ISDS procedures can't be used for laws that are in place before the treaty is ratified,
Incorrect. Countries are legally bound by ISDS rules from the moment they agree to the treaty - BEFORE the ratification process. It's done through the magic of "Provisional Application."
UNESCO Glossary: Provisional Application
"The growing use of provisional application clauses in treaties is a consequence of the need felt to give effect to treaty obligations prior to a state’s formal ratification of / accession to a treaty...."
Yes, Vattenfall's Energy Charter Treaty lawsuit is for the Germany's policy change made post-ratification.
Meanwhile, Russia, Belarus, Iceland, Norway and Australia signed the ECT, but have never ratified it. In 2009 Russia announced its decision to not become a Contracting Party to it and officially withdrew from the ECT. Those countries are still bound by their ECT commitments. Article 45 (3) (b) states that "In the event that a signatory terminates provisional application…any Investments made in its Area during such provisional application by Investors of other signatories shall nevertheless remain in effect with respect to those Investments for twenty years following the effective date of termination."
In 2004 the Russian government stole/nationalized the Yukos Oil Company, which had foreign investors. In 2014 the ECT dispute arbitration tribunal ordered the Russian Federation to pay damages in excess of USD 50 Billion (with a B) to Yukos shareholders. Plus USD 60 million in legal fees and EUR 4.2 million in arbitration costs. It was the largest arbitration award in history.
Remember, this is for a treaty that Russia did not ratify. (citation)
CETA - the Canada-EU Free-Trade-And-Much-More treaty - has a similar clause:
"4. Notwithstanding paragraphs 1 and 2, if the provisional application of this Agreement is terminated and it does not enter into force, a claim may be submitted pursuant to the provisions of this Agreement, regarding any matter arising during the period of the provisional application of this Agreement, pursuant to the rules and procedures established in this Agreement, and provided no more than three (3) years have elapsed since the date of termination of the provisional application."
"Provisional application" refers to the time between when we agree to the treaty and when we ratify it. (See the UNESCO explanation above.) Once we DO ratify it, according to a clause on the same page...
"2. Notwithstanding paragraph 1, in the event that the present Agreement is terminated, the provisions of [Chapter X Investment] shall continue to be effective for a further period of 20 years from that date in respect of investments made before the date of termination of the present Agreement. This paragraph shall not apply in the case of the provisional application of this Agreement."
So once ratified, should we terminate the agreement, we're bound for a further 20 years after termination.
But suppose we don't ratify it. Suppose that once CETA is made public for ratification, Canadians or Europeans are opposed and decide not to ratify it. We're still bound by it for three years. The taxpayers - can still be sued if we pass or enforce any law in that time that harms investors.
The TPP will be no different. Ratification is SO last century.