[bestbits] FW: LDC's Turning Backs on Multistakeholder Trade Agreements

[Nick Ashton-Hart]

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.


On 11 April 2014 02:05:25 "michael gurstein" <gurstein at gmail.com> wrote:

> These “Investor Treaties” are the trade equivalent of multistakeholder 
> governance processes 
> <http://gurstein.wordpress.com/2014/03/26/the-multistakeholder-model-neo-liberalism-and-global-internet-governance/> 
>  in that they give the private sector equal rights with governments in 
> determining the contents of sectoral trade agreements.
>
>
>
> M
>
>
>
> From: sid-l at googlegroups.com [mailto:sid-l at googlegroups.com] On Behalf Of 
> Sid Shniad
> Sent: Thursday, April 10, 2014 12:17 PM
> To: undisclosed-recipients:
> Subject: Investor Treaties in Trouble
>
>
>
> http://us5.campaign-archive2.com/?u=fa9cf38799136b5660f367ba6 
> <http://us5.campaign-archive2.com/?u=fa9cf38799136b5660f367ba6&id=3990f710bb&e=3f7d5d14f1> 
> &id=3990f710bb&e=3f7d5d14f1
>
> SOUTHNEWS          No. 52, 10 April 2014
>
> SOUTHNEWS is a service of the South Centre to provide information and news 
> on topical issues from a South perspective.
> Visit the South Centre’s website: www.southcentre.int.
>
> Investor Treaties in Trouble
>
> By Martin Khor
>
> 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.
>
> 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.
>
> 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.
>
> “The Indonesian Government has also mentioned it intends to terminate all 
> of its 67 bilateral investment treaties”, according to the same statement.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> Reports indicate the company is claiming compensation of US$ 1 billion to 
> US$ 2 billion in losses.
>
> This and other cases taken against Indonesia prompted the government to 
> review whether it should retain its many BITS.
>
> 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.
> 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.
>
> 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.
>
> Several weeks ago, Germany told the European Commission that the TTIP must 
> not have the investor-state dispute mechanism.
>
> 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.
>
> “From the perspective of the [German] federal government, US investors in 
> the EU have sufficient legal protection in the national courts,” she said.
>
> 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.
>
> The European disillusionment has two causes.  ISDS cases are also affecting 
> the countries.
>
> 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.
>
> 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.
>
> That report caused shockwaves not only in the civil society but also among 
> European policy makers.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
> 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.
>
>
> Author: Martin Khor is the Executive Director of the South Centre. Contact: 
> director at southcentre.int.
> To view other articles in SouthNews, please click here.
>
> For more information, please contact Vicente Paolo Yu of the South Centre: 
> Email yu at southcentre.int, or telephone +41 22 791 80 50 
> <tel:%2B41%2022%20791%2080%2050> .
>
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