By the end of 2018, the unified campaign TNI has helped to build around the world had contributed significantly to sustaining the public de-legitimation of investor-state dispute settlement (ISDS) mechanisms. This is evidenced by reform being high on the agenda of the UN and many governments around the world, as well as more coverage in the mainstream media about the ISDS controversy.
As a consequence of these efforts, 2018 saw the US, Canada and Mexico exclude ISDS from NAFTA; Indonesia’s Constitutional Court rule that all international trade and investment agreements must be subject to parliamentary ratification; Tanzania cancel its Bilateral Investment Treaties (BITs) with The Netherlands; the European Court of Justice rule that all intra-EU BITs are illegal – with around 1500 treaties now to be cancelled and a precedent being set for EU member states to cancel BITs with non-EU countries too; and the International Court of Justice restricting its members from serving as arbitrators in ISDS arbitrations, preventing the potential conflicts of interest which TNI exposed back in 2012.
TNI and allies helped spark debate in the Argentinian Senate, resulting in delays to the signing of a free trade agreement with Chile and a BIT with Qatar, and media coverage of ISDS controversies there, as well as in Uruguay.
The other important front has been Europe, where the European Commissioner declared ISDS “toxic” and proposed that negotiations for a Multilateral Investment Court (MIC) be conducted under the auspices of the United Nations Commission on International Trade and Law (UNCITRAL), which the EU hopes will provide a more neutral setting for agreeing how to handle trade and investment disputes. While this step demonstrates acknowledgement of the flaws in the current ISDS system, particularly the role of private arbitrators, TNI remains critical of a MIC as it does not address the fundamental problem with investor protections superceding public interest decisions by governments and will merely serve to strengthen the ISDS system.
Meanwhile, in The Netherlands, the second most frequent source of ISDS cases, the Handel Anders (Trade Differently) campaign was launched, hosted by TNI with a broad alliance that includes trade unions, farmer, consumer and environmental organisations. The Dutch Minister declared that ISDS provisions were not necessary between developed countries. The campaign also mobilised 1600 people to participate in a public consultation on the new Dutch model BITs, and generated media coverage for the first time helped by a report on 50 years of ISDS in Dutch treaties. The Minister responsible announced that the final model BIT would need to be ratified by Parliament.
TNI has also undertook research on the ISDS mechanism that the Chinese Government is developing for its Belt and Road Initiative (BRI) agreements under China’s People’s Supreme Court, and is starting to raise awareness of the implications of this for countries that participate in BRI.
Following TNI’s co-publication of a report on how the Energy Charter Treaty (ECT) obstructs efforts to bring about energy transition, The Netherlands also agreed that it would renegotiate its position within the ECT to ensure that the ISDS provisions are in line with the model BIT. Meanwhile, in Spain, which is the most sued country under provisions of the ECT, a national campaign has been launched for withdrawal from the Treaty. In Pakistan, which decided not to accede to the ECT, the TNI co-publication was cited by media after the fact.
Meanwhile, in Latin America and Europe campaigns against ISDS have joined forces with the campaign for a UN treaty on transnational corporations and human rights. The former was formally launched in Argentina during the World Trade Organisation (WTO) and G20 Summits there at the end of 2018, and the latter soon after at a strategy meeting of campaigners in Brussels.