Privileging
investors over the public interest
One
of the most troubling aspects of the TPPA is its investment chapter
which contains highly controversial provisions (dubbed 'investor-state
dispute settlement' or ISDS) empowering an investor to sue the host
state. Fauwaz Abdul Aziz examines this extraordinary legal
remedy.
THE
investment chapter that has been proposed by the US for the Trans-Pacific
Partnership Agreement (TPPA) is based primarily on the template of
US free trade agreements (FTAs), particularly provisions in the North
American Free Trade Agreement (NAFTA) and its Chapter 11 on investment.
This immediately raises alarm bells, as NAFTA and NAFTA-style investment
provisions have been widely criticised for their lopsided terms prioritising
foreign investors and their investments over domestic investors as
well as over health, environmental and other public interest concerns.
A
2013 United Nations Conference on Trade and Development (UNCTAD) report
in fact found that NAFTA has been the agreement most often invoked
as a basis for investor-state dispute claims.1 What do NAFTA's Chapter
11 and other NAFTA-style investment agreements contain that seem to
have emboldened and encouraged foreign investors to challenge governments
and government regulations so frequently? What are the features of
NAFTA and NAFTA-style investment protection and promotion contained
in the TPPA, in particular, that are the source of concern?
Definition
of investment
The
investment chapter that the US has proposed for the TPPA has an overreaching
definition of 'investment' that governments are obliged to protect
and promote; it goes far beyond 'real property'. As UNCTAD had noted
in a 2005 report, a broad definition of investment may not be consistent
with a government's development policy at every period in the life
of a treaty. More specifically, the danger of such an overreaching
definition is that it may commit a host country to permitting, promoting
or protecting forms of investment that it did not contemplate at the
time it entered into an agreement and would not have agreed to include
within the scope of the agreement had the issue been raised explicitly.2
Gus
Van Harten points out the typically broad definition of investment
contained in bilateral investment treaties such as the US-Ecuador
BIT, which extends beyond tangible assets to include any intangibles
and assets such as market share, goodwill and intellectual property
rights.3 Similarly, 'investment' in the draft text of the TPPA's investment
chapter is defined as:
'every
asset that an investor owns or controls, directly or indirectly, that
has the characteristics of an investment, including such characteristics
as the commitment of capital or other resources, the expectation of
gain or profit, or the assumption of risk. Forms that an investment
may take include … an enterprise; shares, stock, and other forms of
equity participation in an enterprise; …loans ...; futures, options
and other derivatives; ...turnkey, construction, management, production,
concession, revenue-sharing and other similar contracts; ... intellectual
property rights...; licences, authorisations, permits and similar
rights conferred pursuant to domestic law; and ...other tangible or
intangible, movable or immovable property, and related property rights,
such as leases, mortgages, liens and pledges...'
The
wide-ranging breadth of the term 'investment' in investment treaties
means that disciplines placed on governments will often overlap with
disciplines arising from agreements on trade in goods, trade in services
or intellectual property rights. Moreover, as a result of this wide
coverage, the obligations on a government in a BIT will apply to virtually
any governmental measure carried out at any branch or level of government
and expose a wide range of domestic laws, regulations and policies
to foreign investor challenge and claims for compensation, unless
that measure has been expressly exempted from being challenged in
the treaty.4
As
Harvey Purse and Sanya Reid Smith have noted in their paper 'Some
impacts of a TPPA investment chapter', NAFTA cases show that both
developed- and developing-country regulations, in areas including
health, environmental protection and water conservation, could be
challenged under its investment protection provisions. Equivalent
investor protections in other treaties have seen governments sued
over the latter's affirmative action policies, regulation of the oil
sector, measures taken to reduce budget deficits during a severe financial
crisis, the investor's permits being revoked because it violated the
law, value-added taxes, the rezoning of land, measures on hazardous
waste facilities, regulation of water companies, declaration of an
area as a nature reserve to preserve the unique wildlife of the region,
and treatment at the hands of media regulators.5
The
very real danger with the TPPA's investment chapter is that, since
it replicates the extreme protections and promotion of foreign investors
and their investments contained in NAFTA, the same outcome and barrage
of investor-state dispute challenges will be replicated when the TPPA
comes into effect.
