Fair and Equitable Treatment - Reality, Mirage or Dream - Case Study Example

 Introduction Like all things in international relations, there is always controversy on how to properly interpret treaties. The legal definition of fair and equitable treatment (FET) is the customary or expected minimum standard of treatment applicable to aliens and their property or investments.1 The notion of a “fair and equitable treatment” in investment treaties is not wholly inaccurate or false, but it is also not wholly true, either. The parties to the treaty agree the rights of investors are not obstructed de jure or de facto. Its most important element is investor protection. This paper looks at arbitration examples, investment treaties (especially BITs, or bilateral investment treaties), and specific case studies such as NAFTA, and concludes that the idea of a “fair and equitable treatment” has not yet been achieved despite proclamations to the contrary. A nice starting point for a good discussion is that the term or phrase “fair and equitable treatment” is the minimum standard and is included in most international investment agreements (IIAs). There are slight variations to this legal standard, such as the phrase “equitable and reasonable treatment” but both of the phrases are almost always made in reference to international laws. Admittedly, even this short phrase is subject to different interpretations depending on the circumstances and one's viewpoint. What is lacking in most of treaties is the legal concept of erga omnes like in Portugal v Australia to attain the goal of FET.2 It is the main purpose of this paper to explore further how this relatively simple legal phrase is used today to implement investment treaties. What is quite troubling to see is the prevalent use of the concept of special laws to interpret treaties in favour of one party only – the investors.3 Discussion Fair and equitable treatment is becoming more important these days. It is also becoming more ubiquitous, with claimant-investors regularly invoking it due to its perceived flexibility and adaptability to many actual conditions requiring arbitration. This legal term likewise gives many arbitral tribunals enough leeway and authority to articulate a variety of rules to achieve a needed resolution in particular disputes. The only issue supposedly before any trade arbitral tribunal is to decide whether in all circumstances the conduct at issue is indeed fair and equitable.4 Definition: “Fair and equitable” treatment, narrowly speaking, refers to investments.5 It is commonly used in international treaty law and “protects investors' legitimate and reasonable expectations;6 it also protects against an arbitrary or capricious treatment, bad faith, coercion and harassments.” Investors negotiating with countries are very often understandably worried that their investments might be seized as part of nationalisation schemes, or that a change of regimes might cause loans to be defaulted upon or that corruption might force them to engage in more frequent bribery as seen across the developing world. The main consideration is the safety of investments by making sure agreements offer the contracting parties increased security and protection.7 Investors prefer safety before any profits are considered. The investor's legitimate security expectations are the dominant elements of this treaty standard.8 Some experts believe FET guarantees a treatment beyond the minimum standards required under international laws. But this paper will analyse fair and equitable treatment (FET) a little bit broadly. It is fair enough for investors to receive fair and equitable treatment but what about the host governments, citizen stakeholders, NGOs, labour and the poor? This paper will thus look at fair and equitable treatment in that broader fashion. By merely looking at “fair and equitable treatment” rulings, it could give a false impression that treaties were fairly implemented and negotiated when they are in fact deeply divisive, controversial, often one-sided and perhaps despised by local populations. But looking only at how investors fare under treaties gives an incomplete perspective. Sornarajah makes clear that a comprehensive study of international treaty law should analyse the “political, economic and historical” factors, use a nice combination of positivist and idealistic analysis, and should represent the full breadth of these typical “normative conflicts.”9 This observation holds true when realizing that most of investment treaties can become a little more than state-and international-agency-enforced insurance contracts.10 Recall that the very reason for an investment treaty to exist in the first place is to allow investments to flow where it normally would not. This exposes investors to new risks and it is but appropriate to make sure if political corruption or the winds of change in regimes will not expose them to unfair risk. But it also conversely gives them new opportunities. There is no reason to treat investors, prima