Investment treaties must be inclusive, sustainable and fair. That means that they must not put the interests of companies before those of people and their living environment.
International investment flows are currently regulated by some 3,000 bilateral investment treaties (BITs) and other international investment (IIAs). These agreements and treaties were originally set up to promote foreign investment, but very little has come of their promised beneficial effects. The time has come to radically change the international system of investment treaties. It is not only clear that investment treaties do not promote foreign investment, but also that in many cases they seriously harm the interests of developing countries.
Far-reaching rights for investors
The treaties grant foreign investors far-reaching rights and are increasingly used to exert pressure on governments not to take measures that are not in the investors’ interests. The Investor-to-State-Dispute-Settlement (ISDS) system allows businesses or investors to lodge charges against states beyond the jurisdiction of international courts. ISDS tribunals are not subject to the laws of countries that are charged and only work in one direction: only businesses may submit complaints, without having to do anything to defend themselves.
Dispute settlement beyond the reach of international courts
Through ISDS, foreign investors can oppose a wide range of national government policies and measures, including social and environmental rules. The rulings of an ISDS tribunal are definitive, binding and internationally enforceable. A large proportion (around 60%) of all ISDS cases are brought by companies against poorer countries, and the number of complaints has risen sharply in the past 10-20 years. In the past five years, one new ISDS case has been submitted per week. At the end of 2017, UNCTAD reported that successful complainants received an average of $522 million in compensation. Countries will often decide not to introduce a certain measure rather than face such high penalties, with all the consequences that will have for its people.
Many ISDS claims from the Netherlands
ISDS claims have already caused considerably harm in many developing countries. The second highest number of ISDS procedures are initiated from the Netherlands, after the US. That is partly because of the almost 100 BITs that the Netherlands has concluded, including with developing countries. There are also many ‘letter-box’ companies registered in the Netherlands, which can use the Dutch BITs to lodge complaints against countries in which they invest. The increasingly negative effects of ISDS in investment treaties is one of the main reasons why more and more developing countries want to terminate their investment treaties with the Netherlands.
Both ENDS is working to reform and terminate BITs
Both ENDS has long been drawing attention to the negative consequences of investment treaties on developing countries and is particularly concerned about the ISDS mechanisms in the current treaties. To make investment policies fair and sustainable and to ensure that they do not harm people and the environment, the ISDS mechanism included in all these treaties must be removed as soon as possible.
Dutch model BIT
In 2018, the Netherlands is revising the model text of its BITs. As the text will serve as an example for many other European countries, it is important that it is as inclusive and sustainable as possible. Together with Dutch and foreign partners, Both ENDS is providing input for the new text, naturally in the hope that its recommendations are taken up. We are also working with our partners to raise awareness of the consequences of investment treaties and ISDS, with the aim of exerting public pressure on the decision-making process relating to the model text.
Outside the Netherlands, we are also making our concerns and criticisms clear in other institutions, like UNCTAD and the European Parliament. We are supporting local groups in Southern countries in their efforts to terminate existing treaties, so that new investment policies can be developed that put people and the environment first and ensure that investments make a positive contribution to sustainable development.
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It sounds so logical: patents and other intellectual property rights protect investments in innovations, allowing more innovations to be made from which the whole world can benefit. Such as new medicines or drought-resistant crops. But in practice, these property rights often have the opposite effect, hindering access to innovations for those who need them the most.
Indigenous communities in Paraguay saw their attempts to regain their ancestral lands thwarted by German investors. In Indonesia, US-based mining companies succeeded to roll back new laws that were meant to boost the country’s economic development and protect its forests. This is the level of impact that investment treaties can have on social, environmental and economic development and rights. Why? Because of the ‘Investor-to-State Dispute Settlement’ clauses that are included in many such treaties.
International trade agreements often have far-reaching consequences not only for the economy of a country, but also for people and the environment. It is primarily the most vulnerable groups who suffer most from these agreements.
Together with civil society organisations from all over the world, the Fair Green and Global (FGG) Alliance aims for socially just, inclusive and environmentally sustainable societies in the Netherlands and the Global South.
Press release / 30 June 2022
89 NGOs and farmers' organisations from Indonesia, the EU and around the world sent open letters to the EU Commission and the Indonesian government today, calling on them to refrain from any clause that restrict farmers' rights in a future free trade agreement.
