A/HRC/30/44 forecasts of GDP and employment growth; engaging think tanks, economists, universities or foundations in preparing “teleological reports”; and colluding with media conglomerates to ensure that only the “sunny” side of bilateral investment treaties and free trade agreements is presented and contentious issues are suppressed or minimized. The issue of corporate criminal responsibility for ecocide57 and other offences deserves in-depth analysis in a future report.58 48. In reviewing the validity of the treaties, courts should also consider equitable arguments, both intra legem equity (within the rules of international law) and praeter legem equity (in the place of the rules of international law, applying the rules of justice or “substance over form”). Indeed, there is an inherent power for every court including the International Court of Justice to make decisions ex aequo et bono (based on what is fair and right), as in all agreements there is inherent equity. Each party who enters into an agreement tries to obtain the best possible deal, and when countries entered into bilateral investment treaties and free trade agreements they were expecting GDP growth, job creation and development. None imagined that the agreements would include “Trojan Horse” provisions such as unpredictable investor–State dispute settlement commitments and “survival clauses”, nor dreamt that arbitrators would interpret concepts like “expropriation” as encompassing fiscal, budgetary, macroprudential, social, environmental or health measures that could potentially reduce investors’ profits. Had this danger been clearly explained, probably no State would have consented. Thus, to the extent that there was inadequate disclosure of the risks, false representations and overly optimistic growth forecasts, there was no informed consent and the Vienna Convention on the Law of Treaties provides grounds for modification or termination. 49. Substantively, investor–State dispute settlement tribunals cannot immunize investors from responsibility to make amends for damage caused, and the “polluter pays” principle cannot be trumped by a claim that paying fines is tantamount to an “expropriation”. Such a claim would be rejected by any independent tribunal as blatantly frivolous and contrary to ordre public. 50. Pursuant to this analysis, the denunciation of international investment agreements is not only legitimate but also legal and their “survival clauses” must be seen as null and void when they are intended to perpetuate a system that violates human rights. VI. Outlook 51. “There is no fast or ready-paved road to sustainable and inclusive development; but the past three decades have demonstrated that delivery is unlikely with a one-size-fits-all approach to economic policy that cedes more and more space to the profitable ambitions of global firms and market forces. Countries should ultimately rely on their own efforts to mobilize productive resources and, especially, to raise their levels of domestic investment (both public and private), human capital and technological know-how. However, for this they need to have the widest possible room for manoeuvre to discover which policies work in their particular conditions, and not be subject to a constant shrinking of their policy space”.59 57 58 59 Polly Higgins, Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet, London, 2010. Harmen van der Wilt, “Corporate criminal responsibility for international crimes”, Chinese Journal of International law, vol. 12 (Issue 1), pp. 43–77. UNCTAD Trade and Development Report, 2014. 17