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	ISDS enables making more money from losses by Lyndal Rowlands, Jomo Kwame Sundaram International Development Economics Associates, agencies   Aug. 2020   Investor-state dispute settlement (ISDS) enables making more money from losses, by Jomo Kwame Sundaram for International Development Economics Associates.   With the Covid-19 contagion spreading internationally this year, governments have responded, often in desperation. Meanwhile, predatory international law firms are encouraging multimillion-dollar investor-state dispute settlement (ISDS) lawsuits citing Covid-19 containment, relief and recovery measures.   Most governments failed to introduce sufficient precautionary measures early enough to prevent Covid-19 contagions from spreading. And when they did act, they often believed they had little choice but to impose nationwide ‘stay in shelter’ lockdowns to enforce preventive physical distancing.   To enable businesses and households to survive the adverse effects of such lockdowns, governments have provided relief measures, for at least some of those believed to have been adversely affected, especially for businesses better able to lobby effectively.   Meanwhile, there are already thousands of mainly bilateral investment treaties as well as bilateral and plurilateral trade agreements worldwide, enabling foreign investors to sue governments before private arbitration tribunals to profit from their wide-ranging treaty rights.   Transnational corporations (TNCs) can claim staggering sums in damages for alleged investment losses, for either alleged expropriation, or more typically, indirect ‘damage’ caused by regulatory changes, in this case, Covid-19 government response measures.   As some such measures try to share the burden of the crisis, e.g., with asset owners and other contracting parties, the international law firm Shearman & Sterling advises financial firms, “While helping debtors, these measures would inevitably impact creditors by causing loss of income”, referring to debt relief and restructuring efforts among others.   Foreign registered real estate or property companies can also sue governments that protect lessees or tenants who cannot make their lease or rent payments as contractually scheduled after their operations are shut down or disrupted by emergency regulations imposed.   Pharmaceutical and medical supplies companies can also appeal to such arbitration tribunals to claim losses due to price controls and ‘violated’ intellectual property rights for Covid-19 tests, treatments, medical and protective equipment as well as vaccines.   Lucrative ISDS lawsuits   In recent months, international law firms have been encouraging ISDS lawsuits citing government measures to check contagion and mitigate their economic consequences, urging clients to invoke investment and trade agreements to claim for allegedly lost income or additional losses or costs due to new government policy measures.   Another firm Ropes & Gray advises: “Governments have responded to COVID-19 with a panoply of measures, including…limitations on business operations, and tax benefits. Notwithstanding their legitimacy, these measures can negatively impact businesses by reducing profitability, delaying operations or being excluded from government benefits…   For companies with foreign investments, investment agreements could be a powerful tool to recover or prevent loss resulting from COVID-19 related government actions.” [my italics]   Shearman & Sterling advises, “Some interventions will be protectionist—they will seek to support or benefit domestic enterprises (strategic or otherwise) but not foreign investors”, without mentioning their generally far lower tax contributions and generous investment incentives enjoyed.   Profiting from the pandemic   After advising clients to look out for discriminatory measures which could become the bases for such claims, law firm Sidley warns governments that proceedings can be very costly as “it is not only the actually invested amounts that can be considered recoverable damages, but also lost future profits”.   Such law firms remind their clientele that many of the more than thousand ISDS lawsuits filed worldwide have arisen during political or economic crises. Covid-19 pandemic response measures are now being widely studied as possible pretexts for another round of lawsuits.   These corporate lawsuits can impose massive fiscal burdens on governments. As Pia Eberhardt shows, legal costs average well over US$6 million per party, but can be much higher. Hence, such suits can drain government fiscal resources.   Although it becomes much more expensive if governments lose, they still have to cover their own legal expenses even if they do not lose. As of 2018, governments had been ordered to pay US$88 billion for settlements made public.   There is considerable scope for such cases given the still growing, broad range of government Covid-19 measures, e.g., foreign-owned water supply companies can sue governments for insisting that more public water supply sources be provided, or household water supplies remain uninterrupted, even if water bills are not settled, to enable more regular hand washing.   ISDS undemocratic, illegitimate   International investment law is generally independent of national legislatures and biased toward TNC interests. Investment agreements prescribe foreign investor rights and privileges very broadly, but their duties and obligations, usually rather minimally.   Sovereign national societies, parliaments and governments have considerable scope for discretion in addressing complex political issues involving diverse social and economic interests. Also, national courts generally do not award damages for lost future profits as these are considered completely conjectural.   