facie, as special protectorates; nations need protection and assurances too. Attention to whether treaties and arbitration respect the equally important rights of citizen stakeholders, labour, NGOs, communities and ethnic groups is given note. Investors should have reciprocal obligations to refrain from abusive treatment nor act in economically unsustainable behaviours, protect workers and not flout the law or create unsafe working conditions, etc. However, despite the existence of concession contracts, investors generally resort to international arbitration by use of the existing BIT to enforce their claims.11 Further, investors must also realize there is no safe or good way to remove entirely their political risks such as expropriation of assets.12 Some of the most persistent issues to crop up in trade disputes are the interpretation of certain words and what these are supposed to mean like in Canada v Australia (the difference between “potential” and “likelihood”).13 Literature Review and Analysis: The allegation that investment treaties have imperialistic functions has a long pedigree. Walde (1978) argued that “host countries” in agreements between transnational corporations and rich countries have often felt that terms were “imposed” on them when they had “highly unequal bargaining power” and need to be “revised” to allow them to retain its autonomy14. In 1953, Gallagher and Robinson argued in “The Imperialism of Free Trade” that a growing free trade consensus was for former imperial powers to retain control. And Howe in 1916 argued “dollar diplomacy” was about control and not trade. The idea of the financial internationalism tends to follow the path of economic and political least resistance, and that large countries (US, Europe, Japan) use their economic, trade and financial might to influence and re-arrange things in ways that are favourable to them. A clear resolution of disputes is needed considering that 75% of all global fund flows come from the private sector to domestic markets in developing countries.15 It does not seem likely, no matter how altruistic these countries were, that they would undermine their bargaining position and lock themselves into a deal that was not as good as they could get. Of course, others argue that investment treaties are ways to make the world flat, to distribute things more fairly and leads to better growth. The idea is that a rising tide raises all boats; investment treaties may cause the stakeholders to lose a bit or gain a little less and shake up some established elites or threaten some pampered workers; its ultimate idea is that prosperity flows from the rich to the poor, with richer countries being able to invest in developing countries and make money on their investment and gain a rate of reasonable return while lifting countries out of poverty. UNCTAD16 argues that any properly designed preferential trade agreement or PTA, as well as BITs, and proper host country policies, can raise foreign direct investments and help developing countries. Other writers claim there has been reduced inequality under economic integration; but numerous experts tend to disagree. There is a general consensus that inter-nation and intra-nation inequality has increased with the rich getting richer and the poor left behind. This is what “fair and equitable” treatment should mean: Rules, standards, compromises and ensuing interpretation and arbitration that serve to make the treaty into an instrument for the fair and equal benefit of all parties. But how well is this actually practised in international law? Bilaterals, a pro-labour watch group that critiques bilateral treaties, opines that in their view, investment treaties often served to increase repression of workers and argues, “increasing trade liberalization and the effects of globalization had resulted in job losses and far less secure employment in both industrialized and Third World countries. Attacks on workers' social welfare, healthcare and education benefits, as well as privatizations, labour market deregulation, resulted to higher unemployment and strong arm tactics against union organizing are rolling back many of the hard-won fruits of union struggle of all workers around the world and being locked in by international trade and investment agreements.”17 The International Labour Organization (ILO),18 has expressed quite repeatedly that they favour an international integration under the auspices of the UN but it has found that treaties might be forcing extremely unfavourable terms, which violate the “fair and equitable” spirit even as investments are being literally protected. As regards arbitration in particular, there are more frequent criticisms that unaccountable corporate boards or thinly-veiled legal proxies may be arbitrating in ways that are unfavourable to the needs of workers, citizens and the poor. There is a fear “that investment treaties are open invitations to unhappy investors, tempted to complain that a financial or business failure was due to improper