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The Declaration of the 1st Ministerial Meeting of the Latin American States Affected by transnational interests

Published online by Cambridge University Press:  20 January 2017

Eduardo Silva Romero  and
Ana Carolina Simões E Silva
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Extract

In the past decade, Latin American States have begun to voice strong criticisms of the existing system for the settlement of disputes between foreign private investors and States through international arbitration based on investment treaties. Since the end of the nineties, said system has undergone an extraordinary development due to the direct right of action granted to foreign investors by investment treaties. Indeed, the great majority of the thousands of investment treaties existing today not only grant substantive protection to investments made by investors of one State party in the territory of the other State party to the treaty, but also contain investor-State dispute settlement provisions allowing investors to initiate arbitration proceedings against host States for an alleged breach of the treaty by the State. The practice of arbitration based on investment treaties has, however, generated many difficulties with respect to both the arbitral tribunals’ application of the substantive protections provided for in the treaties and to the functioning of the arbitration proceedings. In response to those difficulties, Latin American States are seeking to set up regional legal and political cooperation initiatives to create alternatives to the existing system. The Declaration of the 1st Ministerial Meeting of the Latin American States Affected by Transnational Interests (Declaration) adopted in Guayaquil, Ecuador on April 22, 2013 is one recent example of such initiatives.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 6 , December 2013 , pp. 1321 - 1326
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the Government of Ecuador Web site (visited November 11, 2013), http://cancilleria.gob.ec/wp-content/uploads/2013/04/22abr_declaracion_transnacionales_eng.pdf.

1 The term “investment treaty” encompasses both bilateral investment treaties (BIT) and bilateral and/or multilateral free trade agreements containing an investment chapter that is similar in content to bilateral investment treaties.

2 Declaration of the 1st Ministerial Meeting of the Latin American States Affected by Transnational Interests, Apr. 22, 2013 [hereinafter Declaration], http://cancilleria.gob.ec/wpcontent/uploads/2013/04/22abr_declaracion_transnacionales_ eng.pdf.

3 In particular, two investment treaties’ standards are criticized as being broad and vague: “indirect expropriation” (i.e., measures tantamount to expropriation) and “fair and equitable treatment.” In an attempt to limit the notion of “indirect expropriation,” the States Parties to the Central America-Dominican Republic-United States Free Trade Agreement, DR-CAFTA—which contains a Chapter on Investment—included the following provision in Annex 10- C of the Treaty: “The Parties confirm their shared understanding that . . . [e]xcept in rare circumstances, non discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.” See Central America-Dominican Republic-United States Free Trade Agreement Annex 10-C, Aug. 5, 2004 [hereinafter DR-CAFTA], http://www.sice.oas.org/Trade/CAFTA/CAFTADR_e/CAFTADRin_e.asp. Also, in response to the broad and vague character of the “fair and equitable treatment” standard, the DR-CAFTA States attempted to define it. See id. at art. 10(5) (“Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security. For greater certainty [the previous paragraph] prescribes the customary international minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investments. The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. The obligation . . . to provide ‘fair and equitable treatment’ includes the obligation 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 . . . .”). The DR-CAFTA countries are: the United States and Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and the Dominican Republic. Id. at Preamble.

4 The criticism against investment treaties has been expressed not only by Latin American States such as Venezuela, Bolivia, and Ecuador, but also Australia, South Africa, and India. See Cecilia Olivet, Estados en la Cuerda Floja Cuestionan los Tratados de Inversion, Comercio e Inversiones (May 22, 2013), http://www.tni.org/es/article/estados-en-la-cuerda-floja-cuestionan-los-tratados-deinversion. For example, after having been sued by Philip Morris Asia under the Australia-Hong Kong BIT for its public health regulations directed at cigarettes, the Australian Government raised many criticisms with regard to the protections offered to investors in investment treaties and announced that it will no longer include investor-State arbitration clauses in its investments treaties. According to the Australian Government, investment treaties jeopardize the State’s ability to determine its own public policy in key areas, such as health and environment protection. See Leon E. Trakman, Investor-State Arbitration or Local Courts: Will Australia Set a New Trend?, 46 J. World Trade 83, 83-120 (2012).

5 See, e.g., ALBA-TCP, Special Resolution about arbitration and multinationals Annex 2.3., July 30, 2013, http://www.albatcp.org/en/contenido/anexx-23-special-resolution-arbitrationand-transnational-companies-30-july-2013. The ALBATCP member States are, to date: Venezuela, Cuba, Bolivia, Nicaragua, Dominica, Ecuador, Saint Vincent and the Grenadines, Antigua and Barbuda, and Santa Lucia.

6 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, March 18, 1965, 575 U.N.T.S. 159 [hereinafter the ICSID or the Washington Convention], available at https://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf. To date, three countries have withdrawn from the ICSID Convention: Bolivia in 2006, Ecuador in 2009, and Venezuela in 2012. See Press Release, ICSID, Bolivia Submits a Notice under Article 71 of the ICSID Convention (May 16, 2007), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=OpenPage& PageType=AnnouncementsFrame&FromPage=NewsReleases &pageName=Announcement3; Press Release, ICSID, Ecuador Submits a Notice under Article 71 of the ICSID Convention (July 9, 2009), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=OpenPage&PageType= AnnouncementsFrame&FromPage_NewsReleases&pageName=Announcement20; Press Release, ICSID, Venezuela Submits a Notice under Article 71 of the ICSID Convention (Jan. 26, 2012), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=OpenPage&PageType=AnnouncementsFrame&FromPage=Announcements&pageName=Announcement100.

