Policies to address climate warming and biodiversity loss are meeting many forms of resistance from the fossil fuel and mining industries, says the Transnational Institute (TNI) in Amsterdam. One increasingly being used is the Investment-State Dispute Settlement (ISDS) provisions in international free trade agreements under the World Trade Organisation (WTO) and in international loan agreements under the World Bank (WB)¹. These allow big corporate polluters to sue Governments for "unequal treatment" or for regulation that impacts on their current or future earnings. The cases are ruled on by WTO-or WB-appointed tribunals behind closed doors, out of the public eye.

Global ISDS Tracker

To put a spotlight on these exploitative global investment practices, TNI and its partner organisations have launched a Global ISDS Tracker at Global ISDS Tracker. This Website is pretty clunky at present. TNI recommends viewing it on a desktop device. Of my three desktop browsers, Microsoft Edge worked best.

In cases concluded so far, TNI reports, $US113.87 billion of public money has been awarded to investors. Overall, investors have attempted to claim $US856.74 billion from Governments through ISDSs, with a sharp increase in billion-dollar cases. 129 claims are seeking $US1 billion or more.

ISDS claims have been used to challenge Governments on important environmental regulations, including water pollution controls, fracking bans and regulations on mining or oil and gas exploration. In particular, corporations in the fossil fuel, mining and the electricity sectors have sued Governments using ISDS. There have been 254 cases against environmental protection policies, claiming $US299.25 billion, of which $US64.56 billion has been awarded to investors so far.

There have been 261 fossil fuel cases filed, claiming $US353.72 billion, in which $US80.21 billion of public money has been won. For example, TransCanada sued the US for $US15 billion for loss of profits when it declined the permit for a pipeline carrying high-polluting tar sands oil to the US coast. In all, investors have attempted to claim $US856.74 billion from states through ISDS, of which a staggering $US113.87 billion so far has been awarded to investors, reports TNI.

Proportion Of ISDS Claims By Type Of Regulation

Trying To Bankrupt Governments

New Zealand was, as usual, off the edge of the map, but Australia is shown with four claims for a total of $US47.26 billion, three of which are still pending. Thank God, the Australian government won against tobacco giant Phillip Morris, because that would have affected us too under a joint food marketing policy. Two of the four cases, "Zeph vs Australia" filed in 2023 for $US20 billion under the Singapore Australia Free Trade Agreement (FTA) and for $US27 billion under the Association of South East Asian Nations (ASEAN)-Australia-New Zealand Free Trade Agreement (AANZFTA), relate to "mining and quarrying".

Singapore Zeph Investments is a company recently created "for tax and business purposes" by Australian mining billionaire Clive Palmer as part of serial litigation against the West Australian (WA) and Federal governments to claim $A300 billion in financial losses and damages. This is because licensing was declined for Minerology's proposed Balmoral South iron ore mine in the Pilbara, WA², a remote region known for its Aboriginal people, ancient landscapes and vast mineral deposits.

New Zealand governments have not included ISDS clauses in recent free trade agreements, thanks to long running campaigns by a number of groups including CAFCA, dedicated individuals like Jane Kelsey, and many others. However, older current agreements like the Trans-Pacific Partnership Agreement/Comprehensive and Progressive Agreement for Trans-Pacific Partnership and the recently "upgraded" AANZFTA, still retain ISDS sections. We are part of a global push-back led by countries of "the South", but at least 3,000 active treaties still contain ISDS clauses, says TNI.

TNI identifies a pattern in these ISDS claims. Most frequently sued are middle-income countries with significant foreign investment, often at times of severe economic vulnerability. The suing investors originate in the Global North, predominantly in Europe - or at least their companies are registered there. No investor from a low-income country has ever initiated a treaty-based ISDS case. This pattern, says TNI, reflects ISDSs' origins in the decolonisation period after WW2. Today they are a safeguard against financial decolonisation. A rising number of ISDS cases challenge public measures crucial for achieving a just energy transition.

Interesting Work

The Transnational Institute does interesting work. It was founded in 1974 by Susan George, a French-US political and social scientist and longstanding critic of the International Monetary Fund and World Bank. I learned a lot from her early book "How The Other Half Dies" (1977) and a 1990s Atlantic article on exactly how Rightwing think tanks operate to influence policy.

In 2024 TNI's work included: campaigning for the European Union's (EU) withdrawal from the Energy Charter Treaty and ISDS mechanisms; a "Reclaiming Energy" report with systemic solutions to the climate crisis; challenges related to mining and the energy transition; the climate consequences of militarism and the North Atlantic Treaty Organisation's $US1.34 trillion expenditure; indigenous rights and drug controls; and a Web series on Palestine liberation and EU complicity in Israel's genocide. Their Website is worth keeping an eye on.

1. See C. Provost, M. Kennard, "Silent Coup: How Corporations Overthrew Democracy", 2023 for an account of the World Bank's ISDS process.
2. Palmer vs Australia arbitration, The Nightly 17/9/24; "Clive Palmer Sues WA Government", ABC News, 11/8/23

Watchdog - 168 April 2025