regulation, misguided macroeconomic policy or discriminatory treatment by the host government and delighted by the opportunity to threaten the national government with a tedious expensive arbitration.19” To put it differently, the investors can falsely claim improper regulations when the real cause of an investment failure are either moral hazards, cost mark-ups or reliance on inflated or over-optimistic projections or even just to cash in on their political-risk guarantees. Either way, investors certainly do not want to lose their money even though it is their own fault. In essence, fair and equitable treatment is enshrined in the GATT-WTO trade rules as the so-called national treatment concept. In this concept, foreign investors and their investments are to be treated equally as domestic ones in the same context or in similar circumstances.20 What is a guiding principle in this concept is non-discrimination rule in WTO and international treaties.21 Fair and equitable treatment is based on the twin principles of non-discrimination and fairness. (Source: Bilaterals.org) Mr. Choudry points to the Ethyl Corporation v Canada case as a good example of the NAFTA arbitration “horror story.”22 The challenge is to find the right balance between an investor's rights and the rights of host states, which is the core issue on the law on foreign investments.23 There is also substantial fear unelected bodies such as the WTO, IMF, ICSID, various investor-favouring parts of the UN or the World Bank decide the fate of countries and overrule native legislation. This bias is not only perceived but observed in actual arbitration in which state consent as based on the investment treaty opens the door to claims by any business entity that claims it is a foreign entity and entitled to FET. The end result is that sovereign states are unable to predict and manage their potential liabilities arising from investor-state arbitration cases.24 The industries in which awards were made against states include mining, banking, energy, media and water.25 The problem has not been helped by most decisions of investors, who have often chosen paths that seem petty and are politically explosive. A panel of arbitrators appointed usually on a case-by case basis are the ones charged for delineating or limiting the policy space available to a government. In this connection, they have a lot of leeway. More importantly, and perhaps also a bit more ominously, tribunals mostly adopted an expansive pro-investor stance with regards to certain portions of the investment treaty in which it is silent or ambiguous. What it means is that tribunals rule in favour of investors when there is doubt on the meaning of any provisions.26 The prerogative to interpret this ambiguity has been mostly to favour the side of investors.27 The combination of the high level of success for investors and the large number of cases brought against the developing world seems to tacitly imply that the treaties are overwhelmingly oriented for the investors. Discussing “fair and equitable” protection of investment assets seems to be fairly ludicrous under these circumstances. Another common criticism is that “fair and equitable” treatment should have been a non-contingent type of absolute standard without all the extraneous clauses such as most favoured nation (MFN) status.28 In many bilateral agreements where a dispute cannot be settled amicably and procedures for settlement have not been agreed within a specified period, it can be referred to a body like the World Bank's private arbitration body for disputes, the International Centre for Settlement of Investment Disputes (ICSID) or the UN Commission on International Trade Law (UNCITRAL). NAFTA lets unhappy investors choose between the two and represents obvious privatisation of commercial justice. There is also the fear that there will be a “transplantation” of United States and other dominant legal systems into regions like Latin America29. FET was once relatively circumscribed in its use. But it has now achieved an immense centrality in international investment jurisprudence. Tribunals and commentators often deplore the vagueness and open-ended nature of FET30 and cast doubts on the predictability, coherence, and consistency of jurisprudence on this standard of treatment and on its normative content.31 Indeed, the “fair and equitable” standard, while narrowly accurate as it is designed to make sure that investors do get a fair and equitable treatment, is linguistically suspect because it implies the only maxim to follow if something is fair and equitable is if it is fair and equitable to investors. In his otherwise favourable review of the work of Tudor (2008),32 Schill (2008) further argues, Certainly, Tudor correctly identifies the importance and the power of arbitrators in the operation and application of FET...33What is missing in this context is a discussion of the impact that the creation of dispute settlement bodies and the individuals appointed to these positions have on application