George Monbiot got very hot under the collar recently about a provision in hte various trade treaties that are under negotiation at present. Arguing that the ability of an investor to take a matter to arbitration was a vile undermining of democracy:
They have good reason to ask. The commission insists that its Transatlantic Trade and Investment Partnership should include a toxic mechanism called investor-state dispute settlement. Where this has been forced into other trade agreements, it has allowed big corporations to sue governments before secretive arbitration panels composed of corporate lawyers, which bypass domestic courts and override the will of parliaments. This mechanism could threaten almost any means by which governments might seek to defend their citizens or protect the natural world. Already it is being used by mining companies to sue governments trying to keep them out of protected areas; by banks fighting financial regulation; by a nuclear company contesting Germany's decision to switch off atomic power.
And here's an example of what it is actually all about:
Freeport-McMoRan Copper & Gold Inc. (FCX) and Newmont Mining Corp. (NEM), the largest U.S. miners, said new Indonesian rules on metal export duties infringe on contracts they have with the government. Indonesia issued regulations on metal exports this month that curbed the shipping of unprocessed ore and placed duties on exports of copper concentrate, a semi-processed ore that’s shipped from mines to smelters. The rules have resulted in delays to obtain export permits, and Freeport plans to defer some production, according to the Phoenix-based company, the world’s biggest publicly traded copper producer. The duties on copper, which begin at 25 percent and will rise to 60 percent by mid-2016, took Freeport by surprise, Chief Executive Officer Richard Adkerson said yesterday on a conference call with analysts. Indonesia, where the company operates its biggest mine, the Grasberg copper and gold operation, accounted for 19 percent of its third-quarter revenue, according to data compiled by Bloomberg. Newmont’s Batu Hijau mine in the country contributed 6.8 percent of the miner’s total sales, the data show.
Indonesia has banned, in hte case of nickel, and heavily taxed, in the case of copper, the export of ores and or concentrates. They want the minerals to be processed within the country. Well, OK, I don't think that's sensible, you may or may not, but what is obvious is that this seriously changes the positions of those companies who have already invested billions into mines in the country. And that's what the right to go to arbitration is about.
If a government says, right, here's the terms upon which you can invest in our country then that's just fine. And it's also just fine if the government decides that it wants to change the law. However, if it does change the law it also has to compensate those who the law change affects. For example, Indonesia is entirely at liberty to nationalise those mines if it should wish to. But it does also have to pay market value when doing so. Similarly, the country is entirely within its rights to ban the export of concentrates. But it must compensate those who have invested on the understanding that concentrate exports would be allowed.
And the only purpose of arbitration is to make sure that the people deciding upon what the compensation should be are not controlled by the government that will have to be doing the compensating.
That's why these clauses exist in these treaties. Essentially, to make sure that governments keep their word.