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<p>I'm sorry but to suggest BITS are multi stakeholder is just
fundamentally incorrect. Love them or hate them, they are entirely
different to what we talk about vis a vis multi stakeholder processes in
Internet policy.</p>
<div style="font-family: sans-serif;">
<p style="margin: 10pt 0; color: black;">On 11 April 2014 02:05:25
"michael gurstein" <gurstein@gmail.com> wrote:</p>
<blockquote type="cite" class="gmail_quote"
style="margin: 0 0 0 0.75ex; border-left: 1px solid #808080; padding-left: 0.75ex;"><div
class=WordSection1><p class=MsoNormal><span
style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'>These
“Investor Treaties” are the trade equivalent of <a
href="http://gurstein.wordpress.com/2014/03/26/the-multistakeholder-model-neo-liberalism-and-global-internet-governance/">multistakeholder
governance processes</a> in that they give the private sector equal rights
with governments in determining the contents of sectoral trade
agreements.<o:p></o:p></span></p><p class=MsoNormal><span
style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'><o:p> </o:p></span></p><p
class=MsoNormal><span
style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'>M<o:p></o:p></span></p><p
class=MsoNormal><span
style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'><o:p> </o:p></span></p><p
class=MsoNormal><b><span
style='font-size:10.0pt;font-family:"Tahoma","sans-serif"'>From:</span></b><span
style='font-size:10.0pt;font-family:"Tahoma","sans-serif"'> <a
href="mailto:sid-l@googlegroups.com">sid-l@googlegroups.com</a> [<a
href="mailto:sid-l@googlegroups.com">mailto:sid-l@googlegroups.com</a>]
<b>On Behalf Of </b>Sid Shniad<br><b>Sent:</b> Thursday, April 10, 2014
12:17 PM<br><b>To:</b> undisclosed-recipients:<br><b>Subject:</b> Investor
Treaties in Trouble<o:p></o:p></span></p><p
class=MsoNormal><o:p> </o:p></p><div><p class=MsoNormal><b><a
href="http://us5.campaign-archive2.com/?u=fa9cf38799136b5660f367ba6&id=3990f710bb&e=3f7d5d14f1"
target="_blank">http://us5.campaign-archive2.com/?u=fa9cf38799136b5660f367ba6&id=3990f710bb&e=3f7d5d14f1</a><br><br>SOUTHNEWS
No. 52, 10 April 2014<br></b><b><span style='font-size:7.5pt'><br>SOUTHNEWS
is a service of the South Centre to provide information and news on topical
issues from a South perspective.<br>Visit the South Centre’s website: <a
href="http://www.southcentre.int"
target="_blank">www.southcentre.int</a>.</span><br></b><b><span
style='font-size:13.5pt'><br>Investor Treaties in Trouble</span><br><br>By
Martin Khor</b><br> <br>The tide is turning against investment
treaties and free trade agreements that contain the controversial
investor-state dispute system, as countries like Indonesia and Germany take
action on this.<br><br>The tide is turning against investment treaties that
allow foreign investors to take up cases against host governments and claim
compensation of up to billions of dollars.<br> <br>Indonesia has given
notice to it will terminate its bilateral investment treaty (BIT) with the
Netherlands, according to a statement issued by the Dutch Embassy in
Jakarta last week.<br> <br>“The Indonesian Government has also
mentioned it intends to terminate all of its 67 bilateral investment
treaties”, according to the same statement.<br> <br>The Dutch
statement has not been confirmed by Indonesia. But if this is
correct, Indonesia joins South Africa, which last year announced it is
ending all its BITS.<br> <br>Several other countries are also
reviewing their investment treaties. This is prompted by increasing
numbers of cases being brought against governments by foreign companies who
claim that changes in government policies or contracts affect their future
profits.<br> <br>Many countries have been asked to pay large
compensations to companies under the treaties. The biggest claim was
against Ecuador, which has to compensate an American oil company US$ 2.3
billion for cancelling a contract.<br> <br>The system empowering
investors to sue governments in an international tribunal, thus bypassing
national laws and courts, is a subject of controversy in Malaysia because
it is part of the Trans-Pacific Partnership Agreement (TPPA) which the
country is negotiating with 11 other countries.<br> <br>The
investor-state dispute settlement (ISDS) system is contained in free trade
agreements (especially those involving the United States) and also in BITS
which countries sign among themselves to protect foreign investors’
rights.<br> <br>When these treaties containing ISDS were signed, many
countries did not know they were opening themselves to legal cases that
foreign investors can take up under loosely worded provisions that allow
them to win cases where they claim they have not been treated fairly or
that there expected revenues have been expropriated.<br> <br>Indonesia
and South Africa are among many countries that faced such cases. The
Indonesian government has been taken to the ICSID tribunal based in
Washington by a British company, Churchill Mining, which claimed the
government violated the UK-Indonesia BIT when its contract with a local
government in East Kalimantan was cancelled.<br> <br>Reports indicate
the company is claiming compensation of US$ 1 billion to US$ 2 billion in
losses.<br> <br>This and other cases taken against Indonesia prompted
the government to review whether it should retain its many
BITS.<br> <br>South Africa had also been sued by a British mining
company which claimed losses after the government introduced policies to
boost the economic capacity of the blacks to redress apartheid policies.