and operation of a specific field of international law and on the outcome of disputes.34 It is the work of the arbitrators to mould the FET standard into a balancing concept that accounts for mutual expectations of the parties. A question whether FET is a legal standard at all or merely an instrument which allows tribunals to make decisions ex bono et aequo.35 Critical analysis thus tries to focus, yet have failed to make a comprehensive review, of how arbitrations in this vein might be an attempt by investor coalitions to gain their hegemonic monopoly over the power to interpret and discharge the law and, more importantly, the ability to define normatively what the law should protect. “Fair and equitable treatment” clauses must be understood with this crucial backdrop and should be compared to how the rest of stakeholders in the treaty are being protected, if ever at all. Another critical question, yet to be truly answered in the legal scholarship community, is: What exact sort of law are investment treaties, and therefore what sort of norms should guide the arbitration procedures? On the other side of the aisle, there is fear that “fair and equitable” treaty standards, in light of the recent annulment decision of an arbitration award that was rewarded to Sempra Energy Int'l v Argentina underneath the framework of a U.S. - Argentina BIT, may have substantial “gaps” in them.36 The annulment committee used an Article XI “necessity” provision and noted that the interpretation of “necessity” in the treaty varied from the general international law; thus, the original decision, which was that the Argentineans had overstepped their bounds, was annulled. There is risk that U.S. BITs and FTAs from the 1980s and 1990s, such as the U.S.-Argentina BIT, give host states some leeway to abridge investors’ rights by claiming “necessity” or “economic crisis,” even where the crisis is one that the government played a role in creating. The risk of a “necessity” defence in U.S. BITs or FTAs is “self-judging,” or in layman's terms, self-serving, permitting the host states to evade liability for expropriation or for unfair measures merely by declaring that these measures were “necessitated” by national security or by a sudden “economic crisis” condition. Under the most “pro-state” view of this “self-judging” clause, the government may be able to evade liability for a BIT violation simply by declaring its measures were the product of “necessity,” without any third party or arbitral tribunal being able to review. This is why investors do not like to defend their investment rights before local courts of the host state as these courts are viewed as biased and very subjective in their opinions.37 Case Study: JAPAN Japan's foreign investments have been accompanied by immense growth in its framework that emphasizes “investment protection” both through BITs and so-called “Economic Partnership Agreements” or EPAs.38 “Historically, Japan has entered in fewer investment treaties than other investment-exporting countries.39 However, Japanese foreign direct investment increased in 2008 resulting, since 2002, in concerted efforts to conclude EPAs, specifically with the ASEAN and its member countries like Singapore, Thailand, Vietnam, Malaysia, the Philippines, Indonesia and Brunei, as well as beyond like, Korea, Mexico, Chile and Switzerland. EPA negotiations with India and Australia were conducted starting in 2007, and with the Gulf Cooperation Council, a number of Arab states including Bahrain and Saudi Arabia in mutual economic negotiations. One thing that sets aside Japan's treaty framework is their stick but not carrot, approach, which is regrettably not as common as it should be in the international system. Japan's foreign investment expansion is likely to result in investment disputes with host States. Fortunately, its greatly expanded treaty framework with its substantive protections and options for investor-State arbitration provides investors with nice options to "enforce" such protections, if really necessary. Should arbitration be initiated, ICSID may be a likely forum for Japanese investors not only due to the majority of Japanese investment treaties provide for it, but also because of its institutional and award-enforcement advantages. Its neighbour and economic giant China pursues the same policies but on the reverse side, since China is the second-largest recipient of FDI in the world,40 although Chinese laws are very unsystematic.41 Despite agreements to submit to the authority of the ICSID, many countries later on find it convenient to question the jurisdiction of the ICSID to handle their cases, similar to Genin v The Republic of Estonia.42 Another case about these proper jurisdictions is Matimak Trading Co. v A. Khalily in which Hong Kong is not considered a de facto state but as a mere territory of China.43 It is not surprising for one party (the losing side) to question the jurisdiction of a tribunal whenever the judgement goes against them.44 Japan does allow expropriation