7 In 2008, Venezuela denounced the BIT entered into with the Netherlands. See Luke Eric Peterson, Venezuela Surprises the Netherlands with Termination Notice for BIT; Treaty Has Been Used by Many Investors to “Route” Investments into Venezuela, Inv. Arb. R. (May 16, 2008), http://www.iareporter.com/articles/20091001_93. That same year, Ecuador launched a process to denounce various BITs and thus denounced the BITs concluded with the Dominican Republic, El Salvador, Nicaragua, Cuba, Guatemala, Honduras, Uruguay, Paraguay, and Romania. In 2010, Ecuador launched a second wave of BIT denunciations, involving treaties with thirteen countries (Argentina, Canada, Chile, China, Finland, France, Germany, the Netherlands, Sweden, Switzerland, the United Kingdom, the United States, and Venezuela). To date, of these thirteen Ecuadorian BITs, only one has been denounced (Finland). The denunciation of four BITs (France, Germany, Switzerland, and the United Kingdom) has been approved by the National Assembly, but Ecuador’s President Rafael Correa has not notified the countries involved. See UNCTAD, Denunciation of the ICSID Convention and BITs: Impact on Investor-State Claims 1 (2010), http://unctad.org/en/docs/webdiaeia20106_en.pdf; Sebastian Perry, Ecuador Moves to Terminate Treaty with US, Global Arb. Rev. (March 12, 2013), http://globalarbitrationreview.com/news/article/31403/ecuador-moves-terminate-treaty-us (attaching a table detailing the current status of Ecuador’s BITs). In 2010, “the Government of Bolivia [. . .] delivered to the United States a notice of termination for the bilateral investment treaty between the two countries, a termination that will take effect on June 10, 2012. As of June 10, 2012, the treaty will cease to have effect except that it will continue to apply for another 10 years to covered investments existing at the time of termination.” See Notice of Termination of United States-Bolivia Bilateral Investment Treaty, 77 Fed. Reg. 30,584, 30,584 (May 23, 2012) (Pub. Notice 7893), http://www.gpo.gov/fdsys/pkg/FR-2012-05- 23/pdf/2012-12494.pdf.

8 The ALBA-TCP is defined as “an integration platform for the countries of Latin America and the Caribbean. It puts emphasis on solidarity, complementarity, justice and cooperation, which has the historical and fundamental purpose to join the capacities and strengths of the countries comprising it, in a view to producing the structural transformations and the relations system necessary to achieve the integral development, required for the continuity of our existence as sovereign and just nations. Additionally, it is a political, economic, and social alliance in defense of the independence, self-determination and the identity of the peoples comprising it.” See ALBA-TCP, ALBA-TCP (2010), http://alba-tcp.org/en/contenido/alba-tcp-eng. See also ALBA-TCP Agreement, Apr. 29, 2006, http://alba-tcp.org/en/contenido/alba-tcp-agreement-0.

9 See, e.g., Agreement for the Creation of the Economic Space of ALBA-TCP art. 2, Feb. 5, 2012 [hereinafter ECOALBA-TCP], http://www.alba-tcp.org/en/contenido/agreement-creationeconomic-space-alba-tcp-ecoalba-tcp (“The [ECOALBA-TCP] supports the nationalization and recovery of companies and natural resources to which the peoples are entitled, establishing legal defence mechanisms for the same [and] seeks foreign investment that respects the laws of, reinvests the profits in and settles any discussion with the State like any national investor. Foreign investors may not sue National States or Governments because they develop public interest policies”). To date, only Venezuela, Nicaragua, and Bolivia have ratified the ECOALBA-TCP. 10 The UNASUR Member States are, to date: Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, and Venezuela. On May 23, 2008, the twelve heads of State of the UNASUR’s member States signed the UNASUR Constitutive Treaty constituting the UNASUR as an organisation with international legal status. The Constitutive Treaty entered into force on March 11, 2011, following its ninth ratification by a signatory State in accordance with its Article 26. By December 14, 2011, the twelve signatory States had ratified the UNASUR Constitutive Treaty. See Constitutive Treaty of the Union of South American Nations, May 23, 2008, http://www.unasursg.org/uploads/0c/c7/0cc721468628d65c3c510a577e54519d/Tratado-constitutivo-english- version.pdf.

11 The representatives of the other five States (Argentina, Guatemala, El Salvador, Honduras, and Mexico) that participated in the Conference as guests took note of the Declaration and will make the content known to their respective governments.

12 Declaration, supra note 2, ¶ 1.

13 Id. ¶ 2.

14 Id. ¶ 3.

15 Press Release, President Nicolás Maduro, Cancilleres de Venezuela y Ecuador Analizaron Estrategias Sobre Arbitrajes Internacionales (Aug. 20, 2013), http://www.nicolasmaduro.org.ve/internacionales/cancilleres-de-venezuela-y-ecuador--analizaron-estrategias-sobre-arbitrajes-internacionales/. At the time of this writing, there is no available information as to the date of the Second Ministerial Meeting of Latin American States Affected by Transnational Interests.

16 Declaration, supra note 2, ¶ 5.

17 Id. ¶ 4.