Washington – A new report by MiningWatch Canada, the Institute for Policy Studies, and the Center for International Environmental Law, “Extraction Casino: Mining companies gambling with Latin American lives and sovereignty” exposes how transnational mining companies file multi-million dollar suits against Latin American countries to challenge key laws and decisions protecting indigenous peoples’ rights, the environment, and community health. The companies examined used arbitration particularly where communities are engaged in struggles against the harmful extraction industry.
Summary of Key Findings
Justifications to pursue arbitration:
(*) One-third of the cases examined dispute government measures related to Indigenous Rights and community consent. Nine of these were brought by companies without any operating mine at the time of arbitration.
(*) Over half of cases dispute government measures concerning the enforcement of environmental and health protections. Fifteen of these were brought by companies without any operating mine at the time of arbitration.
(*) Over one-third of cases dispute government measures related to resource management (including nationalization or taxation). Five of these were brought by companies without any operating mine at the time of arbitration.
Investor protection rules most frequently invoked:
(*) Indirect Expropriation was invoked in over half of the cases. This is especially egregious since it relates to so-called expropriation of anticipated future lost profits, rather than the physical seizure of property or investments.
(*) Fair and Equitable Treatment/Minimum Standard of Treatment was invoked in over half of the cases. This concept is highly vague and subjective, and arbitrators have interpreted it in wildly different ways without regard for diverse histories, cultures, and value systems.
(*) Full Protection and Security was invoked in about one third of the cases. This concept imposes a duty on governments to do everything in their power to protect foreign investments from harm whether from state or non-state actors, and despite harm to people or the environment from such investments.
The extractive sector takes greatest advantage of ISDS with oil, gas, and mining companies having brought 24% of known claims. The geographic distribution of cases is concentrated in Latin America, with Central and South American governments facing 29% of known claims.
Find the full report and brief executive summary at https://miningwatch.ca/sites/default/files/isds_report_final_.pdf