Government

Lighthizer’s new NAFTA paradigm

By Robert Lighthizer, US Trade Representative (2017)

"I’ve had people come in and say literally to me, you can’t do this, you can’t change ISDS ... you can’t do that because we wouldn’t have made the investment otherwise ... I’m thinking then why is it a good policy for the United States government to encourage investment in Mexico? My position is if the market makes that position, then the market should make that decision."


Private investor tribunals may not be needed

By Joost Korte, DG Trade, European Commission (2017)

"It is important for the European Union to keep taking the lead in the global discussion about dispute settlement on investment protection. It is of course a very difficult discussion and that is also why, for instance, member states and others would argue that for countries like New Zealand and Australia, we may not even need a special dispute settlement system, an investment court system or even a multilateral investment court because these are countries that are run by the rule of law. Any company that’s not happy can surely find access to the court."


Clinton and Sanders go deep on ISDS

By Hillary Clinton, former US Secretary of State (2016)

"With respect to the flawed ISDS provisions in TPP, I think we need to have a new paradigm for trade agreements that doesn’t give special rights to corporations that workers and NGOs don’t get."


Investor-State Dispute Settlement (ISDS)

By Office of the US Trade Representative (2015)

“While ISDS does not provide additional substantive rights relative to U.S. law, it does provide an additional procedural right: the right for foreigners to choose impartial arbitration rather than domestic courts when alleging that the government itself has breached its international obligations, whether by discriminating against a foreign investor, expropriating the investor’s property, or violating the investor’s customary international law rights.”


Croatia: Government skeptical of the validity of ISDS

By Irena Alajbeg, Head, Trade and Economic Agreements Department, Croatian Ministry of Foreign Affairs (2014)

“There is a clear growth of investor to state disputes with many evident flaws. Even if we disregard the huge costs of arbitration for the respondent state (especially in case of frivolous claims to which some states are exposed together with lately popular third party funding claims) and reduced policy space, both of which represent a big concern for most states, we cannot disregard the fact that the system we have created is far from legal certainty and stability - what we have today is a number of contradicting awards, problems with enforcing such awards, un-transparent proceedings and insufficient appellate mechanism.”


France: High level official opposes ISDS

By Mathias Fekl, French Secretary of State for Foreign Trade (2014)

“France did not want the ISDS to be included in the negotiation mandate. We have to preserve the right of the state to set and apply its own standards, to maintain the impartiality of the justice system and to allow the people of France, and the world, to assert their values."


Namibia doubts correlation between FDI and investment treaties

By Malan Lindeque, Permanent Secretary, Namibian Ministry of Trade and Industry (2014)

“It is a known fact that there is a significant risk inherent to ISDS for host countries, particularly developing host countries, while statistics show that claimants are predominantly investors from industrialized countries. More worrying of course, is that legal and arbitration costs are significant and are especially posing challenges to developing states. The resulting awards and the high cost of ISDS proceedings, including important legal counsel and arbitrator fees, can pose a significant budgetary threat for many developing countries.”


125 state legislators representing all 50 states write to TPP negotiators urging rejection of investor-state dispute settlement

By 125 US state legislators (2012)

“Investor-state dispute settlement (ISDS) clauses allow foreign investors the right to sue governments directly in offshore private investment tribunals, bypassing the courts and also allowing a "second bite" if the investors do not like the results of domestic court decisions. Although the investor-state tribunal has no power to nullify U.S. federal, state, and local laws, in practice, when a country loses to an investor, it will change the offending law, or pay damages, or both.”


More ISDS quotes: Official government statements and actions against investor-state dispute settlement