Clive Palmer’s multibillion-dollar claims make a mockery of a tribunal that allows foreign investors to challenge court decisions | Patricia Ranald

DDespite the self -proclaimed patriotism of the Australian billionaire Clive Palmer by the Patriots trumpet party, he recorded his mining company, Zeph Investments, in Singapore and claimed to be a Singaporean investor. He then used the rights of foreign investors in two trade agreements with Singapore to continue the Australian government for a total of around $ 420 billion in four separate cases before an international investment court.

Palmer’s first complaint was $ 300 billion after losing an appeal from the High Court against a decision by the Government of Western Australia to refuse an iron ore extraction permit. The last three complaints for a total of $ 120 billion are due to the fact that a Queensland court refused its coal extraction license and a license for a coal -fired power plant for environmental reasons, including an increase in carbon emissions.

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The court has now rejected Palmer’s claim to be a Singaporean investor in the first WA iron ore case and ordered him to pay the legal costs of the Australian government of $ 13.6 million. The complete decision has not yet been published and it is not clear if his other complaints take place.

Palmer added to uncertainty by displaying on social networks that his legal team would dispute the decision of the court to the Federal Supreme Court of Switzerland as one of the seats of the International Tribunal process. The Swiss court is not an appeal mechanism for the court and cannot consider the general benefits of the case. Meanwhile, his three other coal-related cases can take place.

Palmer cases use a set of rights little known for foreign investors in trade agreements, called settlement of investor disputes. ISDS allows foreign investors (but not local) to claim compensation for changes in law or policy if they can convince an international court that change will reduce their expected future profits, even if the change is in the public interest. ISDS initially developed in the post-colonial period after the Second World War to compensate international investors for direct expropriation or the taking of goods by governments.

However, over the past 60 years, foreign investors have developed to include “indirect” expropriation and “legitimate expectations”, which do not exist in national legal systems. Investors can say that they were not adequately consulted about change or did not expect it when they made the investment. This has a frightening effect on democratically decided public interest policy. ISDS has been excluded from global organization agreements and is only found in certain regional and bilateral agreements, but investors can reorganize the locations of their investments to maximize complaints as Palmer did.

Palmer’s complaints expose the absurdity of ISDs, which allows investors to make complaints of several billion dollars against court decisions, legislation or changes in policy. The ISDS does not have the guarantees of national legal systems. There are no independent judges, because the members of the court can continue to practice defenders, and there are no precedents or calls, so decisions lack consistency. These special corporate rights are a threat to democratic rights to regulate in the public interest, in particular for climate change.

The last three Palmer cases join a growing world list of ISDS of fossil fuel companies against government decisions to reduce carbon emissions. A recent United Nations report concluded that ISDS is a “major obstacle” to government action on climate change. Many governments are now withdrawing from the provisions of the ISDS. The European Union and the United Kingdom have left the Treaty of the Energy Charter because fossil fuel investors use its ISDS provisions to pursue governments to eliminate fossil fuels.

The Policy of the Labor Government excludes the ISDs from future trade and commitments to examine it in 25 existing bilateral and regional agreements. This process takes place very slowly with the exams of three bilateral agreements. This review must be accelerated to avoid more cases like Palmer.

The workforce should also use its conference proposed for the accommodation of the United Nations Conference on Climate Change in 2026 to expose the threat of ISD to climate action and to support the coordinated multilateral withdrawal proposals of the ISDS provisions in the trade agreements.

Dr. Patricia Ranald is the head of the Australian Fair Trade and Investment Network and a research partner at the School of Social and Political Sciences at the University of Sydney University