But ISDS provides much more favourable treatment to powerful TNCs. Also, international arbitration tribunals ignore and undermine the legitimate scope for national courts, law-making and democratic government decision-making.   The typically transnational arbitration tribunals that interpret such law generally ignore recent legal developments, which take more account of the rights and responsibilities of various other stakeholders in national societies. Thus, arbitration awards tend to be much more lucrative, for both TNCs and their lawyers, than ordinary national court decisions.   A South Centre Southview urges considering various measures in response to the threat such as terminating or suspending investment treaties, withdrawing consent to arbitration, statutorily prohibiting recourse to arbitration and appealing to TNCs’ corporate moral responsibility   Already, there are growing appeals for an immediate moratorium on ISDS lawsuits and to end ISDS proceedings involving Covid-19 emergency measures, while some countries, e.g., India, South Africa and Indonesia, had scrapped some of their bilateral investment treaties even before the crisis.   The Southview opinion also chides the United Nations Commission on International Trade Law (UNCITRAL) for trifling with marginal reforms, instead of radically reconsidering the very illegitimacy of international investment arbitration itself.   As the world struggles to cope with an unprecedented ‘black swan’ public health threat, the prospect of a world recession taking the planet into depression is greater than ever in the last eight decades. The need to end ISDS provisions and lawsuits is more urgent than ever.   http://www.networkideas.org/news-analysis/2020/08/isds-enables-making-more-money-from-losses/ http://news.climate.columbia.edu/2021/07/14/biden-must-nix-treaty-provisions-that-allow-fossil-fuel-companies-to-sue-governments-directly/ http://www.lse.ac.uk/granthaminstitute/news/investor-state-dispute-settlement-as-a-new-avenue-for-climate-change-litigation/ http://www.lse.ac.uk/granthaminstitute/news/climate-change-litigation-cases-spreading-around-the-world/   * In June 2020 a global coalition of over 600 organisations from 90 countries called for an immediate end of all ISDS cases: http://bit.ly/3gQ4chh   Nov. 2020 (IPS)   Secretive mega-trade deal rules could harm Asia’s Covid-19 Recovery, by Lyndal Rowlands.   Fifteen countries will sign a mega-trade deal at the ASEAN conference this weekend imposing secretive restrictions on how governments help workers through the pandemic, trade union leaders and parliamentarians have warned.   The text of the Regional Comprehensive Economic Partnership (RCEP) agreement is so secretive that even elected representatives have not been allowed to see it, even though it will potentially lock future governments into rules that will limit their abilities to make policies required in times of crisis or to improve access to public services and worker’s rights.   Leaked documents have shown that the agreement limits the potential for governments to make policies, including policies to recover from the Covid-19 crisis said Risa Hontiveros a Senator from the Philippines. “This pandemic has shown us that we should never put the economy before our people,” she said at a press conference organised by Unions for Trade Justice on Thursday.   Elected officials across the region fear that the agreement has been kept secret because it heavily favours large multinational corporations who help draft trade rules, over the local small and medium businesses that are struggling most due to the pandemic.   “Even parliaments have no idea what the hell is being signed in the name of the people,” Charles Santiago a Member of Parliament from Malaysia said.   The secretive nature of the agreement is also unusual, given that the text was finalised 12 months ago, meaning that it includes no specific updates recognising the extraordinary challenges created byCovid-19 pandemic, said Andrew Dettmer the National President of the Australian Manufacturing Workers Union.   However, Covid-19 isn’t the only major omission from the agreement. Leaked documents have also shown that it does not mention climate change or make provisions for labour rights, including forced labour or child labour.   The 10 members of ASEAN – Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam – will sign the Regional Comprehensive Economic Partnership (RCEP) together with five additional countries Australia, China, Japan, New Zealand and South Korea on 15 November.   Notably, India, recently withdrew despite spending several years in RCEP negotiations, citing concerns it would not protect its own industries and workers, said Kate Lappin, Regional Secretary for Asia and Pacific, at Public Services International. Free trade agreements create a “race to the bottom” said Lappin, encouraging governments to compete to have the lowest possible wages and conditions.   Che Chariya, a Cambodian garment worker and union leader described the real-world consequences that this type of race to the bottom creates. Garment workers in Cambodia have been particularly hard hit by the suspension of major contracts from multinational firms due to Covid-19.   However, Chariyasaid that for many garment workers, including herself, the challenges pre-dated Covid-19. Chariyaworked in a garment factory for 18 years until it closed in 2018. She now works in a sweatshop for a piece rate, losing the factory’s minimum wage and social security benefits, despite still making clothes for the same companies. Since the pandemic, she says the cost of living has increased whilethe piece rate has gone down.   