The CETA’s “Investment Court System”: A Supreme Tribunal to Protect the Wealth of Foreign Nationals

Imagine if governments proposed a supreme tribunal for the world. The tribunal would have the power to review anything countries can do in their sovereign role. It could review countries’ laws and regulations at any level. It could review the judgments of their highest courts.

If the tribunal thought a country’s decisions were illegitimate or unfair, it could award as much public money as it thought right, even billions of dollars, to those aggrieved. The awards would be more widely enforceable than any other kind of court or tribunal order against a country.

The tribunal would be subject to little or no review in any court and those bringing claims would not have to go through the country’s own courts first, regardless of how well they delivered justice, before resorting to the tribunal.

Remarkably, the tribunal would not even have judges. That is, it would not have the usual safeguards of independence and fairness – judicial security of tenure, for example – that we see in courts. Instead, the tribunal would be staffed by lawyers who, among other apparent conflicts, would be paid by the case and have a direct financial interest in more claims being brought against countries.

Most importantly, the tribunal’s purpose would be to protect the assets of foreign nationals. By ‘foreign nationals’, I mean mostly large companies and very wealthy people. Thus, the tribunal would enforce extraordinary rights, without corresponding responsibilities, for multinationals and the rich.

I suspect a proposal like this one not be very popular and that most governments would agree with my assessment.

Yet the Canadian government and European Union have gone ahead with the idea anyway, as have many other governments. Indeed, a tribunal of this kind already exists, with technical names like “investment treaty arbitration” and “investor-state dispute settlement”.

The details of how these foreign investor protection mechanisms work are found in hundreds of little-known “bilateral investment treaties” and in far-reaching new trade deals like the Canada-Europe Comprehensive Economic and Trade Agreement (CETA).

True, the mechanisms have mostly been used, since the 1990s, to discipline developing and transition countries, not developed ones. Yet governments are looking to change that. In doing so, they would lock them in for everyone as a type of supreme tribunal for the world.

In the CETA, Canada and the European Commission now call the tribunal an “investment court system” and brand the CETA itself as “progressive”. Both labels are misleading, to put it mildly.

Really, the CETA’s foreign investor protection mechanism and investment court system are Exhibit A in how the rules of the global economy are being re-written to favour the wealthiest and least vulnerable economic actors, at the expense of everyone else.

By “everyone else” I mean hundreds of millions of ordinary Canadians and Europeans, who I expect do not have the time or interest to sort through the CETA’s legalese. So they may have to decide whether to trust someone like me when I say: the CETA’s investment court system should be opposed because it does not meet four basic criteria.

First, it does not reflect careful use of public money. Second, it is not balanced in allocating rights and responsibilities. Third, it does not ensure independent and fair dispute resolution. Fourth, it does not sufficiently respect domestic institutions, especially the courts.

For any of these reasons, the CETA should be opposed. If it is going to be approved, then approval should exclude the CETA’s investment court system.

Whatever you call it, we just don’t need a new supreme tribunal to protect big multinationals and the super-rich from all the rest of us. They’re doing well enough already.


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Gus Van Harten

Gus Van Harten is a professor at Osgoode Hall Law School in Toronto, Canada. He specializes in international investment law. His research is freely available at http://ssrn.com/author=638855 and his books include Investment Treaty Arbitration and Public Law (2007), Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration(2013) and Sold Down the Yangtze: Canada’s Lopsided Investment Deal with China(2015).

 

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