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2 Feb 2023

Sarah Lazare, The American Prospect

US: How Biden can end ISDS system in trade agreements

'How Biden Can End Secretive Corporate Tribunals', 2 February 2023

In May 2020, then-presidential candidate Joe Biden told the United Steelworkers that his administration would end the inclusion in future trade deals of investor-state dispute settlement (ISDS) provisions. This little-known, but tremendously impactful, mechanism establishes secretive corporate tribunals that can award foreign investors damages from sovereign governments. ISDS has been used by some of the biggest corporations on Earth to wring millions—and even billions—of dollars from mostly Global South countries for the “crimes” of passing environmental regulations, implementing labor protections, banning toxic substances, denying mining permits, or other democratically agreed upon measures. “I don’t believe that corporations should get special tribunals that are not available to other organizations,” wrote Biden in response to a questionnaire from the union.

Two and a half years later, Biden has held to the pledge of keeping ISDS out of future trade deals; in fact, his administration hasn’t completed any new trade agreements. But ISDS lives on in existing trade deals. The United States has bilateral investment treaties with 40 countries and 14 “free trade” agreements with 20 countries. Most of these have ISDS provisions, according to the Congressional Research Service. And corporations are still using them to attempt to extract a fortune from poorer countries in secret tribunals...


Agreements typically allow companies to bring ISDS cases in response to violations of “fair and equitable” treatment. Melinda St. Louis, the director of Public Citizen’s Global Trade Watch, explains that corporations and some tribunals have interpreted this standard broadly. “When [corporate] expectations are different from what happened, they say it is unfair, even if domestic companies received the same treatment,” says St. Louis.

Another common standard is the protection against indirect expropriation, which has been interpreted by some tribunals as government actions or rule changes that reduce the overall value of an investment, or threaten expected future profits. “This asks taxpayers to fund the business risks of international investors,” says Ruth Bergan, the director of the Trade Justice Movement. “It puts private risk into public hands. It socializes risk.”...