Asia

Asian countries have signed over 1100 international investments agreements, most of which include the investor-state dispute settlement (ISDS) mechanism.

The Association of South-East Asian Nations or ASEAN (formed of Brunei, Burma, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, Vietnam) also provides investor protection under the ASEAN Comprehensive Investment Agreement (ACIA) which was adopted in 2009.

In addition, new trade deals with ISDS provisions currently concern the region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP).

The TPP was sealed in October 2015 between Australia, Canada, Chile, Mexico, New Zealand, Peru, the United States and five Asian countries: Brunei, Japan, Malaysia, Singapore and Vietnam. Indonesia and Taiwan have claimed their intention to join in. The treaty has yet to be ratified.

The investment chapter has revealed the deal includes the investor-state dispute settlement (ISDS) mechanism that would give foreign investors the right to bypass national courts and resort to a parallel system of justice specifically made for them.

RCEP is currently being negotiated between the Asian states of Brunei, Cambodia, China, India, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines, Singapore, South Korea, Thailand and Vietnam with Australia and New Zealand.

Although still under negotiations, RCEP has been reported to include ISDS provisions. Korea and Japan have submitted proposals likely to be similar to those in their own bilateral agreements and in the TPP text. India should table a different offer.

The Indian government has been considering a revised comprehensive model of bilateral investment treaty (BIT) that would reduce investor rights, compared to other versions of ISDS. An investor would have to exhaust all local remedies before initiating international arbitration. The model BIT is expected to exclude matters relating to government procurement, taxation, subsidies, compulsory licenses and national security.

India has been the most targeted country in the region, with about 15 disputes - the vast majority of which were initiated by West European countries.

End of 2014, Sri Lanka also announced its intention to move away from traditional models of BIT. It quoted thin relationship between BITs and foreign direct investment, past ISDS disputes and the tendency for BITs to constrain domestic policy space as reasons. Sri Lanka favours the enactment of appropriate domestic legislation to protect foreign investment.

In early 2014, Indonesia announced plans to terminate 67 of its BITs, former president Yudhoyono arguing he did not want multinational companies to pressure developing countries. Indonesia is now in the final stage of finalizing a new model of BIT. The country is currently facing a billion-dollar dispute from UK-listed Churchill Mining and a new US$600 million claim from the Indian mining investor India Metals & Ferro Alloys.

(November 2015)

| 8-Nov-2013
The federal government, which is facing financial crisis and seeking loans from IMF and other financial institutes, is willing to pay Rs90 million to a Pakistani law firm to plead its case in an international court.
| 2-Nov-2013
Pakistan has landed in hot waters following the provisional decision of ICSID (international court for settlement of investment disputes) announced on October 16 which says that government of Pakistan should allow the Karkey’s vessel based power generation unit to move from Karachi port, as Supreme Court’s verdict is quite vivid that says that unless and until Karkey gives $ 128 million to Pakistan it cannot be allowed to leave the port, Pakistan Observer has learnt reliably.
| 3-Aug-2013
We are told that when trade is free, there will be more trade and nations will prosper. To achieve even freer trade the nations of the world must enter into free trade agreements.
| 31-Jul-2013
Malaysia’s Parti Keadilan Rakyat VP Nurul Izzah Anwar has accused the Ministry of International Trade and Industry of bowing down to pressure when it agreed to clauses on investor-state dispute settlement in negotiations for the Trans Pacific Partnership (TPP) agreement.
| 20-Jul-2013
The Turkish power firm Karkey Karadeniz Elektrik Uretim (KKEU) has approached the Washington based International Centre for Settlement of Investment Disputes (ICSID) against Pakistan’s water and power ministry and also served a Rs33billion damage notice on the ministry, sources said on Wednesday.
Bloomberg | 3-Jul-2013
Japan Tobacco Inc., Asia’s biggest listed cigarette maker, sued the government of Thailand over a plan to increase the size of health warnings on cigarette packages, claiming the move is unconstitutional.
The News | 18-Jun-2013
A Turkish power generation company has filed a case against the Pakistan government at ICSID for compensation of losses worth 700 million dollars
Eleven Myanmar | 1-Jun-2013
International experts have warned that the use of investment treaty ‘Investor-State Dispute Settlement (ISDS)’ for attracting foreign investments into Myanmar is risky as it grants the investors the right to initiate dispute settlement proceedings against the government under international laws.
| 10-May-2013
Tethyan Copper Company (TCC), a joint venture between Canada’s Barrick Gold and Chilean miner Antofagasta, has given up hope of eventually mining Reko Diq, a disputed but promising copper-gold project in Pakistan’s poorest region, Reuters news agency reported on Wednesday.
First Post | 18-Apr-2013
India’s Finance Minister P Chidambaram has made it clear that any bilateral investment protection agreement has to be subject to jurisdiction of domestic legal institutions and India will not allow it to be subjected to foreign courts or tribunals.

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