Agricultural Investments and International Arbitration Joe Zang, Marquita Davis and Carin Smaller March, 2015
Dec 24, 2015
Agricultural Investments and International Arbitration
Joe Zang, Marquita Davis and Carin SmallerMarch, 2015
CONTENTS
• International arbitration: what?
• Facts & figures• Agriculture cases that IISD is
aware of• What government measures
are being challenged? • Main concerns with
international arbitration• Conclusions
1. International arbitration – what?
• Definition: Foreign investors can file claims against states to resolve disputes arising under investment treaties, contract or domestic law.
• Known as investor-state dispute settlement (ISDS).
3. Agriculture cases that IISD is aware of: 25
1981-1985
1986-1990
1990-1995
1996-2000
2001-2005
2006-2010
2011-2014
0
1
2
3
4
5
6
7
8
9
Analysis of 25 International Agricultural Investment Related Disputes Filed Since 1981*
- number of cases per period of 5 years
* Data collected from ICSID, IAReporter.com, ITAlaw.com
3. Agriculture cases that IISD is aware of: sub-sectors
* Data collected from ICSID, IAReporter.com, ITAlaw.com
Fisher
y
Food pro
cessi
ng
Forestr
y
Land
Pestic
ide M
anufactu
re
Poultry
Sugar
0
1
2
3
4
5
6
Analysis of 25 International Agricultural Investment Related Disputes Filed Since 1981*
- number of cases per sub-sector
4. What government measures are being challenged?
• Reducing or terminating concessions
• Withdrawing licences or permits• Land reform/redistribution • Promoting national economic
development (employment, tech transfer, taxes)
• Environmental laws (use of chemicals)
• Regulatory action in times of crisis or to comply with other international agreements
• Ag policies (import restrictions, tax, quotas)
5. Main concerns with international arbitration
• Expansive scope• Many cases unknown
because of lack of transparency
• Cost• No right of appeal
6. Conclusions
• This is just the beginning• Can undermine efforts to
promote responsible agricultural investment
• Need carefully drafted domestic laws, contracts and treaties to safeguard policy space
• Domestic courts and mediation as the first forum of choice