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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.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.Today’s story reveals how corporations have turned the threat of ISDS legal action into a fearsome weapon, one that all but forces some of the countries where these corporations operate to give in to their demands.ISDS was originally devised as a forum in which to resolve conflicts between countries and the foreign companies that do business within their borders.The Australian company had found a way to trap Indonesia in the deals of the deposed dictator and, in the process, reap huge profits.The weapon that Newcrest and other powerful foreign mining companies wielded was a threat.
A foreign gold-mining company was preparing to gouge out a massive pit from the mountain that had sustained these farmers and fishermen for generations.
But when mass protests swept Suharto from power, the new parliament outlawed the environmentally devastating open-pit mining method in certain areas like this one, where it could endanger the water supply.
Newcrest, however, was proceeding as if the new law didn’t apply — because, effectively, it didn’t.
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.