Investors
and investor rights
As
in NAFTA's Chapter 11, Article 12.2 of the proposed investment chapter
of the TPPA defines 'investor' such that firms without significant
investments in a TPPA country - and even investors from non-TPPA countries
- may exploit the protections and privileges contained in the TPPA
for foreign investors and the agreement's enforcement obligations.
Article 12.2 of the draft text defines 'investor' as 'an investor
of a TPPA Party, a national or an enterprise of a Party, that attempts
to make, is making, or has made an investment in the territory of
another Party.'
As
Lori Wallach and Todd Tucker have put it in 'Public interest analysis
of leaked Trans-Pacific Partnership (TPP) investment text', such a
definition fails to require that such an investor have 'actual business
activities or make a significant commitment of capital in the host
country'. This has seen in the past firms 'that have made no real
investment in a country dragging governments through costly foreign
tribunal proceedings' merely on the basis of 'having a staff person
or two and a minor paper trail in the claimed home country' and thereby
passing off as having 'substantial business activities' in that country6
when it may have merely been a holding company established formally
in the host country but which is actually owned and controlled by
investors of a third, non-party.
Van
Harten illustrates one form of 'forum-shopping' - made available by
such a liberal approach to defining 'investor' - in the case of Aguas
del Tunari SA v. Republic of Bolivia. The US firm Bechtel - after
appraising that public opposition had arisen against its privatised
water utility in the Bolivian city of Cochabamba - reorganised its
corporate structure so as to incorporate three Dutch holding companies
in between itself and the Cayman Islands firm that owned the Bolivian
firm Aguas del Tunari, which was a party to the Cochabamba water concession.
'Tracing
this chain of ownership,' Van Harten states, 'the actual majority
shareholder of Aguas del Tunari (and of the concession) was a US firm
that had no access to a US-Bolivia BIT (because none was in force
at the time). However, the broad definition of "investor"
in the Netherlands-Bolivia BIT allowed Bechtel effectively to re-create
itself as a Dutch investor, by way of Dutch holding companies, and
to bring a claim against Bolivia under the Netherlands-Bolivia BIT.'7
Based
on such provisions as those contained in NAFTA and the draft TPPA
investment text, foreign investors can avail of such liberal approaches
to 'forum-shopping' while governments such as those signing on to
the TPPA 'must assume that any foreign investor in its economy may
be able to access compulsory arbitration under an investment treaty
even where the host state does not have a BIT with the state of origin
of the foreign investor itself.' In this way, Van Harten concludes,
such an approach in defining 'investor' strengthens the ability of
foreign investors to redesign their corporate structure in order to
maximise their opportunities to bring a claim against the government
of the country in which their assets are located.8
National
treatment, performance requirements
Many
quarters, such as UNCTAD, have noted the prudence of maintaining discretions
to impose conditions on foreign investors to enter and operate in
a host country, for a number of industrial development strategies:
for protection, promotion and development of infant and export-oriented
industries and small and medium enterprises, defence capabilities,
creation, preservation and promotion of livelihoods, to regulate a
monopoly in the public interest, technology transfer, cultural considerations,
to preserve the environment, natural wealth and resources, and so
on. Similarly, 'performance requirements' imposed on foreign investors
have frequently been used by both developed and developing countries
to ensure that benefits accrue to the national interest amidst moves
to attract foreign investments.9
But
Article 12.4 (on 'national treatment') of the draft TPPA investment
chapter states that a TPPA party shall accord to investors of other
parties 'treatment no less favourable than that it accords, in like
circumstances, to its own investors with respect to the establishment,
acquisition, expansion, management, conduct, operation, and sale or
other disposition of investments in its territory.' Under this article,
each party shall also 'accord to covered investments treatment no
less favourable than that it accords, in like circumstances, to investments
in its territory of its own investors with respect to the establishment,
acquisition, expansion, management, conduct, operation, and sale or
other disposition of investments.'10
The
TPPA's 'national treatment' clauses, as proposed in the US draft text,
would thus prohibit countries from restricting foreign investment
within their territories, while Article 12.7 explicitly prohibits
governments from imposing performance requirements on foreign investors
from TPPA countries, such as requirements 'to export a given level
or percentage of goods, to achieve a given level or percentage of
domestic content. to purchase, use or accord a preference to goods
produced in its territory, or to purchase goods from persons in its
territory. to relate in any way the volume or value of imports to
the volume or value of exports or to the amount of foreign exchange
inflows associated with such investment. [or] to restrict sales of
goods in its territory that such investment produces by relating such
sales in any way to the volume or value of its exports or foreign
exchange earnings or to supply exclusively from the territory of the
Party the goods that such investment [produces] to a specific regional
market or to the world market.'
