Investment law and sustainable development weekly news bulletin - june 6, 2003

Investment Law and Policy Weekly News Bulletin, June 6, 2003 Published by the International Institute for Sustainable Development: www.iisd.org -------------------------------- Contents at a Glance: -------------------------------- Arbitration Watch 1. Mexico's Treatment of Hazardous Waste Site Violates Mexico-Spain BIT 2. Notice of Intent in First Known NAFTA Chapter 11 Claim Finally Made Public 3. Holders of Terminated Iraqi Oil Contracts Explore Arbitration Negotiations Watch 4. Least-Developed Countries Oppose WTO Investment Negotiations 5. Canadian Human Rights Organization to Hold Think-Tank on International Investment -------------------------- Arbitration Watch: -------------------------- 1. Mexico's Treatment of Hazardous Waste Site Violates Mexico-Spain BIT, By Luke Eric Peterson In a much anticipated ruling, a Spanish investor has been awarded $5 million dollars (US), by an arbitral tribunal at the International Center for the Settlement of Investment Disputes (ICSID). The investor, Técnicas Medioambientales Tecmed, S.A., filed a claim with ICSID in the summer of 2000 alleging that the Mexican government's failure to re-license its hazardous waste site contravened various rights and protections set out in a bilateral investment treaty (BIT) between Spain and Mexico. Although publicized on ICSID's docket of cases, public information about the case had been scarce. According to news reports, the Cytrar hazardous waste confinement facility in Hermosillo had been plagued by "sit-ins by local residents protesting the site's technical viability and lack of public participation in decisions regarding the hazardous waste confinement and Cytrar's proximity to Hermosillo. Tecmed countered that its Cytrar facility was the target of organized protests designed to achieve a protectionist end: protecting Mexico's only other hazardous waste storage facility in Mina, near Monterrey. In an award handed down on May 29th 2003, an arbitral Tribunal ruled that Mexico's treatment of the investor violated BIT guarantees to provide "full protection & security" and to offer compensation in the event of expropriation. Notably, the Tribunal offered the investor only a fraction of the $52 million dollars it had requested, and rejected certain of its other claims (including a claim that Mexico failed to provide "fair and equitable treatment" as required under the treaty). The Editor of INVEST-SD bulletin has obtained a Spanish language copy of the award from the claimants in the case. A spokesperson for ICSID indicates that the Center hopes to publish the award shortly on its website, following permission from the two parties (ICSID rules require the consent of both parties before the Center may publish the award). Because the controversy surrounding the Cytrar site had been the subject of an investment arbitration at ICSID, the Mexican government had earlier requested that a separate inquiry launched by a citizen's submission for environmental enforcement with the NAFTA Commission for Environmental Cooperation (CEC) be terminated. Civil Society groups had alleged that CYTRAR's operation lacked the proper environmental impact authorization, and had illegally deposited hazardous waste from another company prior to the closing of the waste site in 1999. Although the Secretariat of the CEC held that a fact-finding inquiry was warranted, it was ordered by a council of the three NAFTA parties not to mount such an investigation, in deference to the ongoing investment arbitration at ICSID. Now that an award has been handed down by the ICSID tribunal, it is unclear if a new citizen's submission will be made to the Commission for Environmental Cooperation. Moreover, because the arbitration was held under the so-called Additional Facility rules of ICSID - owing to the fact that Mexico is not a member of ICSID - either party to the arbitration now enjoys the ability to challenge the Tribunal's award in the domestic legal system where the Tribunal had been legally sited: Washington, D.C. At press time, it was unclear if either Mexico or Tecmed intended to challenge the award in the US courts. In an earlier case under the investment chapter of the North American Free Trade Agreement, Mexico appealed to a Canadian court in order to challenge an award issued in the case of Metalclad v. United Mexican States. That appeal succeeded in having several portions of the Tribunal's award overturned. Future issues of INVEST-SD News bulletin will offer further legal analysis of the Tribunal's award, as well as an update on future legal actions related to the investment. Sources: Invest-SD Interviews Tecnicas Medioambientales Tecmed S.A. v. Estados Unidos Mexicans, Caso No. Arb (AF)/00/2, Laudo, 29 de Mayo de 2003-06-06 "NAFTA Environmental Fact-Finding Inquiry Quashed in Deference to Ongoing Investor Dispute", Investment Law and Sustainable Development Weekly News Bulletin, IISD, Dec.27, 2002, available