—As of 2017, the average amount awarded in an ISDS case was $504 million Recently, however, there have been some exorbitant outliers, like a 2019 case in which Pakistan was ordered to pay $5.9 billion to the Australian Tethyan Copper Company for lost future profits after the country denied its lease. (The company had only invested about $150 million in the project to date.) The decision, which came down just one week after the International Monetary Fund approved a loan of almost exactly the $6 billion Pakistan was about to lose, represented the equivalent of 40 percent of the country’s cash reserves in foreign currency.— —“The system is unbalanced toward investors,” said Lea Di Salvatore, a legal researcher at the Columbia Center on Sustainable Investment, affiliated with Columbia University. Di Salvatore recently analyzed 29 of Mozambique's gas, coal, and oil projects and found the majority are protected by ISDS clauses. “Are we really expecting Mozambique to take action against TotalEnergies or ExxonMobil, who have all the political and economic power?” Tienhaara added that many other African countries are in a similarly precarious position, forced to choose between climate action and expensive payouts.—
ISDS clauses are just one example of how neocolonial theft is protecting by international legislation. For poor countries without a lot of economic clout and limited capacity in terms of a technically educated and experienced workforce have become dependent on inviting multinational corporations to come in and harvest their resources, often having to settle for agreements that have only limited benefit to the country either due to corruption or due to the leverage of corporations to get a good deal or take their business elsewhere, i.e. any revenue is better than no revenue.
However, despite capitalism being supposedly about risk, postcolonial legislation is heavily biased towards investors corporations. An ISDS clause implies that if for any reason the country believes that they are getting a raw deal from the corporation and no longer wants their presence around, the corporation can sue not only for the money that they have already invested, but for the entirety of the revenues that they believe that they would have got had they been able to continue. Therefore, poor nations are required to take on all of the risk and corporations none. And what happens if there are egregious labour or environmental violations by the same companies? Legislation protects them from having to react in any meaningful way. Take the example of Glencore in the DRC: https://www.bbc.com/news/business-63858295
They have been ordered to pay a measly $180 million to address ELEVEN years of corruption over deals in the DRC. As for everything else, the law protects them. "You can't prove anything." https://icar.ngo/accountable-for-corruption-but-not-for-human-rights-abuse-the-case-of-glencore/
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