It
is important to note that while governments are stopped from treating
foreign investors less favourably than domestic ones, there is no
clause to prohibit the reverse - as the discussion below will illustrate
- of foreign investors being accorded unfairly better treatment than
their domestic counterparts.
Minimum
standard of treatment
Article
12.6 of the US' draft investment text stipulates that each party shall
accord to investors from other TPPA parties 'treatment in accordance
with customary international law, including fair and equitable treatment
and full protection and security.' 'Fair and equitable treatment'
includes the minimal obligatory treatment not to deny justice in criminal,
civil, or administrative adjudicatory proceedings in accordance with
the principle of due process embodied in the principal legal systems
of the world, while 'full protection and security' requires each party
to provide the level of protection required under customary international
law.
Wallach
and Tucker point out that as in NAFTA, the TPPA would provide for
foreign investors the right to claim damages for even government measures
that reduce their expected future profits (Article 12.12 on indirect
expropriation) or differ from the expected regulatory environment
that they might have had before the introduction of the new measure
(Article 12.6 on minimum standard of treatment). This contrasts with
other FTAs which - while not completely sufficient - at least had
language to ensure that 'for greater certainty, whether an investor's
investment-backed expectations are reasonable depends in part on the
nature and extent of governmental regulation in the relevant sector.
For example, an investor's expectations that regulations will not
change are less likely to be reasonable in a heavily regulated sector
than in a less heavily regulated sector'.11
Such
language is absent in the draft investment text proposed by the US
for the TPPA. The inclusion of NAFTA wording on minimum standard of
treatment and the rights to compensation for indirect expropriation
'directly contradicts the assurances TPP governments have given to
legislators and public interest advocates that the pact would safeguard
regulatory sovereignty.' Inclusion of these terms in the TPPA would,
in fact, provide ample opportunities for investors to challenge government
measures - even those applying to both domestic and foreign firms
- and get compensation for them.12
Overreaching
definition of state measures
Implied
in the discussion above is the understanding that, in contrast to
previously held assumptions and definitions of property being in reference
to real, physical property - which was thus protected from arbitrary
government 'expropriation' - NAFTA-like clauses on 'indirect expropriation'
have broadened property to include the foreign investor's expected
value of his/her investment. Indirect expropriation has thus come
to include the incidence of that expected value of the investment
having been reduced by a government measure. The dominant practice
of national legislative and judicial systems with regard to compensation
for expropriation is to provide for such compensation only when the
government has actually acquired an asset, not when the value of an
asset has been adversely affected by a regulatory - or other government
- measure.
In
other words, 'fair and equitable treatment' has come to mean the onerous
obligation of governments not only to ensure a transparent and predictable
framework for foreign investors' business planning and investment
but also to 'act in a consistent manner, free from ambiguity and totally
transparently in its relations with the foreign investor'.13 Thus,
a government measure that leaves a foreign investor's ownership title
unaffected but that otherwise causes that investor 'economic harm
(even incidental harm, potentially)' can be - and has been argued
to be - regarded as compensable expropriation that requires payment
of market value damages to the investor. In the case brought by Metalclad
Corporation against Mexico under NAFTA, for example, it was concluded
that expropriation included 'not only open, deliberate and acknowledged
takings of property, such as outright seizure or formal or obligatory
transfer of title in favour of the host State, but also covert or
incidental interference with the use of property which has the effect
of depriving the owner, in whole or in significant part, of the use
or reasonably-to-be-expected economic benefit of property even if
not necessarily to the obvious benefit of the host State.'14
Investor-state
dispute settlement
The
above discussion shows how NAFTA-based and NAFTA-like concepts and
clauses in the TPPA contribute towards forming a lopsided 'playing
field' for foreign investors to operate and dominate the economies
of TPPA countries. These concepts and clauses achieve this by (i)
being applicable to practically any government law, policy and regulation
that affects the assets of foreign investors and (ii) setting out
sufficiently ambiguous standards for tribunals to interpret challenges
in favour of foreign investors. What now remains is to discuss the
controversial investor-state dispute settlement (ISDS) mechanism that
has provided for the international adjudication and interpretation
of these clauses and concepts whenever a dispute arises between a
foreign investor and a host state over a claimed violation of investment
protection and promotion provisions.
