Corporations Win Big in Battle Against Investment Regulation

• Analysis by Isolda Agazzi (geneva)
• Sunday, May 06, 2012
• Inter Press Service

According to the most recent data released by the United Nations Conference on Trade and Development (UNCTAD), the number of lawsuits brought against governments by companies evoking clauses in bilateral investment treaties (BITs) was 450 at the end of 2011.

These are only the known cases; most most are kept secret.

In the many instances in which these lawsuits have been successful, governments have been made to pay fines amounting to tens, sometimes hundreds of millions of dollars or euros.

The highly controversial BITs — which establish the conditions for investment by companies of one country in another state — have handed multinational corporations an arsenal of clauses with which to fight state regulations against harmful investment.

In 2011, Argentina held the record of known cases (51), followed by Venezuela (25), Ecuador (23) and Mexico. Most of the claims against Argentina are related to the 2011 financial crisis and many to the privatisation of water. In total, Buenos Aires has been fined more than one billion dollars by multinational corporations.

Last year, Ecuador was forced to pay fines of 78 million dollars to the United States’ oil company Chevron, which claims that the country’s efforts to protect the Amazon from pollution have negatively affected business.

This year, Argentina may face a new case, after the government moved to regain state control over the country’s biggest oil firm, which had been owned by the private Spanish oil company Repsol for many years.

According to UNCTAD, the year 2011 saw 40 percent of cases decided in favour of states and 30 percent in favour of investors, while the remaining 30 percent resulted in settlements.

Ironically, BITs allow companies to sue governments but not vice versa.

In December 2011, for instance, the Stockholm-based Vattenfall threatened to sue Germany for the federal government’s decision, in the aftermath of the Fukushima catastrophe, to phase out nuclear energy by 2022.

The Swedish nuclear company was poised to rake in compensation amounting to more than a billion euros. Evoking the Energy Charter Treaty — a multilateral agreement that protects investment in the energy sector — Vattenfall first tried, unsuccessfully, to convince the federal government to accommodate its requests.

The deadline for peaceful dispute settlement expired last March and now Vattenfall could sue the government at any time.

'Germany has around 130 BITs that could potentially severely restrain its environmental policy,' Nathalie Bernasconi, of the Geneva-based International Institute for Sustainable Development (IISD), told IPS.

'Foreign investors may challenge, in an international arbitration process, any change in law and policy to protect the environment and public health, to promote social or cultural goals, or to grapple with financial or economic crises. However, it is impossible to predict the outcome with any precision because each will depend in large part on the composition of the arbitral tribunal deciding the case, which consists of three highly-paid individuals, typically specialised in commercial rather than public law.'

It is the second time that Vattenfall has attacked Germany on environmental charges. In 2009, it challenged the standards set out in an environmental permit required for the operation of its coal-fired power plant situated on the river Elbe, which runs through Hamburg.

Claiming that the regulations — aimed at limiting the increase in water temperatures caused by the plant’s operations — were too strict, the company brought the case to an arbitral tribunal at the International Centre for Settlement of Investment Disputes (ICSID).

In order to settle, Germany agreed to change the conditions under which the permit was delivered and the case was dropped.

'A legal analysis by a German law firm commissioned by Greenpeace confirms that the environmental standards in the permit were diluted in a way that was probably not required under German law. It is a typical case where a government... (has) abandon legislation or standards it originally planned to adopt out of fear of being sued or condemned in an international procedure,' Bernasconi commented.

Another emblematic example of the power corporations wield over governments is the case brought by Philip Morris International against Uruguay and Australia under BITs the countries had signed with Switzerland and Hong Kong respectively.

The U.S. tobacco giant is using these treaties to challenge new legislation concerning the health warnings and advertising on cigarette packages - even though the regulations are in compliance with and encouraged by the World Health Organisation (WHO) framework convention on tobacco control.

According to Veijo Heiskanen, a specialist in international arbitration at Lalive law firm in Geneva, 'From the 1960s to the 1970, states had a direct role in economies. With the privatisation (wave) of the 1990s, this direct role was replaced by regulation.'

This led to questions about whether the implementation of these regulations was adversely affecting investors, particularly foreign ones, which is often the case.

While investor protection was initially necessary to regulate government measures like nationalisation, the trend now seems to be leaning heavily on corporations challenging these regulations.

For example, in the late 1990s, Mexico was fined 16.7 million dollars for forbidding the U.S.-based company Metalclad from dumping toxic waste in the Guadalcazar County in the northern part of the north-central state of San Luis Potosí.

'The real question is whether (BITs) regulations are appropriate and states should seek (sound) legal advice to make sure that they are in compliance with international standards,' stressed Heiskanen. 'These disputes are politically sensitive because there are (millions of dollars) at stake.'

Prior to paying fines to Chevron last year, Ecuador was sentenced to the payment of 700 million dollars back in 2010. That same year the Swiss cement supplier Holcim obtained 650 million dollars from Venezuela, when the country nationalised cement production.

All experts are agreed that legislation and regulations need to find a better equilibrium so that they cannot be exploited by states or investors.

'Investment protection treaties must be modernised to strike a better balance between investors’ and states rights,' Bernasconi concluded. 'The old model doesn’t work any more.'

States and citizens alike have become extremely mistrustful of the dispute settlement process. 'The commercial arbitration model on which investment arbitration is built is just not adequate for resolving sensitive issues of public policy,' she added.

'A lack of transparency, unpredictability and conflicts of interest have simply become unacceptable. This discontent has led countries like Australia to disfavor investor-state dispute settlement entirely and others to terminate their investment treaties.

'Watching these developments, countries like Brazil, which never ratified any of its investment treaties, must count themselves lucky,' she added.

© Inter Press Service (2012) — All Rights ReservedOriginal source: Inter Press Service