Advertisement
If you have a new account but are having problems posting or verifying your account, please email us on [email protected] for help. Thanks :)
Private profiles - please note that profiles marked as private will soon be public. This will facilitate moderation so mods can view users' warning histories. All of your posts across the site will appear on your profile page (including PI, RI). Groups posts will remain private except to users who have access to the same Groups as you. Thread here
Some important site news, please read here. Thanks!

German energy company sues Netherlands for €1.4bn over coal ban plan

Comments

  • Moderators, Computer Games Moderators, Recreation & Hobbies Moderators Posts: 9,298 Mod ✭✭✭✭ CatInABox
    Moderator




    Pretty sure that this just scuppered any chance of Ireland ratifying CETA as well. Absolutely mental, wouldn't be surprised by a massive backlash, both public and legal, against these companies.



  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    It is the insidious threat of high ticket legal actions (with or without legal likelihood of success) that could influence public policy to the detriment of the population.

    CETA contains the possibility of actions against the State for compensation should State laws cause lose of profits. To prevent such claims, the State might avoid actions that are needed to the loss of such actions. For example, plain packages for cigarettes are opposed by the tobacco industry and given the opportunity would sue for loss of profits on reduced sales. The fact that plain packages is to reduce sales of a product that causes deaths and severe health problems for smokers.

    Using the legal process to combat public policy can be an abuse of the legal system.



  • Registered Users Posts: 11,897 ✭✭✭✭ josip
    Registered User


    "The facts that emerge from the article are that this company paid money to the government for a license 2 years ago, the government unilaterally cancelled the rights associated with the license but didn't offer any compensation for the money paid. Sounds like a reasonable basis for suing the government to me."

    That is a reasonable basis, however it's not the basis for them (Rockhopper) suing according to the article.

    They are suing for loss of expected revenues ($275m), which is an order of magnitude more than the $29m they have spent on the project to date.



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    The Philips-Morris Australia case is always held up as a boogieman when conversation turns to corporations suing governments but Phillips-Morris not only lost the case, $50m costs were awarded against them. The courts aren't that divorced from reality that such a case would succeed.

    The anti-CETA reaction is also overblown, in my opinion. The offending treaty provision is there to prevent the abuse of "foreign companies" by insisting that commercial rules and laws are non-discriminatory. The idea is prevent the sort of stuff that happens in places like China - where for example, the government reserves the right to appoint board members for "foreign owned" companies but not for local ones or imposes lower minimum wage or work standards standards on Chinese companies as a sort of subsidy. CETA's dispute settlement procedure is a mechanism for companies to complain that they're being treated in a discriminatory manner compared to local competitors. Clearly since such a complaint will be about a local law, to which local courts are bound, a third party arbitration process is needed. Nearly all treaties which allow cross-border investment have clauses like this.

    And dispute settlement decisions under CETA don't override national law. Most treaties have such provisions and the loss of a case generally just leads to years of haggling between the countries affected. The Boeing, Airbus WTO spat is typical - it's just commercial mud-wrestling that doesn't impact individuals' rights.



  • Advertisement
  • Registered Users Posts: 20,638 ✭✭✭✭ Podge_irl
    Registered User


    I think its reasonable to argue damages (the opportunity cost of not going elsewhere that didn't suddenly change policy) though pushing for full expected profit seems ridiculous. But I assume they won't get anything close to that in reality.

    I would agree there is nothing inherently wrong or evil this - particularly given the cases have not even been decided upon. The cases, so far as I can tell from a first look, are not against the policies per se. They are because they impact previous agreements entered into under a different legal framework.



  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    There are no details as to how the CETA treaty would work, only that the case is subject to supra-national arbitration, which would not allow proper oversight by our national court system.



  • Registered Users Posts: 20,638 ✭✭✭✭ Podge_irl
    Registered User


    We are already subject to a supra-national legal system



  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    Yes, we are subject to several supra-national legal systems. These have all been agreed to following a referendum to allow them. CETA has yet to formulate those supra-legal structures that allows corporations to sue for loss of profits or opportunities for profits. We are not being offered a referendum to approve those structures. In fact, those structures have yet to be designed, and the devil is in the detail. We would be giving a blank cheque to those opportunist corporations who see free money at our expense.

    We cannot allow foreign corporations to take Ireland to a court to gain unspecified amounts to compensate from supposed loss of profits or opportunities for profits as a result of public policies adopted by a duly elected Gov.

    This aspect of CETA should be opposed, while accepting those elements that have already come into force.



  • Registered Users Posts: 2,388 ✭✭✭ Nermal
    Registered User


    Climate activists and their fellow-travellers in the judiciary started the weaponisation of the courts, when they failed at the ballot box.

    Pleasing to see the shoe on the other foot now.



  • Advertisement
  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    I do not see the benefit for anyone in Ireland to have a court sitting outside Ireland being able to subject the State to compensation to a non-Irish (or Irish) corporation for loss of profits as a result of legal measures enacted by the Irish Government. Particularly if the Irish Gov or Irish courts have no say in the matter.