under four standards: “(a) for a public purpose; (b) on a non-discriminatory basis; (c) in accordance with due process of law; and (d) upon payment of prompt, adequate and effective compensation.” This is a fairly restricted standard and seemingly appropriate for both sides of the investment contract. But unfortunately, Japanese treaties have been critiqued on the grounds that its provisions for allowing a limited number of “nurses and caregivers” are a form of economic exploitation, taking advantage of the immense poverty of the regions it negotiates with (Bilaterals, 2009). “Some FTAs include provisions or agreements on labour mobility, such as deals which Japan has signed with Indonesia and the Philippines which permit for only a limited number of nurses and caregivers into Japan on a temporary basis, and its critics to argue such deals merely institutionalize the commodification, exploitation and trade in workers.45 Japanese insistence on using ICSID is based on pragmatic grounds as the use of domestic courts is often viewed as partial to the interests of the state; in developing countries, an absence of an independent judiciary makes pursuing the case in a local court impossible.46 CASE Study: NAFTA When NAFTA was introduced, it drew wide-ranging criticism that it was overwhelmingly pro-corporate, anti-labour, ecologically irresponsible and pro-investor47. Worse, even advocates had to concede that NAFTA would likely depress wages for the big majority of the population.48 NAFTA also brought up the spectre of the use of threats of capital flight by moving factories and ending jobs to prevent union organising and to depress wages. This use of other nations' poverty to try to create a “race to the bottom” is not fair or equitable, yet preventing it would actually be in violation of the provisions in BITs and investment treaties! There is a growing perception that free trade agreements (FTA) increasingly overlap with the jurisdiction of the WTO itself like in the Canada, European Communities v Japan case.49 Arbitration in the NAFTA case has helped assuage fears but it has been a rocky road.50 But NAFTA has clearly not triggered a siphoning of U.S. taxpayer dollars to Mexico or Canada. Only American investors have ever won damages under NAFTA's Chapter 11 and they have not won big. The real significance of NAFTA arbitration lies in its role as a trendsetter for all other high-stakes arbitration cases around the world. The US, Canada v European Communities case is an example of how contentious arbitrations can be.51 Fears of lack of transparency were initially confirmed, but over time, the documents were published and transparency improved. Ultimately, though, the fears of anti-globalization advocates remained perfectly justified, and as long as they remain, the system will need to move towards more equitable results, less nationalist favouritism, etc. Even if one rejects the most jaded criticisms of the Loewen Group v USA,52 the fact that they persist shows the need for independent judges to dispel appearances of self-dealing and for an appeals court to correct errors. Methanex v USA moved investor arbitration towards a more judicial model and hopefully this process will continue. To be fair though, most investors have to contend with various countries' different taxation laws when making plans.53 Conclusion “Fair and equitable” treatment is far from the norm; it has not been so good at protecting other stakeholders. Allegations of unfairness and injustice in legal process, at a systemic level, are not effectively countered by the record of arbitration. Investment protection is important, but so are the needs of everyone else. The role of the private sector in promoting economic development is important.54 Moreover, many of international laws pertaining to arbitration are still in a state of flux and many of these same principles are still evolving.55 The recent moves to grant the arbitrators sufficient leeway and jurisdiction has led to some surprising consequences; an example is the intrusion of commercial law into the regulatory sphere which in many minds properly belong to the states.56 Suggestions for improvement must include a balanced approach and takes more of the nature of a contract that safeguards the interests of investors but also upholds a right of a State to regulate foreign investment.57 In many cases, most investors prefer international arbitration as a viable and credible alternative to delays in the judicial systems over the world.58 There is always the suspicion of bias in the local courts which often extends to the arbitration tribunals but it is something that is very hard to prove.59 At present, the concept of “fair and equitable treatment” in investment treaties is largely illusory. There are proposals to improve the atmosphere and overall investment processes and arbitration of disputed cases. However, investors themselves must take the initiative the improve the FET.60 Bibliography André von Walter, “Balancing Investors' and Host States' Rights – What Alternatives for Treaty-makers?” in Marc Bungenberg (ed.) International Investment Law and EU Law (Springer, Heidelberg, Germany 2011). Andrea K. Bjorklund, Ian A. Laird and Sergey Ripinsky, Investment Treaty Law: Current Issues: Remedies in International Investment Law (Vol.3 British Institute of International and Comparative Law, London, UK 2009). Andrew Newcombe and Lluis Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Kluwer Law International, Netherlands 2009). Campbell McLachlan, Laurence Shore, Matthew Weiniger and Loukas Mistelis, International Investment Arbitration: Substantive Principles (OUP, Oxford, UK 2007). 