 1990s, the globalization-critical movement brought to the public’s attention the largely unknown MAI agreement – an investment agreement negotiated in the framework of the OECD. Like a vampire, it could not survive as soon as the light of a critical public debate appeared. In October 1998 France allowed the negotiations to break down. Emancipatory forces in Europe should do everything so this part of history is repeated in the conflict over the TTIP – and with all the other planned corporate constitutions of the EU.


“Will US-EU Trade Become Too Free?”, Spiegel 4/2014

John Hilary, “TTIP; Deregulation, Attack on Jobs and End to Democracy,” February 2014, Rosa Luxemburg foundation, 42pp
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