STOCK MARKET WATCH -- Thursday, 2 July 2015

[Demeter]

4. Chapter 4: Who guards the guardians? The conflicting interests of investment arbitrators

FROM Corporate Europe Observatory:Exposing the power of corporate lobbying in the EU

http://corporateeurope.org/trade/2012/11/chapter-4-who-guards-guardians-conflicting-interests-investment-arbitrators

When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all [...] Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament.

Juan Fernández-Armesto, arbitrator from Spain

Investment arbitrators are hidden from public view, barely mentioned in international media. This is perhaps not surprising, given that most people’s eyes glaze over at the mere mention of the words. Yet this small group of elite lawyers have been granted unprecedented power to judge cases that affect millions of people.

When companies sue governments in international arbitration tribunals, investment arbitrators have the power to divert taxpayers’ money to corporations. They can decide to penalise governments for ensuring people’s human rights to health, access to water or electricity as well as the right to a healthy environment. This field of law is certainly not short of technocratic detail and obtuse legalese, but it has a much broader relevance when we understand the role that this group of lawyers play in decisions that affect ordinary people’s lives.

Advocates claim an international arbitration system is needed because national courts are not sufficiently neutral. They say that only international arbitration courts can provide the neutral ground to deal with investors’ concerns. That means that investment arbitrators become the guardians of investment arbitration, and confidence in the system is based on their perceived independence. Yet investment arbitrators are hardly neutral guardians, who stand above the law. In fact, they are crucial actors in the arbitration industry, with a financial interest in the existence of investment arbitration. Arbitrators, to a far greater degree than judges, have a financial and professional stake in the system. They earn handsome rewards for their services. Unlike judges, there is no flat salary, no cap on financial remuneration.

Arbitrators are people to whom others entrust their wealth and welfare.

William W. Park, investment arbitrator

Arbitrators’ fees can range from US$375 to US$700 per hour depending on where the arbitration takes place. How much an arbitrator earns per case will depend on the case’s length and complexity, but for a US$100 million dispute, arbitrators could earn on average up to US$350,0005. It can be far more. The presiding arbitrator in the case between Chevron and Texaco v. Ecuador, received US$939,0006. In another case, the Tribunal president billed for 719 hours at an hourly rate of US$660 plus VAT...

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