IPS Blog

A Canadian mining company has cleared a major legal hurdle in their quest to exploit gold in El Salvador. In a celebratory press release, the firm, Pacific Rim, quoted lawyers from two Washington, DC law firms that are representing it in the case.

I guess having one legal powerhouse behind you just isn't enough when a major pot of gold is at stake. And so far, the investment appears to be paying off.

Pacific Rim is suing the government of El Salvador, demanding more than $77 million in compensation over the government's denial of a permit for a gold mining project. The government acted in response to strong public concerns that the project could contaminate a river that is the drinking water source for more than half the country.

The World Bank tribunal hearing the case, in a classic cowardly maneuver, put the word out late Friday that they planned to advance the case past the jurisdictional phase and start hearing arguments about the merits.

The Pacific Rim release quotes one "extremely pleased" lawyer from Weil, Gotshal & Manges and another from Crowell & Moring who called the ruling a "great development." The continuation of the case makes for more billable hours. According to the Wall Street Journal, lawyers at Weil, Gotshal & Manges make as much as $1,045 per hour. GDP per capita in El Salvador: $3,426.

What's remarkable is that Pacific Rim was able to hire these two law firms despite having no current income stream. They are essentially a corporate shell whose main asset is a lawsuit on which investors are willing to gamble. So they might lose a few million. But if the legal blackmail works and El Salvador allows the mining project to go ahead, the skyrocketing price of gold will produce a handsome return. Pacific Rim's release notes that "the Company has received encouraging feedback from potential sources of non-equity financing" to pay for the final phase of the lawsuit.

The response to the tribunal ruling in El Salvador is not so happy. A diverse coalition of faith, environmental, and community groups fought against Pacific Rim's mining plans because they don't want their children drinking the poisoned water that often gets left behind when foreign corporations come hunting for gold. Polls show the majority of the country is opposed to the project and two successive Presidents from different parties have been on their side.

So how did this domestic policy issue wind up before an international tribunal? Pacific Rim based its legal claim on alleged violations of two laws -- the U.S. trade agreement with Central America and a national Salvadoran investment law adopted in 1999. Both of these allow private foreign investors to bypass domestic courts and bring claims for compensation to international tribunals, such as the International Center for Settlement of Investment Disputes, housed at the World Bank.

The tribunal decided that the company did not have the right to sue under the trade agreement because they are a Canadian company and Canada is not a part of that treaty. But they will hear arguments about whether El Salvador breached its obligations under its domestic laws. It's not uncommon for cases like this to drag on for years, costing both sides millions of dollars in legal fees.

At a rally in front of Pacific Rim's Vancouver headquarters on June 2, Salvadoran activist Vidalina Morales asked for international solidarity in demanding that Pacific Rim drop the suit. She said the broad-based coalition that has come together around the issue, the National Roundtable on Metallic Mining, is now even more determined to obtain their ultimate goal, which is a ban on all mining in the country in the environmentally fragile country.

Unfortunately, the international regime for handling investment disputes doesn't pay much heed to the will of the people.

The Australian government doesn’t like it when global tobacco giants can sue them over public health laws. Corporate America finds this utterly unreasonable.

Thirty-one U.S. corporate lobby groups, from the Business Roundtable to the National Potato Council, sent a letter to President Obama this week, urging him to give Australia a good smackdown.

The Aussies’ offense? They have refused to accept trade rules that allow foreign investors to sue governments in international tribunals. Known as “investor-state” dispute settlement, these rules are in every U.S. trade agreement negotiated in the past 20 years – except the 2005 U.S.-Australia pact.

The Land Down Under stood up to U.S. corporate goliaths and their representatives in the U.S. Trade Representative’s office that time around. But the issue has come up all over again because the two countries are negotiating a new trade pact with seven others, called the Trans-Pacific Partnership. Australia has reiterated its opposition to these so-called “investor rights” in this broader trade deal.

If anything, the government’s opposition has hardened since its last go-round with U.S. trade negotiators. That’s because Australia is now the target of a high-profile investor-state case. Philip Morris, of the Marlboro empire, filed a suit against Australia last year, demanding compensation for that country’s plain packaging laws for cigarettes. Oops – while Australia had kept investor-state out of the U.S.-Australia trade deal, it allowed it in some other treaties. Philip Morris simply used a subsidiary in Hong Kong to file the claim under a bilateral treaty between that nation and Australia.

In a statement surprisingly lacking in the usual bureaucratic mumbo jumbo, the Australians made clear they weren’t about to expand their vulnerability to such lawsuits by accepting investor-state in the Trans-Pacific Partnership.

Corporate America’s hair has been on fire ever since. In the lobby group’s letter to Obama, they warn ominously that “Australia’s rejection of investor-state dispute settlement is not only thwarting the ability of the TPP negotiations to produce strong enforcement outcomes, it is also having a corrosive effect on the level of ambition and other key aspects of the TPP negotiations. If Australia were able to extract such a major exemption, other countries would press forward to seek their own major exemptions from core commitments.” 

Translation:  they fear if the United States goes all soft on the Australians on investor-state, the other countries will smell blood and demand similar rules that are pro-public interest, but corporate-unfriendly. Several of the other governments are already attempting to stand up to U.S. pharmaceutical company proposals that would reduce access to affordable medicines.

Another hot-button issue is capital controls, which include various measures designed to manage the flow of volatile “hot money” across borders. More than 100 economists from TPP countries signed a statement this week urging negotiators to allow governments to use this proven tool for preventing and mitigating financial crisis. Seventeen corporate lobby groups have argued in another letter that permitting U.S. trade partners to support financial stability through the use of capital controls would undermine everything from U.S. jobs to national security. Despite growing consensus among economists that such controls are legitimate policy tools, it is standard U.S. trade policy to prohibit their use and allow investor-state claims against governments that violate these restrictions.

Besides the United States and Australia, others involved in the Trans-Pacific talks are:  Brunei, Chile, Malaysia, Peru, New Zealand, Singapore, and Vietnam. Their 11^th round of negotiations is taking place in Melbourne, Australia from March 1 to 9. Let’s hope the Australian team that is taking on Corporate America can make the most of their home turf advantage.