Mr Kahale might be an expert, but that doesn't mean he is not biased toward his clients.
After all, the scope definition clause was a futile attempt from the beginning, since any law can be dressed up as environmental or "deemed appropriate" by the State. I don't really trust lawmakers on this, (nor corporations not to abuse these treaties as yet another venue to argue their bullshit or righteous grievance), let's a 3rd party decide this.
Because in case of Germany vs Vattenfall, when Germany was phasing out nuclear power, they should have calculated with the costs of this. You apply for a very costly permit, and boom, that sector has just been banned by the State, because irrational fear.
The same goes for the MFN (most favorable nation) clause. A state shouldn't pick and choose how it treats foreign companies as long as they act according to its laws, so it should place the same economic incentives and burdens on them.
Strange, for Mr Kahale or for the Guardian to not mention in November that the Award was Annuled in October in the Occidental vs Ecuador case.
Again, the concept is sane. Why require a fixed courtroom, when the important point is objectivity, and that parties select judges they trust who then in turn select the chair of the tribunal, so someone both parties' experts trust.
They usually do rely on (that is cite in similar cases, and usually similar cases reach similar outcomes) precedent, but since this is not a "common law" but a "civil law" (codified law) system, precedents are not binding. And there is a process for appeal, as seen in the Ecuador case. And yes, judges judge based on their opinion (interpretation) of the law. News at 11 :|
> The arbitrators can also be severely conflicted, says Kahale, because they may act as a judge one day and as a lawyer for a party the next.
Then don't pick them as your selected champion/judge. Duh. That's how Kahale is making his money, he runs a law firm representing countires. So they are usually on the States' side, maybe even sometimes lending a lawyer as a judge for a country.
> .. nor are they required to act like courts
Umm, they do? The treaty specifies the details, but most arbitration providers have very specific rules of procedure, just like courts.
tl;dr arbitration tribunals ain't saints, but they seem much more sane, egalitarian and fair, than a host country's high court (which are usually ideologically biased either traditionally or after the current regime stuffs it full of its trustees)
Mr Kahale might be an expert, but that doesn't mean he is not biased toward his clients.
Sorry, I don't follow. He's an expert lawyer in the field, his firm often represents governments in these actions, and he's saying that the wording doesn't protect those governments as much as they think it does and providing a very simple and clear reason for his position. Whether or not he might be biased in a courtroom or tribunal does not affect the validity of his argument about the wording.
You apply for a very costly permit, and boom, that sector has just been banned by the State, because irrational fear.
Well, that "irrational fear" followed the incident at Fukushima. That was the worst nuclear disaster since Chernobyl, and although it's too early to know the true cost in human life, most estimates expect several thousand people to die early because of evacuation conditions, cancers caused by radiation exposure, and so on. Evidently some level of concern about the safety of nuclear reactors is justified.
The question is where to draw the line. If in fact the Vattenfall reactors in Germany were not vulnerable to any similar problems and they really were closed down suddenly despite posing no risk, it seems fair that they should receive some reasonable level of compensation. On the other hand, in a case like the cigarette firms we talked about before, imposing laws that benefit human health at the expense of the business because what the business does is inherently harmful and they know it, I have little sympathy if the business loses out even if it was a direct result of the government's actions.
One could reasonably debate the forum in which such determinations might be made. However, the idea that an entire case with potentially billions of pounds of taxpayers' money hanging in the balance could sensibly be decided by just three people, behind closed doors, without any means of appeal, seems absurd to me.
tl;dr arbitration tribunals ain't saints, but they seem much more sane, egalitarian and fair, than a host country's high court (which are usually ideologically biased either traditionally or after the current regime stuffs it full of its trustees)
I see little evidence of that here in the UK. The British government can and does lose big court cases all the time, and our judiciary is fiercely defensive of its independence from the government of the day. If a foreign investor isn't willing to trust the legal system of a host nation to act reasonably, perhaps they should be investing elsewhere anyway, because there are plenty of other ways to lose huge amounts of money in that case without any hostility from the host government itself.
He's selling the line that it doesn't protect governments as if it were a bad thing. It protects the companies in those states against the other governments for example, which is a good thing.
More people die because of coal/oil/gas power plants than because of nuclear ones. So now, instead of inspecting their own plants, which they have the best position to do so, they're relying on who knows what form of power generation.
It's understandable that you feel that by submitting the UK to an unknown even higher court you take a risk, but a lot of people on the other hand feel that it's going to be a boon to restrict the actions (and especially future actions) of their State. And the documents are public (and there is a push to make video recordings and even live streaming of the discussions/arguments), and in English, much better than when a company has to deal with let's say the Hungarian courts.
And exactly, because a lot of investment is not making its way to such countries, why the whole treaty is negotiated.
It's understandable that you feel that by submitting the UK to an unknown even higher court you take a risk, but a lot of people on the other hand feel that it's going to be a boon to restrict the actions (and especially future actions) of their State.
The European Commission conducted possibly the largest public consultation in history and found almost unanimous opposition either to ISDS or to TTIP in its entirety, except among some organisations representing businesses, and even there the response was mixed. So who are the "alot of people" you're talking about here? They don't appear to be ordinary EU citizens, nor lawyers, trade unions, academics...
It might have been the largest consultation, though I haven't heard of it.
There are millions of people in the EU currently quite grateful for the fact that their country is dependent on the EU, so their government can't dismantle their democracy at light-speed. Look at the situation with the populist right-wing governments in Poland and Hungary.
After all, the scope definition clause was a futile attempt from the beginning, since any law can be dressed up as environmental or "deemed appropriate" by the State. I don't really trust lawmakers on this, (nor corporations not to abuse these treaties as yet another venue to argue their bullshit or righteous grievance), let's a 3rd party decide this.
Because in case of Germany vs Vattenfall, when Germany was phasing out nuclear power, they should have calculated with the costs of this. You apply for a very costly permit, and boom, that sector has just been banned by the State, because irrational fear.
The same goes for the MFN (most favorable nation) clause. A state shouldn't pick and choose how it treats foreign companies as long as they act according to its laws, so it should place the same economic incentives and burdens on them.
Strange, for Mr Kahale or for the Guardian to not mention in November that the Award was Annuled in October in the Occidental vs Ecuador case.
Again, the concept is sane. Why require a fixed courtroom, when the important point is objectivity, and that parties select judges they trust who then in turn select the chair of the tribunal, so someone both parties' experts trust.
They usually do rely on (that is cite in similar cases, and usually similar cases reach similar outcomes) precedent, but since this is not a "common law" but a "civil law" (codified law) system, precedents are not binding. And there is a process for appeal, as seen in the Ecuador case. And yes, judges judge based on their opinion (interpretation) of the law. News at 11 :|
> The arbitrators can also be severely conflicted, says Kahale, because they may act as a judge one day and as a lawyer for a party the next.
Then don't pick them as your selected champion/judge. Duh. That's how Kahale is making his money, he runs a law firm representing countires. So they are usually on the States' side, maybe even sometimes lending a lawyer as a judge for a country.
> .. nor are they required to act like courts
Umm, they do? The treaty specifies the details, but most arbitration providers have very specific rules of procedure, just like courts.
tl;dr arbitration tribunals ain't saints, but they seem much more sane, egalitarian and fair, than a host country's high court (which are usually ideologically biased either traditionally or after the current regime stuffs it full of its trustees)