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 Express Tribune | 21-Mar-2022
In 2019, the ICSID tribunal had given an award over $6 billion against Pakistan to the TCC. At the same time, the London Court of Arbitration also imposed another $4 billion fine on Pakistan.
The Express Tribune | 17-Mar-2022
Washington DC’s District Court has dismissed Pakistan’s motions for stay enforcement of $6 billion award against the country in Reko Diq case.
Chile Mejor sin TLC | 15-Mar-2022
Las organizaciones sociales, ambientales, sindicales, políticas y culturales que integramos la Plataforma Chile Mejor sin TLC, impulsoras de la Iniciativa Popular sobre Tratados de Libre Comercio votada favorablemente por ustedes el pasado 1 de febrero, hacemos un llamado de atención sobre esta contradictoria propuesta.
AFTINET | 7-Mar-2022
AFTINET has raised the alarm over the possibility that British corporations will gain the right to sue the Australian Government if the UK is granted membership in the CPTPP.
Michael West | 4-Mar-2022
The gold mine was closed by the Thai government, but an obscure clause in a “free trade” agreement has allowed the lucrative mine in Central Thailand to reopen.
The Times of India | 25-Feb-2022
The company, which is now known as Capricorn Energy PLC, in a statement said it has received "net proceeds of $1.06 billion", of which nearly 70 per cent will be returned to the shareholders.
AFTINET | 15-Feb-2022
Environmental defenders in Thailand have slammed a decision by the Thai Government to reinstate formerly revoked mining licenses following a lengthy legal battle in an international arbitration tribunal.
The Sydney Morning Herald | 8-Feb-2022
The mine was shut amid accusations of villagers being poisoned by leaking toxic waste. Kingsgate, whose Thai subsidiary Akara Resources had operated the mine since 2001, filed an international arbitration lawsuit.
The Hindu | 4-Feb-2022
The shareholders are seeking compensation commensurate with an arbitration award of $1.3 billion and have demanded that since Devas has been wound up, India must pay the award directly to the claimants.
Infobae | 31-Jan-2022
Huawei anunció el domingo haber activado un procedimiento de arbitraje contra Suecia, ante el Grupo del Banco Mundial, tras la prohibición al gigante chino de telecomunicaciones de vender sus productos 5G en el país nórdico.

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