At 02:52 09/05/2012, Darrell wrote:
1) How , in the name of all that is sane, did this ever come to pass?
Because governments are not the simple
all-powerful systems that most imagine them to
be. In almost every instance they have been the
simple products of warfare and thus accidental to
every other aspect of daily life. The founding
fathers of America were well aware of the danger
of populism (and the unitary power that usually
follows) and tried to make sure that there'd be
countervailing pressure groups from the start --
administration, legislature, judiciary. They were
not then aware of the looming power of the press,
nor of the powerful businesses that would arise,
nor of academia, nor of powerful internal
bureaucracies (defence department, etc), nor of
institutionalized accountants, lawyers, doctors,
sports bodies, nor of a welter of other highly specialized interest groups.
Modern governments are increasingly unable to
operate the various systems that they'd
previously laid claim to, such as taxation or
crime or their national economy. All the
subsidiary specialized pressure groups mentioned
above are now becoming increasingly powerful
vis-a-vis politicians, many are moving into
successful transnational activity. We' re moving
into a quite different era in which innovation is
driving and shaping quite new forms of governance
that are far from the ballot box. Unless you're a
senior member of one of the specialized pressure
groups, trying to get maximum resources and
political power for your own group then there's
nothing that can be done about the process of
change -- except to observe and to look after
yourself and yours as best you can.
Keith
and 2) How, in all good conscience could the
court of any country being sued allow judgment
against said country? Is the court in some other country like the U.S. of A.?
3) Who are the insanely greedy individuals who
drew up these treaties and why would any sane
country vote for them or allow them to be
invoked when signing a trade agreement?
Is this part of the "rule of law" that has been
brought forth on this list that informed people should not revolt against??????
Darryl
Global Corporations Undermining Democracy Worldwide
By Isolda Agazzi
Inter Press Service via commondreams
May 7, 2012
<http://www.commondreams.org/headline/2012/05/07-0>http://www.commondreams.org/headline/2012/05/07-0
GENEVA - In a world where governments are increasingly
subservient to global finance capital, multinationals are
gaining ground in the fight against state regulations that
aim to protect the environment, public health or social
policies.
According to the most recent data released by the United
Nations Conference on Trade and Development (UNCTAD), the
number of lawsuits brought against governments by companies
evoking clauses in bilateral investment treaties (BITs) was
450 at the end of 2011.
These are only the known cases; most are kept secret.
In the many instances in which these lawsuits have been
successful, governments have been made to pay fines amounting
to tens, sometimes hundreds of millions of dollars or euros.
The highly controversial BITs - which establish the
conditions for investment by companies of one country in
another state - have handed multinational corporations an
arsenal of clauses with which to fight state regulations
against harmful investment.
In 2011, Argentina held the record of known cases (51),
followed by Venezuela (25), Ecuador (23) and Mexico. Most of
the claims against Argentina are related to the 2011
financial crisis and many to the privatization of water. In
total, Buenos Aires has been fined more than one billion
dollars by multinational corporations.
Last year, Ecuador was forced to pay fines of 78 million
dollars to the United Statesâ oil company Chevron, which
claims that the countryâs efforts to protect the Amazon from
pollution have negatively affected business.
This year, Argentina may face a new case, after the
government moved to regain state control over the countryâs
biggest oil firm, which had been owned by the private Spanish
oil company Repsol for many years.
According to UNCTAD, the year 2011 saw 40 percent of cases
decided in favor of states and 30 percent in favor of
investors, while the remaining 30 percent resulted in
settlements.
Ironically, BITs allow companies to sue governments but not
vice versa.
In December 2011, for instance, the Stockholm-based
Vattenfall threatened to sue Germany for the federal
governmentâs decision, in the aftermath of the Fukushima
catastrophe, to phase out nuclear energy by 2022.
The Swedish nuclear company was poised to rake in
compensation amounting to more than a billion euros. Evoking
the Energy Charter Treaty - a multilateral agreement that
protects investment in the energy sector - Vattenfall first
tried, unsuccessfully, to convince the federal government to
accommodate its requests.