News / 9 June 2022
This week, Geneva will be the epicenter of world trade, as trade ministers and other representatives from around the world gather for the World Trade Organization (WTO) ministerial conference. Liesje Schreinemacher, the Dutch Minister of Foreign Trade and Development Cooperation, is present with a delegation. Our colleague Burghard Ilge is joining as an official member of the delegation, to represent civil society organisations. Colleague Fernando Hernandez will also travel to Geneva, to follow and try to influence the negotiations from outside the conference room together with other civil society organisations from around the world.
News / 25 April 2022
The European Union (EU) continues to demand that countries of the South introduce plant variety protection rights according to UPOV 91 in free trade agreements. This is happening in the ongoing negotiations of the EU with Indonesia, trying to take away Indonesia's flexibility to implement a law that suits its own needs and priorities. We therefore call to sign our letters on this subject to the European Commission and the Indonesian government.
Publication / 12 April 2022
Event / 22 February 2022, 16:00 - 17:30
What is the EU-Mercosur association treaty and why is it controversial? What could be the implications of the treaty for people and their livelihoods both in EU and Mercosur countries? For more information about these and other issues, see our new publication and join our interactive webinar next week!
Blog / 18 February 2022
Minister Liesje Schreinemacher for Foreign Trade and Development Cooperation recently made her first working visit, to Kenya and Uganda. With this visit, the minister made a flying start in honouring the pledge in the new government's coalition agreement to formulate a 'targeted Dutch Africa strategy'. Such a strategy is desperately needed as, too often, our foreign trade is conducted at the expense of people and the environment, including in countries in Africa. The new strategy presents a perfect opportunity to ensure that the 'trade and aid' agendas are closely aligned.
Blog / 10 December 2021
Pharmaceuticals hold on to their patents and (our) governments do not remove the barriers to free production that were raised under international trade agreements years ago.
Event / 7 December 2021, 14:00 - 15:15
The European Union's (EU) foreign trade policy has many implications for the sustainability of food systems in developing countries, heavily impacting farmers, breeders, and citizens. The unhidden promotion by the EU of strong intellectual property rights on plants affects food systems from its very basis, i.e., the seeds that are available for farmers to grow. Amongst these intellectual property rights, the main instrument that is advocated by European authorities is the 1991 Act of the UPOV Convention, which provides exclusive rights to breeders over the propagating material of new plant varieties, while diminishing the rights of others to use the material for further breeding and hampering with the rights of farmers to freely save, use, exchange and sell their seeds.
Publication / 29 November 2021
Press release / 25 October 2021
The EU-Mercosur trade agreement leads to environmental destruction, violation of the land rights of farmers and indigenous people and the loss of industrial jobs in the Mercosur countries. It also creates unfair competition for European farmers. The Handel Anders! coalition is calling for an alternative agreement to improve the political cooperation between the EU and the Mercosur countries and is making proposals for just and sustainable international trade rules. That is the core message of new publication presented today in the Nieuwspoort in The Hague.
Blog / 16 February 2021
The Netherlands can contribute much to making agriculture sustainable – nationally and internationally
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Publication / 31 December 2020
Publication / 12 November 2020
Press release / 29 June 2020
Germany must use its influence as president of the EU in the second half of this year to ensure that the controversial EU-Mercosur free trade agreement is not signed. This is the message in a letter presented to German chancellor Angela Merkel today by 265 civil society and environmental organisations from the EU and Mercosur countries. The deal between the EU and Argentina, Brazil, Uruguay and Paraguay will stimulate destruction of the natural environment and the violation of human rights in vulnerable areas in South America. The agreement will also give European farmers an unfair competitive advantage. Dutch signatories to the letter include Greenpeace and Both ENDS and various organisations united in the Handel Anders! coalition.
Blog / 14 April 2020
The World Trade Organization (WTO) is often seen as an institution in crisis, powerless and no longer relevant, and especially after US president Donald Trump decided in 2019 to pull the plug on one of the WTO’s most important bodies (the one dealing with trade disputes). Now, more than 150 civil society organisations, networks and interest groups from around the world have signed an urgent letter to WTO Director General Roberto Azevedo, because they are seriously concerned about the state of affairs within the organization.
News / 28 January 2020
Earlier this month, the Energy Charter Treaty (ECT) has decided to halt the geographic expansion to new member states, pending the finalization of the ongoing modernization process within the ECT. Both ENDS and our partner SEATINI, who amongst other things have been calling for this stop, welcome this decision.