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Peter Muchlinski, Multinational Enterprises and the Law (2nd edn Blackwell Publishers, Ltd., Oxford, UK 2007). R. Dolzer and C. Schreuer, Principles of International Law (OUP, Oxford, UK 2008). Raymond D. Bishop, James Crawford and Michael Reisman, Foreign Investment Disputes: Cases, Materials and Commentary (Aspen Publisher, Frederick, MD, USA 2005). Robert Pritchard, Economic Development, Foreign Investment and the Law: Issues of Private Sector Involvement, Foreign Investment and the Rule of Law in a New Era (Kluwer Law International, the Netherlands 1996). Shahrukh Khan and Jens Christiansen, Toward New Developmentalism: Market as Means Rather than as Master (Routledge, Oxon, UK 2011). Todd Weiler, International Investment Law and Arbitration – Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law (Cameron May, Ltd., London, UK 2005). Wenhua Shan, The Legal Framework of EU-China Investment Relations: A Critical Appraisal (Hart Publishing, Oxford, UK 2005). Wenhua Shan and Norah Gallagher, Chinese Investment Treaties: Policy and Practice (OUP, Oxford, UK 2009). William P. Streng and Jeswald W. Salacuse, International Business Planning: Law and Taxation (Bender Publishing, San Jose, CA, USA 1997). Journal Articles Carolyn B. Lamm, “Japan's Investment Treaty Framework” (Winter 2010), IDQ. C Schreuer, “Interaction of International Tribunals and Domestic Courts in Investment Law” [2008] ICSID Rev- FILJ 1-21 (Johns Hopkins University Press, Baltimore, MD, USA). C Chatterjee, “Suspicion of Bias versus Actual Bias in Arbitration: The Gallo Arbitration” [2010] 11 JWIT 6 (Werner Publishing Company Ltd., Geneva Switzerland 2010). Eric Gillman, “Legal Transplants in Trade and Investment Agreements: Understanding the Exportation of U.S. Law to Latin America” [2009] 41 Geo. J Int’l L. 263. 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Timothy Ross Wilson, “Trade Rules: Ethyl Corporation v. Canada (NAFTA Chapter 11) Part II: Are Fears Founded?” [2000] 6 NAFTA L. & Bus. Rev. Am. 205. Web Sites C Alfaro “Argentina: ICSID Arbitration And BITs Challenged By the Argentine Government” (article in Mondaq) accessed 28 March 2011. Bilaterals, “Labour” accessed 25 March 2011. International Labor Organization,“World Commission on the Social Dimension of Globalization” accessed 28 March 2011. Luke Eric Peterson, “Argentine Crisis Arbitration Awards Pile Up, But Investors Still Wait for a Payout” (personal article) accessed 28 March 2011 Michael D. Goldhaber, “Balancing Act” American Lawyer (Internet article) accessed 28 March 2011. Noam Chomsky, “Notes of NAFTA: 'The Masters of Man” The Nation (Internet article) accessed 28 March 2011. Skadden, “New ICSID Annulment Decision Exposes Possible Gap in United States Investment Treaty Protection” [memorandum] 19 July 2010. New York, USA accessed 28 March 2011. Supachai Panitchpakdi, The United Nations Conference on Trade and Development (UNCTAD), “The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries” (PDF) accessed 26 March 2011. Table of Cases Canada v. Australia, [1998] VIII AC 3327 (WT/DS18/AB/R) Canada, European Communities v. Japan [1996] I AC 97 ( WT/DS8-10-11/AB/R) Ethyl Corporation v Canada, [2000] 6 NAFTA L. & Bus. Rev. Am. 205 Genin v Republic of Estonia, ICSID Case No. ARB/99/2 Loewen Group v USA, Case No. ARB (AF/98/3) Hong Kong, Matimak Trading Co. v Khalily, [1997] 118 F.3d 76 (D.A.Y. Kids Sportswear, Inc.) International Court of Justice, “Namibia: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276” (Advisory Opinion) [1971] ICJ Rep 16 Portugal v. Australia, (Dissenting Opinion of Judge Skubiszewski) [1995] ICJ Rep 90, para 125 (East Timor) Sempra Energy Int'l v Argentina, No. ARB/02/016, Award 185 (ICSID Sept. 28, 2007) (Sempra I) United States Canada v. European Communities [1998] I AC 135 (WT/DS26-48/AB/R) Table of Authorities General Agreement on Tariffs and Trade (GATT 1947) (Adopted 30 October 1947, entered into force 1 January 1948) 55 UNTS 194 General Agreement on Tariffs and Trade (GATT 1994) (Adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 187 International Centre for Settlement of Investment Disputes (ICSID) International Monetary Fund (IMF) North American Free Trade Agreement (NAFTA - 1994). UN Commission on International Trade Law (UNCITRAL). World Bank (WB) World Trade Organization (WTO) Read More