    Putting the shoe on the other foot only gets you to walk funny.



  • Registered Users Posts: 20,638 ✭✭✭✭ Podge_irl
    Registered User


    They don't get to randomly sue for loss of profit. The govt sold exploration rights, then banned exploration.



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    "Yes, we are subject to several supra-national legal systems. These have all been agreed to following a referendum to allow them."

    You're not looking at this the right way. Ireland is a member of a huge number of supra-national/international bodies - all of which impose rules or conditions on members - as well as being party to countless bilateral treaties which also constrain the behaviour of the government. Only a tiny fraction of them required referendum.

    Joining an international body or entering an international treaty only requires a referendum if the rules of the organization or contents of the treaty are incompatible with the constitution. This very rarely happens because obviously Ireland will tend to join organisations and bodies with which it shares values. So in the vast majority of cases, the supra-national legal rules are compatible with our constitution and so no referendum is required. And actually in most cases, they are actually compatible with our laws and not even legislative changes (passed in the Dail in the usual way) are required.

    At the end of the day the Irish legal system has primacy in Ireland. And the Irish legal system and constitution are controlled by the Irish electorate and no international treaty or membership changes this. There's nothing stopping the electorate changing laws or the constitution regardless of international obligations. For example, Ireland could re-introduce capital punishment, which would be incompatible with our membership of the Council of Europe. Just because we've signed a membership treaty, doesn't mean that the Council of Europe has the power step in and nullify an Irish referendum or government legislation which is incompatible with the treaty. They could kick Ireland out of the club though.

    The anti-CETA and general anti-trade activists would have you believe that international commercial dispute settlement agreements somehow give big business immunity from local laws when this is simply not the case. As usual, the reality is far less lurid and outrageous than presented by such activists. It's actually all very mundane. Like I said, look at the Boeing vs Airbus WTO case to see how these things generally work.



  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    [Quote]

    The anti-CETA and general anti-trade activists would have you believe that international commercial dispute settlement agreements somehow give big business immunity from local laws when this is simply not the case. As usual, the reality is far less lurid and outrageous than presented by such activists. It's actually all very mundane. Like I said, look at the Boeing vs Airbus WTO case to see how these things generally work.

    /Quote]

    Dismissing those that consider the CETA provisions as anti-trade is insulting.

    The problem with provisions such as these are destabilising to a small country like Ireland. The big corporations with deep pockets can tie up Ireland in court cases forever, and the threat of such cases can delay needed provisions of public policy for years. There is a case going through the courts at the moment so we shall see what the result of that case is before year end. It will have to go to the SC.



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    "The problem with provisions such as these are destabilising to a small country like Ireland. The big corporations with deep pockets can tie up Ireland in court cases forever, and the threat of such cases can delay needed provisions of public policy for years."

    You could say that about allowing anyone to sue the state. It's a cornerstone of western liberal democracy that the state can be challenged through an independent judicial branch. A legislature makes laws; the state, as an entity, like everyone else, is accountable to the laws.

    You could argue the cervical check legal battle also "delayed needed provisions of public policy" but is that enough of a reason to not allow the affected access to the courts?

    And I don't see any better alternative. Screening people or companies before allowing them access to the courts, isn't a runner. You can't single out "big corporations" for special restrictions against suing the state but not have restrictions apply to "medium sized companies", SMEs or individuals. It couldn't work - either the freedom to sue the state is available to everyone or no-one.



  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    The legal process has not been defined, and appears as a non-national tribunal framework where Ireland does not even have a judge, let alone a court to hear the case. There is no detail on how such a tribunal would work.

    It is not so much the actions of the tribunal that matters, but the abuse of process undertaken by large corporations. Just look at how big tobacco hid the cancer causing nature of tobacco, despite being certain of it for over half a century, and took many legal cases against Gov and health authorities who tried to curtail their harmful products from being marketed. Now, big pharma are being sued for the outrageous marketing of addictive painkillers in USA states.

    Could Ireland withstand a concerted attempt by big corporations to pervert the public policies of this state by systematic abuse of this kind of legal action?

    We brought in a smoking ban against opposition for big tobacco. We brought in plain packages for cigarettes, against the opposition of big tobacco. We are trying to bring in minimum pricing for alcohol, but not yet. Could CETA give extra powers to big corporations? Climate change will cost big corporations lost profits, which currently they just have to accept. CETA gives them a legal opportunity to try and get redress, but through a tribunal outside the state.

    I do not think we should allow us to be subject to this.



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    I still don't understand your fear? Can you provide an example of big corporations using the dispute resolution clauses of bilateral or multilateral agreements to subvert public policy, so I could understand why you think CETA presents a threat? All the stuff you listed are examples of failures of corporations to override public health initiatives.



  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    Tobacco has been hiding from the scientific evidence of the dangers of smoking for the last 70 years and has fought every attempt to control them, including our plain packaging ones. They are still fighting public health measures all around the world.

    Pharma have also used the abuse of legal proceedings to curtail their activities - just look at the settlements being announced in the USA over the marketing of addictive painkillers after decades of legal action and many lives lost and ruined.