at: 2. Notice of Intent in First Known NAFTA Chapter 11 Claim Finally Made Public, By Luke Eric Peterson Following a request by INVEST-SD News Bulletin, the Canadian Department of Foreign Affairs and International Trade (DFAIT) has agreed to disclose the Notice of Intent to arbitrate, filed in the first NAFTA Chapter 11 claim brought in March of 1996. The claim was brought on behalf of a Mexican pharmaceutical company seeking to market a generic version of Bayer Inc.'s top-selling antibiotic Cipro (ciprofloxacin hydrochloride). Signa S.A. sought to challenge Canadian patent rules which permitted Bayer to obtain an injunction of up to 30 months, which forbade Signa and its Canadian partner, Apotex Inc., from manufacturing and selling a generic copy of Cipro. Until now, the 5 page statement of intent, which set out the investor's NAFTA claims had remained unpublicized. However, upon a request from INVEST-SD News Bulletin, Canadian officials sought and obtained the permission of Signa S.A. to disclose the statement of claim, which will be posted on DFAIT's website in the near future. Although Signa S.A. threatened to challenge portions of Canada's Patented Medicines Regulations as violations of the NAFTA provisions on expropriation and minimum standards of international treatment, the case never proceeded to an arbitration following the mandatory 90 day consultation period with the Canadian Government. Lawyers for Signa S.A. did not return a call placed yesterday to their Washington offices. Ironically, the Canadian Government would briefly override Bayer's patent on Cipro some five years later. During the anthrax scare which gripped North America in the autumn of 2001, Canadian health authorities contracted with Signa's Canadian joint venture partner, Apotex, in order to mass-produce generic Cipro tablets, after Bayer officials indicated that they could not meet the government's request for massive quantities of the antibiotic. Following negotiations between Bayer and Health Canada, this contract was quickly cancelled, and Bayer agreed to produce sufficient quantities of the drug. The Signa claim was not the only threatened NAFTA Chapter 11 claim against Canadian pharmaceutical regulations. In 2001, a US-based drug company threatened a claim when Health Canada issued a temporary ban on a veterinary antibiotic widely used in pig-rearing. Health Canada had cited risks to human health, and a need for further studies, when it issued a temporary ban on the drug Carbadox (marketed under the brand name Mecadox by New-Jersey based Phibro Animal Health). According to a Dec. 2002 press release, the Canadian ban on the drug remains in place, pending a review by a scientific committee of the Food and Agriculture Organization of the United Nations and the World Health Organization. To date, no arbitration has been mounted by the affected investor. Sources: Health Canada Carbadox Fact Sheet, available at: "Drug Company Offensive: Firm threatens trade-law suit to fight Canadian ban on pig drug", By Lyle Stewart, The Montreal Gazette, Aug.17, 2001 Signa S.A. v. Canada, Notice of Intent to Submit a Claim to Arbitration, on file with Editor 3. Holders of Terminated Iraqi Oil Contracts Explore Arbitration, By Trineesh Biswas Iraq's US-appointed oil minister Thamir Ghadban announced on the 25th of May that three oil production contracts signed by Russian and Chinese companies with Saddam Hussein's regime would be either terminated or frozen. The affected investors have countered that international law requires any new Iraqi government to honour contracts negotiated by the previous regime. A post-war briefing from London law firm Norton Rose suggests that the value of claims resulting from contracts breached because of the war could run into the billions, and that the US, the UK, or even the United Nations, might find themselves the target of such suits. Russian oil giant Lukoil's $3.7 billion dollar contract to develop the West Qurna oilfields was terminated outright by Minister Ghadban's decree. Another, with the Chinese National Petroleum Company (CNPC), was reportedly frozen by "mutual agreement," according to Reuters. The fate of the third contract referred to by Minister Ghadban remains unclear. For its part, Lukoil maintains that the Iraqi Government's recent decision is illegal, and insists that only an international arbitration court in Geneva can void its contract. Following the first Gulf War, Saddam Hussein's regime had struck a number of controversial 'conditional contracts.' Negotiated outside the umbrella of the United Nations 'oil for food' program, these contracts were generally exploration and production agreements that would come into force only after the removal of UN sanctions that forbade foreigners from investing in Iraqi oilfields. Last year the Economist magazine reported that "over 30 deals. (are) ready to be implemented the moment sanctions are lifted." However, the recent termination of several of these contracts by the new