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)

The Hindu | 20-May-2022
Ras Al-Khaimah Investment Authority’s claim that non-supply of bauxite from Visakhapatnam was in breach of the Bilateral Investment Treaty between India and the UAE was dismissed by the International Dispute Resolution Centre.
El Sol de Mexico | 12-May-2022
El monto representa apenas tres por ciento de la suma que POSH reclamó a México desde 2018, de 227 millones de dólares.
Mongabay | 11-May-2022
Citing the free-trade agreement between Australia and Thailand, Kingsgate, announced in November 2017 that it had filed a suit against Thailand at an international arbitration tribunal.
Reuters | 28-Apr-2022
A Mexican law that nationalizes its future lithium industry violates its trade obligations under the CPTPP, the International Chamber of Commerce said.
Trend | 25-Apr-2022
Kyrgyzstan government deposited with the World Bank a document on the ratification of the ICSID Convention, thereby completing the process of joining the world’s leading institution for resolving international investment disputes.
Inequality.org | 15-Apr-2022
Mexico and many other countries are facing anti-democratic corporate lawsuits like the case that pushed Khan to withdraw from international investment agreements.
News Intervention | 12-Apr-2022
Several aspects of Reko Diq deal with Barrick Gold are still concealed and Balochistan is not aware of the details of the agreement, say civil society members and politicians from the region.
The Hindu BusinessLine | 31-Mar-2022
The US District Court of Colombia has decided to grant a temporary stay over the confirmation of $111-million award won by Devas’ Mauritius shareholders against India.
La Jornada | 29-Mar-2022
Pakistán ha sido forzado por el Banco Mundial y Barrick Gold a otorgar un permiso minero en contra de su voluntad soberana. México debe poner especial atención a este caso por la demanda en su contra de la minera estadunidense Odyssey Marine Exploration.
Diario Financiero | 21-Mar-2022
En 2019 el Centro Internacional de Arreglo de Diferencias Relativas a Inversiones falló que el gobierno de Pakistán debía pagar US$ 5.900 millones a la empresa Tethyan Copper Company.

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