Asia

Asian countries have signed almost 2000 international investment agreements, most of which include the investor-state dispute settlement (ISDS) mechanism that gives foreign investors the right to bypass national courts and resort to a parallel system of justice specifically made for them.

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 which was adopted in 2009.

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP or TPP for short) includes ISDS provisions with a carve-out for tobacco control measures.
TPP was signed on 7 March 2018 between 11 Pacific Rim countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. It went into force on 30 December 2018 among the members who have ratified it. The US withdrew from it in January 2017.

The Regional Comprehensive Economic Partnership (RCEP) is a proposed mega regional trade deal. It is currently being negotiated between the Asian states of Brunei, Cambodia, China, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines, Singapore, South Korea, Thailand and Vietnam with Australia and New Zealand. India pulled out of RCEP in December 2019.

RCEP originally included ISDS, but following opposition from civil society groups and some governments, negotiators agreed to exclude it in September 2019. However the negotiating states said they will look into it again at a later stage and assess whether or not to include it.

India has been the most targeted country in the region, with 25 known disputes - the majority of which were initiated by West European countries. Turkey has been the most frequent home state for investors, with 35 cases.

In July 2019, Pakistan was ordered to pay over US$5 billion to Chilean and Canadian investors (Antofagasta and Barrick) which had brought an ISDS claim against the country using the Australia-Pakistan bilateral investment treaty. The case involved a gold and copper mine, for which an exploration permit had been denied. The mining companies had only invested about US$200 million.

Several governments in the region have said they would reform the mechanism. At the end of 2014, Sri Lanka announced its intention to move away from traditional models of BIT. It cited the 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 that it would terminate 67 of its BITs. Former president Yudhoyono argued that he did not want multinational companies to pressure developing countries. 21 BITs were terminated in 2015. Indonesia has drafted a new model of BIT, but it hasn’t been adopted yet.

In December 2015, India released a revised model BIT which, for instance, requires investors to exhaust domestic remedies (Indian courts) before turning to international arbitration and leaves out “fair and equitable treatment” provisions. Consequently India sent notices to 58 countries terminating or not renewing BITs that had expired. In January 2020, it signed a BIT with Brazil that excludes ISDS and favours dispute prevention as well as state-to-state dispute settlement.

(April 2020)

Live Mint | 19-Mar-2013
The aggressive push by India’s tax department to increase revenue has prompted several multinational companies to informally seek the views of lawyers and consultants about invoking bilateral investment promotion and protection agreements to resist the government’s demands for more money.
| 20-Feb-2013
Amidst continuing violence plaguing Balochistan, there is now a cause of joy for the Baloch people and the government.
| 18-Feb-2013
Lawsuits are seen as the inevitable next step if plain packaging of cigarettes is brought in. The government will announce a decision on the matter in the next few days.
| 5-Feb-2013
Earlier last month, a three-member bench of the Supreme Court headed by Chief Justice Iftikhar Chaudhry declared null and void the Reko Diq gold and copper mine agreement, the Chagai Hills Exploration Joint Venture Agreement (CHEJVA), with Tethyan Copper Company (TCC).
| 5-Feb-2013
The Supreme Court recently declared void and illegal a mining deal for the Reko Diq copper project signed 20 years ago between the Balochistan government and international mining companies.
Kyunghyang Shimun | 1-Feb-2013
The Korean government is fighting a ISD suit by US based private equity fund Lone Star. The ISD suit was established through Lone Star’s paper company in Belgium and initiated through an investment treaty between Belgium and South Korea.
Kyunghyang Shimun | 1-Feb-2013
The article discusses a blunder in the Korean government in failing to include an anti-paper company clause that is now allowing companies to use the Belgium investment treaty as a backdoor for ISD suits.
The Hindu | 22-Jan-2013
In a significant development, the Government of India has ordered a freeze of all Bilateral Investment Protection Agreements (BIPA) negotiations till a review of the model text of BIPA is carried out and completed. This follows a spate of show cause notices on the Government by foreign companies seeking to recover their investments under the agreement.
Xinhua | 21-Jan-2013
The finance ministry said that the South Korean government rejects Lone Star’s accusations regarding this dispute, noting that the government has been preparing for trial. It added that the government will pay full attention to the arbitration proceedings and will aggressively defend its self against Lone Star’s unjust accusations.
| 16-Jan-2013
It is wonderful that the stance of the government of Balochistan has been upheld by the Supreme Court (SC) of Pakistan. Decision given on 7th January, 2013 by the SC has declared the agreement on Reko Diq signed on July 23, 1993 as void and in conflict with the laws of the country. Tethyan Copper Company Pvt Limited (TCC) also lost its case in the International Centre for Settlement of Investment Disputes (ICSID) on December 13, 2012.