Iraqi Oil Minister represents a serious setback for firms which had long been poised to stake their claims in Iraq. However, according to one lawyer reportedly hired to examine the issues, the jilted firms enjoy some legal recourse. "There are very good arguments to say that the contracts made with Saddam's regime are binding on the Iraqi state," says Juliet Blanch, a partner at Norton Rose, "The mere factor of a regime change is not by itself enough to invalidate the contracts. such a termination would not be a contractual termination." It is not clear where disputes would be heard, or under what rules. Iraq has only one viable bilateral investment treaty, with Kuwait, and an unratified BIT with Morocco. However, the contracts themselves also typically contain arbitration provisions, and Ms. Blanch suggested that disputes would most likely be arbitrated under UNCITRAL or International Chamber of Commerce rules, with Paris and Geneva as the most likely fora. Recently, a Pentagon-appointed advisor to the Iraqi oil ministry has questioned the fairness and legal force of the various contracts negotiated by Saddam Hussein's former regime. Philip Carroll recently told the Financial Times of London that only a small number of contracts signed with Saddam's regime were "fully signed and operative." The former Shell executive suggested the decision to renegotiate each of these deals would be left to the Iraqi government and the company in question. Sources: Invest-SD interviews Charles Clover, "Iraq to cancel three oil deals with old regime," Financial Times, May 26, 2003 Hassah Hafidh, "Iraq will soon start oil investment," Reuters, May 25, 2003 "Russia strikes Iraq oil deal," BBC News, January 17, 2003 "The Aftermath of War: Ten questions for companies doing business in Iraq," Norton Rose, London, The%20aftermath%20of%20war%20brief.pdf Terry Macalister, "Lukoil puts west on notice: Firm vows fight if its Iraqi interests are threatened," The Guardian, April 9, 2003 James Rossiter, "City lawyer to defend Saddam oil deals," The Evening Standard, April 11, 2003 UN Office of the Iraq Program - Oil for Food; "Baghdad Bazaar: Big Oil in Iraq?" Deutsche Bank Equity Research, October 21, 2002 United States Department of Energy Iraq Analysis Brief, "Saddam's charm offensive," The Economist, October 10, 2002 Michael Lelyveld, "Iraq: Are Baghdad's Old Oil Contracts Valid?", Radio Free Europe, ----------------------------- Negotiations Watch: ----------------------------- 4. Least-Developed Countries Oppose WTO Investment Negotiations At a summit this week in Dhaka, Bangladesh, trade ministers of the 49 Least-Developed Countries (LDCs) issued a declaration opposing the launch of negotiations on investment at the WTO's upcoming Cancun Ministerial Conference. The ministers pointed to ongoing disagreements between WTO member-states in the WTO's Working Group on Trade and Investment, as well as a lack of evidence demonstrating that investment liberalization has led to enhanced flows of foreign direct investment into most LDCs. The Dhaka Declaration noted that the small size and remoteness of these nations meant that new investment was unlikely to materialize without "supportive, targeted intervention from the governments of the sending countries." Expressing skepticism about the usefulness of investment laws and policies adopted by the LDCs, the ministers called for more tangible measures, including a suggestion that Official Development Assistance (ODA) should be targeted so as to create the necessary domestic infrastructure needed to attract and support foreign direct investment. Sources: 5. Canadian Human Rights Organization to Hold Think-Tank on International Investment The International Centre for Human Rights and Democratic Development (Rights & Democracy) is holding a day-long think-tank on June 11, in conjunction with its annual Board Meeting in Ottawa, Ontario. The think-tank will explore human rights issues surrounding investment into developing countries, including the rapidly evolving international legal rules governing investment. The day-long session will feature a number of speakers who will address the practical interface of investment and human rights on the ground, as well as the bewildering array of international rules which govern investment and human rights, and their legal inter-relationship. For more information about the event or to apply for free admission, contact: Diana Bronson (514) 283 6073, dbronson@ichrdd.ca ------------------------------------------------------------------------ INVEST-SD Bulletin is edited in Boston, Massachusetts by Luke Eric Peterson for IISD. Subscribers may submit news articles, notices of events, press releases, analyses, questions and requests for information to lpeterson@iisd.ca The opinions distributed in the INVEST-SD Bulletin do not necessarily represent the views of the International Institute for Sustainable Development (IISD) or its funders.

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