Mr Kahale might be an expert, but that doesn't mean he is not biased toward his clients.
After all, the scope definition clause was a futile attempt from the beginning, since any law can be dressed up as environmental or "deemed appropriate" by the State. I don't really trust lawmakers on this, (nor corporations not to abuse these treaties as yet another venue to argue their bullshit or righteous grievance), let's a 3rd party decide this.
Because in case of Germany vs Vattenfall, when Germany was phasing out nuclear power, they should have calculated with the costs of this. You apply for a very costly permit, and boom, that sector has just been banned by the State, because irrational fear.
The same goes for the MFN (most favorable nation) clause. A state shouldn't pick and choose how it treats foreign companies as long as they act according to its laws, so it should place the same economic incentives and burdens on them.
Strange, for Mr Kahale or for the Guardian to not mention in November that the Award was Annuled in October in the Occidental vs Ecuador case.
Again, the concept is sane. Why require a fixed courtroom, when the important point is objectivity, and that parties select judges they trust who then in turn select the chair of the tribunal, so someone both parties' experts trust.
They usually do rely on (that is cite in similar cases, and usually similar cases reach similar outcomes) precedent, but since this is not a "common law" but a "civil law" (codified law) system, precedents are not binding. And there is a process for appeal, as seen in the Ecuador case. And yes, judges judge based on their opinion (interpretation) of the law. News at 11 :|
> The arbitrators can also be severely conflicted, says Kahale, because they may act as a judge one day and as a lawyer for a party the next.
Then don't pick them as your selected champion/judge. Duh. That's how Kahale is making his money, he runs a law firm representing countires. So they are usually on the States' side, maybe even sometimes lending a lawyer as a judge for a country.
> .. nor are they required to act like courts
Umm, they do? The treaty specifies the details, but most arbitration providers have very specific rules of procedure, just like courts.
tl;dr arbitration tribunals ain't saints, but they seem much more sane, egalitarian and fair, than a host country's high court (which are usually ideologically biased either traditionally or after the current regime stuffs it full of its trustees)