    Why donate another opportunity to these giant corporations to abuse the legal processes to prevent public health policies, or other public policies? I remember hearing a case in the USA where the Federal Gov were pursuing an anti-trust case against IBM and required certain documentation to be sent to them. IBM sent four truck loads of paper to them (missing out the very documents required). That type of action is a sign of the contempt to which they hold the judicial system.

    The inclusion of lost profits or lost opportunities for profits as a basis for compensation is ominous.



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    Yeah but none of that answers the question:

    "Can you provide an example of big corporations using the dispute resolution clauses of bilateral or multilateral agreements to subvert public policy, so I could understand why you think CETA presents a threat?"

    None of the cases you mentioned so far resulted in a corporation "winning" against a government - the opposite in fact. Phillip Morris were ordered to pay $40m in costs when they tried to block plain packaging in Australia - a judgement actually upheld by the WTO a few years later when a bunch of tobacco growing countries tried to use the WTO's trade dispute resolution mechanism. 3 major Pharma companies have gone bankrupt because of their despicable role in the opioid crisis and executives have been given prison sentences. This all seems reasonable to me and looks like a legal system doing what you'd want it to do?

    The IBM anecdote doesn't sound right - if you hide documents after being order to disclose them by a judge, then someone is going to jail.



  • Registered Users Posts: 3,097 ✭✭✭ JohnC.
    Registered User


    Canada banned the export of toxic PCB waste. SD Myers sued and won. Canada banned MMT gasoline additive on health grounds. Were sued and reversed the ban. Canada, again, lost a case over banning lawn pesticides containing a certain chemical. Ecuador cancelled a contract with Occidental after they breached it. The tribunal agreed that they breached it, yet still ruled it was unfair on the company.


    Even where ISDS cases are not successful, fighting these cases costs unnecessary taxpayer money and nudges governments against implementing public policies.


    If they're so great and harmless, why are an increasing number of countries withdrawing or refusing to participate in deals including them?



  • Advertisement
  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    That is the point - it can be just the threat of such legal actions that damages public policy. Add that the tribunals that decide these cases are not subject to Irish Domestic Law or even have Irish Judges involved, and we will be truly shafted.

    Now, what or where are the details of the procedures for these judgements?



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    "Canada banned the export of toxic PCB waste. SD Myers sued and won."

    So I looked into this first example you gave out of interest and what I've read about it confirms my suspicion that much of the anti-CETA dispute resolution reporting looks somewhat disingenuous by suppressing the actual detail of what happened. Without the detail indeed it looks awful - outrageous even.

    But when you read about what actually happened, well... meh.. Canadian authorities were lobbied by a Canadian PCB waste processing monopoly, and they suddenly changed the rules (not the export ban - which allowed transport of waste for treatment across the border with the US) capriciously and without explanation to prevent a US-owned operation from competing with them and using their facilities across the border for the treatment.

    By the way, SD Myers didn't even actually sue - they made a complaint against the Canadian government via NAFTA trade dispute tribunal because the officials had acted in a way that blatantly favoured a local Canadian company. This was after spending the best part of a year just trying to get a meeting with the Canadian authorities who had rescinded their license with only a vague explanation (and I understand they'd want to avoid a meeting - the change wasn't based on environmental or public health reasons - it was because of Canadian company lobbying). It was the Canadian government who afterwards tried to start a court case in Canada but it their case was thrown out by Canadian judges.

    This was in reality a battle between two PCB waste processors, not a battle between an evil corporation and the public interest.

    To be honest, while this case was mildly interesting, I'm not that interested in the subject that I want to spend an evening going through the rest of your examples to find out that the outrageous head-line summaries actually hid a far more reasonable sequence of events. It feels like a sort of "gish gallop" - perhaps pick ONE case which you think is the most egregious example and we could debate that?



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    "Add that the tribunals that decide these cases are not subject to Irish Domestic Law"

    You keep repeating this despite me pointing out and explaining why this is simply not true. Irish domestic law is supreme in Ireland - it's just that simple.

    No company can rock up with a positive judgement from a trade dispute tribunal and demand that it have precedent over Irish legislation or over Irish common law.



  • Moderators, Science, Health & Environment Moderators Posts: 17,448 Mod ✭✭✭✭ Sam Russell
    Moderator


    I am just going to leave it there.

    I am not a constitutional lawyer, or even a lawyer, and there is a case wending it way through the Irish courts. I will await the outcome.



  • Registered Users Posts: 917 ✭✭✭ gjim
    Registered User


    The High Court has ruled on a challenge against ratifying CETA - https://www.rte.ie/news/courts/2021/0916/1247115-ceta/

    The conclusion is along the lines of what I've been arguing:

    "However, Ms Justice Nuala Butler found CETA did not entail an unconstitutional transfer of the State’s sovereignty.

    She found it was an international agreement which did not have direct effect in Ireland and that tribunals established by CETA would not have jurisdiction to declare any provision of Irish law invalid.

    Justice Butler also found that it was constitutionally appropriate and permissible for the State to ratify the agreement without a referendum."



Advertisement