International
arbitration under the ISDS model propagated by NAFTA, the TPPA and
other NAFTA-like investment protection provisions allows investors
to directly challenge - and claim compensation for - government measures
without the otherwise accepted 'exhaustion requirement' of seeking
legal remedies within the host state. Internationally enforceable
damages are awarded to foreign investors for, as discussed above,
a whole range of legislative, policy or regulatory measures, by way
of a system that is structurally biased against host governments.
The
arbitral tribunal determines the available policy space of host governments
in a context where only one class of parties (the investors) brings
the claims - states cannot bring an ISDS dispute to the arbitration
tribunal. In this way, arbitrators are incentivised to interpret and
award in favour of investors so as to encourage more claims and more
appointments, either as arbitrators or as counsel for foreign investors.15
Awards
made by arbitration tribunals cannot be reviewed (other than for jurisdictional
errors or serious procedural unfairness), whether in the same arbitration
system or in any domestic court. In most cases, arbitration provides
for the process as well as any decisions to be kept secret unless
both of the disputing parties agree otherwise.16
Criticisms
have also been levelled against the ISDS system due to the 'chilling
effect' whereby investors' suits and a potential award may cause governments
to abandon public measures. Many have cited the case of Ethyl Corporation
v. Government of Canada, which saw the Canadian government banning
a gasoline additive on environmental and public health grounds, but
subsequently reversing that ban following the company's arbitration
claim under NAFTA against Canada for expropriation. Before the matter
was decided by the tribunal (after the tribunal decided that it had
jurisdiction over the claim), Canada settled and agreed to remove
the ban, declare publicly that the gasoline additive was not an environmental
or a health risk, and pay $19 million in compensation to the US firm.
Conclusion
The
above discussion has touched upon a number of cross-cutting issues
and concerns that have been brought to light on account of the developments
relating to ISDS. These include the issue of transparency and confidentiality
of ISDS and the persistence of investor claims, or threats, against
governments over measures introduced on environmental, health, financial
crisis-related or other public interest grounds. Coupled with other
issues that have not been discussed - such as the persistence of divergent
and contradictory interpretations by arbitration tribunals of the
same or similar investment provisions, as well as the alarming practice
of involving specialised firms in financing international arbitration
claims against states in exchange for a share in a possible future
award or settlement in favour of the claimant - it would seem obvious
that a complete relook needs to be taken by policymakers at the ISDS
system currently gaining 'popularity' among governments.
Motivation
for this relook can derive from recent discovery of the increasing
scale and pace of attacks by multinational corporate interests on
states in relation to public interest-related measures. In a 2013
report entitled 'Recent developments in investor-state dispute settlement
(ISDS)', UNCTAD said it found that the total number of known treaty-based
ISDS cases rose to 518 by the end of 2012. Since most arbitration
forums do not maintain a public registry of claims, the total number
of cases is likely to be higher.
The
year 2012 saw 62 new ISDS cases being initiated, the highest number
of known treaty-based cases ever filed in one year under international
investment agreements. Sixty-eight percent (42 out of 62) of the new
cases involved governments of developing and transition economies
as respondents. Sixty-three percent (39) of the new cases were brought
on by developed-country investors. Seventy percent (17 cases) of the
public decisions addressing the merits of the dispute saw investors'
claims being accepted, at least in part, reflecting the highest percentage
of rulings against the state. Last year also saw $1.77 billion being
awarded to Occidental Petroleum in its case against Ecuador, the highest
award in the history of ISDS, arising out of a unilateral termination
by the state of an oil contract.
It
has also been widely reported that almost $380 million has already
been paid out as compensation to firms in successful challenges of
state measures, while 70% of decisions in favour of investors as claimants
were in relation to actions over the environment and other natural
resources.
UNCTAD
also pointed out that ISDS arbitrations had been initiated most frequently
by claimants from the US (123 cases, or 24% of all known disputes),
the Netherlands (50 cases), the UK (30) and Germany (27). The three
investment instruments most frequently used as a basis for ISDS claims
have been NAFTA (49 cases), the Energy Charter Treaty (29) and the
Argentina-United States BIT (17).