Instead of signing new rules that favour big business, and harm workers like Chariya, Lappin said that governments should instead work on agreements for the greater public good, such as India and South Africa’s proposal to have governments waive trade rules in the World Trade Organisation so that all countries will have access to a Covid-19 vaccine and other critical medical information, noting that restrictions on access to medicines were “a prime example of why we shouldn’t be signing trade agreements at the moment.”   Indeed, Santiago described how restrictions imposed by international agreements had already prevented some governments from rolling out mass testing: “even in a pandemic the people are being held hostage by big pharma,” he said. http://bit.ly/3kCkdJD   http://www.business-humanrights.org/en/latest-news/half-of-corporates-unable-to-prove-they-are-protecting-human-rights-report-reveals/ http://www.business-humanrights.org/en/from-us/briefings/just-recovery-in-peril-human-rights-defenders-face-increasing-risk-during-covid-19/ http://www.business-humanrights.org/en/big-issues/binding-treaty/ http://www.treatymovement.com/resources-2020 http://www.ituc-csi.org/global-unions-welcome-treaty-next-step http://www.forum-asia.org/?p=33330 http://bit.ly/3nDuHud http://www.actu.org.au/actu-media/media-releases/2020/secret-rcep-trade-deal-to-be-signed-without-oversight http://www.business-humanrights.org/en/latest-news/groups-fear-that-rcep-deal-of-asean-and-other-partners-will-intensify-land-grabs/ Visit the related web page
	Put gender equality at the heart of the post-COVID-19 economic recovery by Valeria Esquivel ILO Senior Employment Policies & Gender Officer   Aug. 2020   The pandemic is disproportionately affecting women workers. Governments should prioritize policies that offset the effects the COVID-19 crisis is having on their jobs.   I am a feminist economist. My job is to examine how the inequalities between women and men are part and parcel of the functioning of labour markets, and to assist our constituents in implementing what we call “gender-responsive” employment policies – policies that explicitly contribute to gender equality.   Prior to the onset of the COVID-19 crisis large numbers of women were excluded from the labour market. The pandemic has made things much worse.   It is disproportionately affecting women workers who are losing their jobs at a greater speed than men. More women than men work in sectors that have been hard hit by the economic fallout from the pandemic, such as tourism, hospitality and the garment sector. Large numbers of domestic workers, most of whom are women, are also at risk of losing their jobs. The vast majority of health workers are women, which raises the risk of them catching the virus.   Moreover, the fragility of their employment situation, coupled with reduced access to labour and social protection have meant that women have found they are particularly vulnerable to the pandemic, even in sectors which, until now, have experienced less disruption.   One of the ideas at the core of feminist economics is that the unpaid care work that takes place in households and families to support everyday life is a vital part of the economic system.   This type of work is primarily carried out by women and most of the time is not recognized as such. School closures and caring for those who become sick, has forced women lucky enough to remain in employment to cut down on paid working hours or to extend total working hours (paid and unpaid) to unsustainable levels.   Here are five ways to ensure that women’s job prospects are not damaged long-term by the COVID-19 crisis:   Prevent women from losing their jobs by implementing policies that keep them in work, as women have a harder time than men in getting back to paid work once crises have past. By compensating for wage losses caused by the temporary reduction in working hours or the suspension of work, these policies can help maintain women workers in their jobs, and safeguard their skills.   Help women find new jobs if they’ve lost them: Public Employment Services (PES), that connect jobseekers with employers, can help women find jobs in essential production and services. At the local level, they can speed up job placement in sectors that are recruiting amidst the pandemic.   Avoid cutting subsidies: Expenditure cuts in public services have a disproportionate effect on women and children. That’s why it’s so important to avoid cuts in health and education budgets, wages and pensions. Past crises have shown that when support for employment and social protection are at the core of stimulus packages, they help stabilize household incomes and lead to a speedier recovery.   Invest in care: Care services have the potential to generate decent jobs, particularly for women. This crisis has highlighted the often difficult and undervalued work of care workers, whose contribution has been, and remains, essential to overcoming the pandemic. Improving their working conditions will have a significant impact on many women workers, given the large numbers who work in the care sector.   Promote employment policies that focus on women: Governments need to pro-actively counterbalance the effects of the COVID-19 crisis on women. From a broader perspective, macroeconomic stimulus packages must continue to support and create jobs for women. Policies should focus on hard-hit sectors that employ large numbers of women, along with measures that help close women’s skill gaps and contribute to removing practical barriers to entry.   http://iloblog.org/2020/08/20/put-gender-equality-at-the-heart-of-the-post-covid-19-economic-recovery/ http://unworkinggroupwomenandgirls.org/reports/reimagining-the-world-of-work-so-it-is-equal-for-everyone/
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