OceanaGold vs El Salvador: Foreshadowing 'Trade' Under the TPP?
Date Written: 2015-06-23
Year Published: 2015
Resource Type: Article
Cx Number: CX17757
The Central American country of El Salvador could be forced to pay US$301 million to Canadian-Australian mining multinational OceanaGold as the two face off in a World Bank investor-state tribunal with proven tendency to favor corporate interests over arguments for protecting national sovereignty, the environment, and human rights.
The pending case in El Salvador gives a glimpse into what can likely be expected if controversial trade deals like the Trans Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) go through. With strong 'investor protections,' the TPP and TTIP will pave the way for many more instances of investor-state settlements that allow companies to sue governments for billions through highly secretive hearings and supra-national courts.
The number of such corporate lawsuits levelled against countries in the World Bank’s little-known International Center for the Settlement of Investment Disputes (ICSID) has skyrocketed over the past decade. According to Mining Watch, while just three cases where brought to the body in the year 2000, this climbed to 169 cases in 2013.
Trade agreements including NAFTA, DR-CAFTA, and hundreds of bilateral investment agreements include corporate-friendly provisions for investor-state settlement that allow companies, or investors, to sue governments if they claim their profits have been affected.
Like the ICSID tribunal hearing the OceanGold-El Salvador case, the flood of corporate lawsuits expected under TTP and TTIP mechanisms will similarly take place in grossly imbalanced 'arbitration tribunals,' often referred to by critics as kangaroo courts that have a vested interest in favoring corporations over national and international public interest.
Gus Van Harten, Associate Professor at York University’s Osgoode Hall Law School and investment law and treaty arbitration expert, told teleSUR that states are at a major disadvantage vis-a-vis corporations in these investor-state processes both in terms of the court bias and the limited range of potential outcomes of arbitration.
"States never win in the way that foreign investors win in these cases because foreign investors can get money from a country. The arbitrators will order a country to pay public money to the foreign investors if they win. States never get that from foreign investors," said Van Harten. "These treaties work one way, they give very powerful rights to foreign investors, without any actionable responsibilities."