ABSTRACT
In the global neoliberal structure where States and Corporations sit Above Market and Democracy (SCAMD), powerful elites have installed domestic, supranational, and international devises aimed at protecting the neoliberal order from democracy. “Loopholes” such as governments’ ability to protect the environment through regulations, however, still exist, limiting the ability of climate-disrupting transnational corporations to enclose and grasp. Anxious to close off such loopholes, neoliberal elites resorted to building an international arbitration regime catering exclusively to the needs of transnationals, with the power to override national executive, legislative, and judicial decisions. This “Investor-State Dispute Settlement” (ISDS) mechanism is increasingly slipped in bilateral investment agreements as well as multilateral energy, trade and investment treaties. It not only removes market risks for reckless anti-climate investments, punishes life- and planet- saving legislations, but also deters governments from contemplating necessary mitigating measures for fear of being sued by foreign investors in ISDS tribunals. This chapter examines the central role that the European Union (EU), together with big oil companies, plays in nourishing and spreading the predatory arbitration system, which is extraordinarily effective in impeding and deterring meaningful climate mitigation.
