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AIM: Ecuador Shows There Are International Precedents For Countries Quitting Oppressive "Free Trade" Agreements
The Aotearoa Independence Movement (AIM) is a campaign initiated by the Campaign Against Foreign Control of Aotearoa - CAFCA - (with others invited to join) to drive a nationwide dialogue to advance the case for a non-aligned Aotearoa based on policies of economic, military and political independence. More details on AIM can be found here.
One of the first areas that AIM will be focusing on is that of "free trade" and investment agreements (think TPPA and all of the other acronymic inhabitants of that particular swamp).
New Zealand governments, whether National or Labour, have been among the world's most zealous disciples of this cult.
Supporting what are totally misleadingly called "free trade" agreements has been a central plank of the governing ideology in this country for decades.
We are told that such agreements are good for the country and, more threateningly, there would be "consequences" if we dared to get out of them.
Well, actually, there are very recent international precedents where countries have taken a good hard look at the supposed benefits of such agreements, discovered that the evidence doesn't hold up, and cancelled those agreements forthwith.
Ecuador is an excellent current example (although not the only one). It set up a Citizens Commission on the subject, which recommended that Ecuador quit such agreements, and the Government acted on that advice.
This is a timely reminder to New Zealanders that there are a myriad of options when it comes to NZ reassessing its place in the world. "There Is No Alternative" is hogwash.
The below is from the Transnational Institute (TNI) in Europe.
Murray Horton
Spokesperson, AIM
Ecuadorian Citizens Commission on Investment Protection (CAITISA)
The Ecuadorian Citizens’ Commission for a Comprehensive Audit of Investment Protection Treaties and of the International Arbitration System on Investments (CAITISA) was set up by the Ecuadorian government to audit the country's investment treaties and make recommendations to the Government.
The commission was comprised of Government officials, academics, lawyers and civil society groups, including the foremost expert on investment law, Muthucumaraswamy Sornarajah and the former Attorney General for Argentina, Osvaldo Guglielmino. Our own TNI researcher Cecilia Olivet was nominated President.
In May 2017, the Commission's report was published and its recommendations to terminate the country's Bilateral Investment Treaties accepted by the Government
Ecuador Terminates 16 Investment Treaties
Transnational Institute,18/5/17
On May 16, President Correa of Ecuador signed decrees terminating 16 Bilateral Investment Treaties (BITs), including with the US, Canada, China and eight European countries.
The decision follows the recommendation of the Ecuadorian Commission that audited the country's Investment Protection Treaties (CAITISA).
The President of the CAITISA Commission Cecilia Olivet (a researcher at the Transnational Institute) commented "Ecuador has taken a sound decision by terminating its investment protection agreements. The auditing process revealed that these treaties not only failed to attract additional investment or advance the country's development plan, they also diverted millions of dollars of Government money to fighting costly lawsuits. We hope other governments will learn from Ecuador’s example and review their own investment agreements to find out if they are truly beneficial to their citizens".
The 12-person CAITISA commission was set up in October 2013 and was comprised of Government officials, academics, lawyers and civil society groups, including the foremost expert on investment law, Muthucumaraswamy Sornarajah and the former Attorney General for Argentina, Osvaldo Guglielmino.
Treaties were terminated with: China, the Netherlands, Germany, the UK, France, Spain, Italy, Sweden, Switzerland, Canada, the United States, Argentina, Bolivia, Peru, Venezuela, and Chile.
The decrees are available here (in Spanish). The key findings and recommendations from the CAITISA report are available here (in Spanish)
Summary of CAITISA's report key findings:
1.The Bilateral Investment Treaties (BITS) signed by Ecuador failed to deliver promised foreign direct investment:
- Ecuador, which has more BITS than many countries in the region, only received 0.79% of global FDI that flowed to Latin America and the Caribbean
- The principal sources of FDI flows into Ecuador are from Brazil, Mexico and Panama, none of which have a BIT with Ecuador
- Of the 7 largest foreign investors in Ecuador, only 23% come from a country which has a BIT signed with Ecuador.
2. Ecuador’s BITs contradict and undermine the development objectives laid out in the the country’s constitution and its National Plan for Living Well (Buen Vivir). The Ecuadorian Constitution of 2008 in its articles 3, 276, 277, 283, 284, 313-318, 339, 222 requires the State to regulate foreign investment to ensure it plays a positive role in achieving the country’s Living well Plan. However, BITS include clauses that erode these State competencies.
3.While promises of investment and development have failed to materialise, the costs for Ecuador have been immense with investors disproportionately benefiting in cases against Ecuador:
- Ecuador has faced 26 cases in international tribunals based on the Bilateral Investment Treaties
- In 2014, Ecuador was fifth in the world in terms of investment protection arbitration cases; today it is in tenth place
- In the 15 cases where the tribunal has made judgements on jurisdiction, the investor has been favoured in 13 cases (87%) and the State only twice.
4. A total of $21.2 billion dollars has been demanded as compensation from Ecuador by corporations for supposed violation of investment protection agreements.
5. The total amount disbursed so far by the State has been $1.498 billion dollars, equivalent to 62% of health spending.
6. Of the cases that are currently open, the State runs the risk of having to disburse $US13.4 billion. This is equivalent to 52% of the General State Budget for 2017.
Summary of CAITISA's key recommendations:
1 - Termination of all bilateral investment treaties
2 - Negotiation of new instruments between the State and Investors such as:
a) international investment contracts with restricted rights and investor’s obligations
b) Investment treaties based on an alternative investment model. The Commission has made the recommendation to:
- highly restrict the definition of investment
- exclude certain rights for investors commonly found in investment treaties such as: FET, indirect expropriation, national treatment, most favoured nation, umbrella clause, survival clause.
- a list of rights for the State that would be included, such as: rights of the State to impose obligations to foreign investors, apply performance requirements, impose taxes, secure technology transfer, force investors to respect human rights, among others.
- key obligations for the investor, such as: respect for national and international human and social rights, contribute towards national development according to pre-determined criteria, among others.
3 - Regarding the international investment arbitration system
- Exclude investor-State dispute settlement mechanism from any future treaty
- Provide legal security to investors in national courts
4 - Develop a comprehensive national policy and specific rules for foreign investment.
5 - Consolidate the powers and the institutional governance of foreign investment in one agency
From Ecuadorian Citizens Commission on Investment Protection (CAITISA) (www.tni.org)
Campaign Against Foreign Control of Aotearoa,
P.O. Box 2258
Christchurch.