But
we must also not lose sight of the parallel, or perhaps larger, context
of issues in which the problems associated with ISDS are to be framed:
the agreement by countries - developed and developing alike - to the
surrender of their executive, legislative and adjudicatory prerogatives
in the scramble for foreign investments, and to granting ever more
- and inordinately higher standards of - protections, liberties17
and privileges to foreign investors than what is accorded to domestic
firms. It is issues such as the scope and overreach of definitions
of 'investor', 'investment' and state 'measures', and the interpretations
of 'minimum standard of treatment', 'fair and equitable treatment',
'national treatment' and 'expropriation' that need to be reviewed,
if not overhauled. A very opportune place for the 12 Asia-Pacific
governments negotiating the TPPA to start such a relook is the proposed
investment chapter of the TPPA itself as well as other NAFTA-styled
investment agreements.
Fauwaz
Abdul Aziz is a researcher with the Third World Network.
Endnotes
1.
United Nations Conference on Trade and Development (UNCTAD), 'Recent
develop- ments in investor-state dispute settlement (ISDS)', available
at www.unctad.org/diae.
2.
Cited in Harvey Purse and Sanya Reid Smith, 'Some impacts of a
TPPA investment chapter', 9.
3.
The US-Ecuador BIT defines investment as being: 'every kind of
investment in the territory of one Party owned or controlled directly
or indirectly by nationals or companies of the other Party, such as
equity, debt, and service and investment contracts; and includes:
(i) tangible and intangible property...; (ii) a company or shares
of stock or other interests in a company...; (iii) a claim to money
or a claim to performance having economic value, and associated with
an investment; (iv) intellectual property...; and (v) any right conferred
by law or contract, and any licences and permits pursuant to law.'
4.
Gus Van Harten, 'Policy impacts of investment agreements for Andean
Community states', September 2008, 15.
5.
Harvey Purse and Sanya Reid Smith, 'Some impacts of a TPPA investment
chapter', 1-2.
6.
Lori Wallach and Todd Tucker, 'Public interest analysis of leaked
Trans-Pacific Partnership (TPP) investment text', 4.
7.
Citing the similar case of the 'Fedax arbitration', Van Harten
has shown how the foreign arbitration tribunal appointed to preside
over a suit against the Venezuelan government allowed a Dutch company
to bring its BIT claim against Venezuela concerning promissory notes
issued by the Venezuelan government. Prior to the claim, the promissory
notes had been transferred to the Dutch company by a Venezuelan firm.
Venezuela's argument that the investor had not made an actual investment
in the country's economy was rejected. See Van Harten, op. cit., 16-17.
8.
Ibid., 17.
9.
Purse and Smith, op. cit., 3; Van Harten, op. cit., 25.
10.
Even domestic policies that are not applied discriminately but apply
equally to both local and foreign firms can be seen as violating investors'
rights in the TPPA if a foreign investor can claim that, due to its
business model, it ends up experiencing a slightly higher burden in
complying with the law, regulation or policy introduced by the host
government. See Wallach and Tucker, op. cit., 7.
11.
Wallach and Tucker, op. cit., 5-6.
12.
Ibid.
13.
Van Harten, op. cit., 8.
14.
Ibid., 24-25.
15.
One study looked at 140 international arbitral cases up to May 2010
and found indications of systemic bias in the resolution of issues
in investment treaty arbitration. The tested expectations were that
arbitrators tended to favour interpretations that benefit the claimant-investor
by expanding the authority of tribunals and by allowing more claims
to proceed, especially in cases where the claimant is from a Western
capital-exporting state such as the US, France, the UK or Germany.
See Gus Van Harten, 'Pro-investor or pro-state bias in investment-treaty
arbitration? Forthcoming study gives cause for concern', Investment
Treaty News, Issue 3, Volume 2, April 2012; and Nicolas Hachez and
Jan Wouters, 'International investment dispute settlement in the 21st
century: Does the preservation of the public interest require an alternative
to the arbitral model?', Leuven Centre for Global Governance Studies,
Working Paper No. 81, February 2012, 11.
16.
Hachez and Wouters, op. cit.; Wallach and Tucker, op. cit., 5.
17.
See letter, available on the Internet, entitled 'Promoting financial
stability in the Trans-Pacific Partnership Agreement', dated 28 February
2012.
*Third
World Resurgence No. 275, July 2013, pp 18-22
Posts
