The Day Millennials Discovered Investor-State Suits

October 21, 2016

The Day Millennials Discovered Investor-State Suits

Buzzfeed News sits down for a brief conversation with the Centre for International Governance Innovation (CIGI) after the digital media organization took the world by surprise with a 10,000-word series by Pulitzer Prize-winning Investigative Journalist Chris Hamby on investor-state dispute settlements (ISDS), one of the most controversial parts of planned international trade agreements. 

The investigation took 18-months, ranged across three continents, interviewed more than 200 sources, and reviewed more than 10,000 documents, including previously-confidential material, and resulted in an exposé-style series that popularized the subject in a way few have before, likening investor-state arbitrations to a “private global supercourt”.

The series succeeded in grabbing attention on Capitol Hill, where more than a dozen members of the Senate and House responded with calls for reform and raised fresh doubts about the ratification of the Trans-Pacific Partnership (TPP), arguing the investor-state dispute settlement provisions "will actually weaken the ability of our TPP partners to govern".

A key finding of the series was data that appear to indicate that “of the almost 700 publicly known cases across the last half century, more than a tenth were filed just last year,” which would denote a significant recent increase in the rate of cases, and which the reporting by the Pulitzer Prize-winning investigative journalist suggests may in part be attributable to more enterprising, ambitious, and creative legal strategies.

Investor-state dispute resolution has long been the subject of extensive scholarship at CIGI and was the focus of a recent research project led by CIGI Senior Fellow Armand de Mestral addressing a central policy issue of contemporary international investment protection law: is investor-state arbitration suitable between developed liberal democratic countries? The research papers tackled topics like the history of investor-state arbitration, its role in US law and politics, a European Commission proposal for a permanent investment court, and were complimented by video lectures by scholars like Thomas Cottier.

The attention given to the topic by Buzzfeed News, however, was more novel, and comes from an organization that - while known more for its viral content – has been steadily building a bullpen with some of the most hard-hitting young investigative reporters in America.

The Columbia Journalism Review (CJR), a publication of the Columbia University Graduate School of Journalism, noted that a “blog better known for listicles and cat GIFs” was serving notice that it was a “legitimate news organization," and one that could influence political and public discourse on global trade governance by turning “its supposedly nearsighted Millennial gaze” to “legalese buried deep within many international trade agreements” – marking something of a cultural moment.

CJR has been host to much hand-wringing over the future of public-interest journalism in the digital era, including an oft-cited essay by Emily Bell, director of Columbia’s Tow Center for Digital Journalism, on the collapse of the traditional business model for news organizations, as advertising revenues and distributional power flow to digital platforms like Google and social networks like Facebook.

The Emily Bell essay was followed by a cri de coeur from Guardian Editor-In-Chief Katharine Vine on the search for a viable business model that evoked the dystopian future portrayed by German philosopher Jürgen Habermas, who warned: “without the flow of information gained through extensive research, and without the stimulation of arguments based on an expertise that doesn’t come cheap, public communication loses its discursive vitality. The public media would then cease to resist populist tendencies, and could no longer fulfil the function it should in the context of a democratic constitutional state.”

The few optimists left in the sector may see the ambition of Buzzfeed’s growing team of investigative journalists as a tentative sign that emerging digital-only news organizations will not only disrupt, but may in time displace, their legacy media forbearers and develop business models that can support new forms of accountability-journalism at least as wide-ranging and far-reaching as that practiced by their predecessors.

Chris Hamby picked up on this theme in his conversation with CIGI, noting that: “We have one of the largest investigative teams in the country now.”

He acknowledged that when the first piece in his series was published: “you could sort of see heads exploding that this was on Buzzfeeds’ site, but [people] were saying this is terrific and this is a positive development for the news business in general.”

“You can have an online media organization that does both cat gifs and very long 18-month investigative stories, and those two are not mutually exclusive, and I think people are starting to come round to that.”

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