<br> <br>India is also reviewing its BITS,
after many companies filed cases after the Supreme Court cancelled their 2G
mobile communications licenses in the wake of a high-profile corruption
scandal linked to the granting of the licenses.<br> <br>But it is not
only developing countries that are getting disillusioned by the ISDS.
Europe is getting cold feet over the investor-state dispute mechanism
in the Transatlantic Trade and Investment Partnership (TTIP) it is
negotiating with the US, similar to the mechanism in the
TPPA.<br> <br>Several weeks ago, Germany told the European Commission
that the TTIP must not have the investor-state dispute
mechanism.<br> <br>Brigitte Zypries, an economy minister, told the
German parliament that Berlin was determined to exclude arbitration rights
from the TTIP deal, according to the Financial Times.<br> <br>“From
the perspective of the [German] federal government, US investors in the EU
have sufficient legal protection in the national courts,” she
said.<br> <br>The French trade minister had earlier voiced opposition
to ISDS, while a report commissioned by the United Kingdom government also
pointed out problems with the mechanism.<br> <br>The European
disillusionment has two causes. ISDS cases are also affecting the
countries.<br> <br>Germany has been taken to ICSID by a Swedish
company Vattenfall which claimed it suffered over a billion euros in losses
resulting from the government’s decision to phase out nuclear power after
the Fukushima disaster.<br> <br>And the European public is getting
upset over the investment system. Two European organisations last
year published a report showing how the international investment
arbitration system is monopolised by a few big law firms, how the tribunals
are riddled with conflicts of interest and the arbitrary nature of tribunal
decisions.<br> <br>That report caused shockwaves not only in the civil
society but also among European policy makers.<br> <br>In January, the
European Commission suspended negotiations with the US on the ISDS
provisions in the TTIP, and announced it would hold 90 days of
consultations with the public over the issue.<br> <br>In Australia,
the previous government decided it would not have an ISDS clause in its
future FTAs and BITS, following a case taken against it by Philip Morris
International which claimed loss of profits because of laws requiring only
plain packaging on cigarette boxes.<br> <br>In Malaysia, the ISDS is
one of the major controversial issues relating to the TPPA. Many
business, professional and public-interest groups want the government to
exclude the ISDS as a “red line” in the TPPA
negotiations.<br> <br>Prime Minister Dato’ Sri Najib Tun Razak had
also mentioned investment policy and ISDS as one of the issues (the others
being government procurement and state owned enterprises) in the TTPA that
may impinge on national sovereignty, when he was at the APEC Summit and
TPPA Summit in Indonesia last year.<br> <br>So far the United States
has stuck to its position that ISDS has to be part of the TPPA and TTIP.
However if the emerging European opposition affects the TTIP
negotiations, it could affect the TPPA as this would strengthen the
position of those opposed to ISDS.<br> <br>Meanwhile, we can also
expect more countries to review their BITS. Developing countries
seeking to end their bilateral agreements with European countries can point
to the fact that more and more European countries are themselves having
second thoughts about the ISDS embedded in these
agreements.<br> <br><br>Author: Martin Khor is the Executive Director
of the South Centre. Contact: <a href="mailto:director@southcentre.int"
target="_blank">director@southcentre.int</a>.<br>To view other articles in
SouthNews, please click here.<br><br>For more information, please contact
Vicente Paolo Yu of the South Centre: Email <a
href="mailto:yu@southcentre.int" target="_blank">yu@southcentre.int</a>, or
telephone <a href="tel:%2B41%2022%20791%2080%2050" target="_blank">+41 22
791 80 50</a>.<o:p></o:p></p></div><p class=MsoNormal>-- <br><br>---
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<o:p></o:p></p></div></blockquote>
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