Friday, May 26, 2017
On May 18, 2017, Robert Lighthizer, the US Trade Representative, officially notified Congress concerning plans to renegotiate NAFTA. Congress has 90 days of domestic consultation before negotiations between the US, Canada and Mexico can begin.
Rather than focusing broadly on the potential areas for renegotiation, however, I wanted to introduce some of the interesting developments in investment treaties, which are at least peripherally relevant to NAFTA’s (in)famous Chapter 11 on investment. Since the negotiation of Chapter 11 in 1993, international investment law has evolved considerably while growing in importance, with the pro-investor enthusiasm of the 1990s giving way to a degree of sovereign concern over the investor-state dispute settlement mechanism (ISDS).
Today, the future of the traditional bilateral investment treaty (BIT) is uncertain, as countries terminate and renegotiate their agreements with other states. Notably, in early May, Ecuador’s legislature voted to terminate Ecuador’s remaining BITs, on the basis that Ecuador had not benefitted from foreign direct investment due to the BITs, instead experience disproportionally high costs as a result of ISDS.
Ecuador is far from alone, with other countries, including South Africa, Indonesia and India looking to exit or renegotiate investment agreements on favorable terms. So what comes next? What can we expect future investment treaties to look like?
Perhaps most instructive in evaluating the future of investment treaties for developing countries that are looking for a more equitable bargain between themselves and the states that provide most of the private foreign direct investment is the model India BIT, which was released in January 2016.
India’s model BIT departs from a number of standard provisions in significant ways. In particular, it requires exhaustion of domestic remedies for five years before investor state arbitration may be pursued (Article 15.2). Additionally, there is no umbrella clause (which has been controversial in some formulations in extending the scope of the BIT to contractual relationships between states and private investors), nor is there an MFN clause. What there is that has not previously appeared in BITs (and for those of us who are trade law geeks this is particularly exciting) is a general exception clause (Article 32), not dissimilar to Article XX of the GATT. Exceptions include protecting public morals, protecting human, animal or plant life or health, and protecting the environment.
The model BIT also includes a corporate social responsibility provision (Article 12), which states that investors and their enterprises “shall endeavor to voluntarily incorporate” corporate social responsibility standards. While this is a soft law provision, it is a step in the direction of requiring investors to hold up their end of the bargain in providing benefits to the host country. This shift in the power dynamic, with previous BITs heavily favoring investors, is also reflected in the definition of investment in the model BIT. Under the model BIT definition of investment, the enterprise is required to have characteristics of an investment, including “a significance for the development of the Party in whose territory the investment is made”. Economic development is one of the elements in the Salini test, and one that has given rise to the most divergence of opinion by subsequent arbitral tribunals. For a very thorough and insightful analysis of the model BIT, see Grant Hanessian and Kabir Duggal’s recent article in ICSID Review.
Going back to the US, from a US perspective, how NAFTA will be renegotiated is likely to depend in part on the Canadian government’s position with respect to Canada’s recently agreed free trade agreement with the EU, the Comprehensive Economic and Trade Agreement (CETA). In CETA, the EU and Canada agreed to replace traditional ISDS with a permanent investment court system, the first step in an ambitious plan by the EU to replace ISDS in all of its investment agreements with a more transparent, multilateral judicial system that would include an appellate level of review.
If Canada were to choose to push for adherence to a multilateral investment court system in the renegotiation of NAFTA, it seems unlikely that the parties would reach agreement, given the distrust of the current administration, and Lighthizer in particular, of multilateral dispute settlement systems that would impinge on national sovereignty.
In the midst of all of this discussion of renegotiation, we shouldn’t forget that the negotiations of the Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU have not been called off, although they are on hold. As with CETA, the EU has moved away from ISDS and towards the multilateral investment court model in TTIP, in part a result of increasing Member State concerns regarding ISDS.
As for the EU push towards a multilateral permanent investment court, it appears that any such mechanism will now require the buy-in of all of the Member States. A recent European Court of Justice ruling in relation to the EU-Singapore free trade agreement found that the EU lacks exclusive competence to conclude deals that involve dispute settlement between investors and states, while having exclusive competence with respect to most other areas. This means that before CETA can come into force, the EU Member States will have to unanimously agree to the new dispute settlement mechanism. The same goes for TTIP, if it is ever finalized and if such a dispute settlement system is included in the agreement.
As with so many other areas of law and politics, the international investment regime is today in a state of flux, just as some sense of the state of investment law was emerging from the jurisprudence of the ad hoc arbitral tribunals after several decades of arbitration awards. A recurring theme has been the lack of consistency in these arbitral awards and allegations of unfair biases towards developing countries who have borne the brunt of the financial costs in these awards. (See Rob Howse’s fantastic paper providing a conceptual framework for international investment law and arbitration.) These factors are driving the international investment regime to seek out new treaty language and alternative models for resolving disputes between states and investors.
The renegotiation of NAFTA is unlikely to do much to move the world of international investment law forward. The most likely outcome is something not too dissimilar to the text of TPP. Where we are likely to see significant developments is in renegotiated BITs between developing countries and other states (and amongst themselves) and in the EU push for a multilateral investment court. India's model BIT may be the beginning of a trend that profoundly changes the substance of these agreements and the face of investment law itself. In parallel, the EU is reenvisioning how dispute settlement should operate in relation to investment disputes. Both of these efforts would bring greater balance to a system that has historically favored investors over states, even to the detriment of legitimate domestic regulatory policy.