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Often, say lawyers who are involved in the system, the mere threat of an ISDS claim is enough to achieve the same results.It’s like flashing a gun at a tense negotiation — better not to use it, but the guys across the table know it’s there.“I do a ton of work that involves threatened claims that never go to arbitration,” said Michael Nolan, a partner in the Washington, DC, office of Milbank, Tweed, Hadley & Mc Cloy. “It’s much better to get things done quietly.”“Every month I get a threat,” said Marie Talasova, a top lawyer for the Czech Republic’s Ministry of Finance.A single decision by a panel of three unaccountable, private lawyers, meeting in a conference room on some other continent, could gut national budgets and shake economies to the core.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.Of all the ways in which ISDS is used, the most deeply hidden are the threats, uttered in private meetings or ominous letters, that invoke those courts.The threats are so powerful they often eliminate the need to actually bring a lawsuit. An 18-month Buzz Feed News investigation into ISDS for the first time casts a bright light on the use of these threats.Based on reporting from Asia, Africa, Central America, and the US; interviews with more than 200 people; and inspection of tens of thousands of pages of documents, many of which have never before been made public, the series has already exposed how executives accused or convicted of crimes have turned to ISDS to help them get off the hook.

It is as striking for its power as for its secrecy, with its proceedings — and in many cases its decisions — kept from public view.To protect their way of life, the villagers planned to hike to the summit and refuse to leave.Newcrest Mining had won the right to explore this mineral-rich area during the 30-year rule of Suharto, Indonesia’s military dictator.So when the post-Suharto government enacted a forestry law that forbade open-pit mining in some areas, mining companies fought back, arguing that the law violated contracts they had signed under Suharto.In a statement to Buzz Feed News, Newcrest at first said it “is not aware of any threats/ISDS action made in relation to the enforcement of the 1999 forestry law.” But ​Syahrir AB, who at the time was a Newcrest executive in Indonesia, was unequivocal: “My company, Newcrest​,​" made that threat​, he said in an interview in Jakarta.​​He himself ​had ​delivered the company’s “message to the government” during a meeting with mining ministry officials, he recalled.




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