The deadline for peaceful dispute settlement expired last
March and now Vattenfall could sue the government at any
time.
"Germany has around 130 BITs that could potentially severely
restrain its environmental policy," Nathalie Bernasconi, of
the Geneva-based International Institute for Sustainable
Development (IISD), told IPS.
"Foreign investors may challenge, in an international
arbitration process, any change in law and policy to protect
the environment and public health, to promote social or
cultural goals, or to grapple with financial or economic
crises. However, it is impossible to predict the outcome with
any precision because each will depend in large part on the
composition of the arbitral tribunal deciding the case, which
consists of three highly-paid individuals, typically
specialized in commercial rather than public law."
It is the second time that Vattenfall has attacked Germany on
environmental charges. In 2009, it challenged the standards
set out in an environmental permit required for the operation
of its coal-fired power plant situated on the river Elbe,
which runs through Hamburg.
Claiming that the regulations - aimed at limiting the
increase in water temperatures caused by the plantâs
operations - were too strict, the company brought the case to
an arbitral tribunal at the International Center for
Settlement of Investment Disputes (ICSID).
In order to settle, Germany agreed to change the conditions
under which the permit was delivered and the case was
dropped.
"A legal analysis by a German law firm commissioned by
Greenpeace confirms that the environmental standards in the
permit were diluted in a way that was probably not required
under German law. It is a typical case where a government...
(has) abandon legislation or standards it originally planned
to adopt out of fear of being sued or condemned in an
international procedure," Bernasconi commented.
Another emblematic example of the power corporations wield
over governments is the case brought by Philip Morris
International against Uruguay and Australia under BITs the
countries had signed with Switzerland and Hong Kong
respectively.
The U.S. tobacco giant is using these treaties to challenge
new legislation concerning the health warnings and
advertising on cigarette packages - even though the
regulations are in compliance with and encouraged by the
World Health Organization (WHO) framework convention on
tobacco control.
According to Veijo Heiskanen, a specialist in international
arbitration at Lalive law firm in Geneva, "From the 1960s to
the 1970, states had a direct role in economies. With the
privatization (wave) of the 1990s, this direct role was
replaced by regulation."
This led to questions about whether the implementation of
these regulations was adversely affecting investors,
particularly foreign ones, which is often the case.
While investor protection was initially necessary to regulate
government measures like nationalization, the trend now seems
to be leaning heavily on corporations challenging these
regulations.
For example, in the late 1990s, Mexico was fined 16.7 million
dollars for forbidding the U.S.-based company Metalclad from
dumping toxic waste in the Guadalcazar County in the northern
part of the north-central state of San Luis PotosÃ.
"The real question is whether (BITs) regulations are
appropriate and states should seek (sound) legal advice to
make sure that they are in compliance with international
standards," stressed Heiskanen. "These disputes are
politically sensitive because there are (millions of dollars)
at stake."
Prior to paying fines to Chevron last year, Ecuador was
sentenced to the payment of 700 million dollars back in 2010.
That same year the Swiss cement supplier Holcim obtained 650
million dollars from Venezuela, when the country nationalized
cement production.
All experts are agreed that legislation and regulations need
to find a better equilibrium so that they cannot be exploited
by states or investors.
"Investment protection treaties must be modernized to strike
a better balance between investorsâ and states rights,"
Bernasconi concluded. "The old model doesnât work any more."
States and citizens alike have become extremely mistrustful
of the dispute settlement process. "The commercial
arbitration model on which investment arbitration is built is
just not adequate for resolving sensitive issues of public
policy," she added.
"A lack of transparency, unpredictability and conflicts of
interest have simply become unacceptable. This discontent has
led countries like Australia to disfavor investor-state
dispute settlement entirely and others to terminate their
investment treaties.
"Watching these developments, countries like Brazil, which
never ratified any of its investment treaties, must count
themselves lucky," she added.
© 2012 IPS North America
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Keith Hudson, Saltford, England http://allisstatus.wordpress.com
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