ISDS was originally devised as a forum in which to resolve conflicts between countries and the foreign companies that do business within their borders. But the system puts countries at a striking disadvantage.
Only companies can bring suit. A country can only defend itself; it cannot sue a company. Arbitrators who decide the cases are often drawn from the ranks of the same highly paid corporate lawyers who argue ISDS cases. These arbitrators have broad authority to interpret the rules however they want, without regard to precedent and with almost no public oversight.
ISDS was once an obscure quirk of international law, but it has exploded in recent years, as elite law firms have devised new and creative ways to deploy it.
A Newcrest spokesman told reporters at the time that the company regretted that the shooting had occurred, but said, “It’s really in a sense nothing to do with Newcrest although it did happen on our site.”