Modern Pirates: How Arbitration Lawyers Help Corporations Seize National Assets and Limit State Autonomy

Pia Eberhardt and Cecilia Olivet

American Journal of Economics and Sociology, 2018, vol. 77, issue 2, 279-329

Abstract: Large†scale companies have worked for centuries with the governments of powerful nations to extract wealth from the rest of the world. Since the 1990s, one important method of continuing that legacy has been the use of secretive legal proceedings known as investor†state dispute settlements (ISDS). Through this innocuous†sounding practice, transnational corporations (TNCs) are able to blame foreign governments for their failure to extract as large a profit as they anticipated from their operations abroad. Asserting that changes in fiscal, environmental, or social policies have harmed them, TNCs have claimed that foreign governments should compensate them for the loss of potential revenues. ISDS tribunals have awarded billions of dollars as a result of such claims, mostly made under the auspices of bilateral investment treaties. Not only must governments spend millions of dollars defending themselves against assaults and tens or hundreds of millions if they lose their cases, but the ISDS system also has a chilling effect on the adoption of legislation designed to protect the health and safety of citizens. As a result of all the lawsuits in which corporations collect damages from governments under investment treaties, an array of groups in the legal industry have profited substantially: law firms representing corporate interests, arbitrators and other specialists in corporate arbitration, and litigation funders. The arbitration industry is, as a practical matter, the glue that holds the system together. The law firms involved in this industry do not wait passively for cases to arise. Instead, they actively pursue corporations to seek arbitration with governments, proselytize for the legitimacy of the current international investment regime, and block reforms that would limit arbitration opportunities. By creating methods of insulating TNCs from normal business risks and forcing host governments to bear the burden of liabilities, the arbitration system has effectively reinstituted a neo†colonial regime through the judicial system.

Date: 2018
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