Saturday, 16 February 2013

Foreign Investment Rules

Australia is a signatory to the International Centre for the Settlement of Investment Disputes (ICSID). It was formed under the umbrella of the World Bank.

It is essentially an International Tribunal which settles disputes between foreign investors and nation states. Its charter is unequivocally to serve the interests of foreign investors and it does not take into consideration factors such as human rights nor the environment.

There are some international rules but it is also governed by the various treaties and free trade agreements between countries. This means that the rules will be different for investors from different countries depending on what treaties are signed with their home countries.

Most of the time the countries which find themselves before these tribunals are developing countries from Africa, Asia Central and Eastern Europe, South America and Asia with some countries appearing multiple times. Modern developed economies are rarely called to appear although I did see one case against NZ which was settled by arbitration and there was one case against the US.

The costs of appearing are enormous and the fines imposed against countries found to have breached conventions against foreign investors are into the $US100m range.

There are protections against obvious things such as nationalisation and acquisition of property without compensation. Provision of security is covered which could explain why security forces are used so often (sometimes brutally) to clear indigenous populations from logging, mining and farming concessions and (perhaps surprisingly) game parks run by conservation organisations.

International Investment Agreements (IIA) usually impose few obligations on investors but host countries commonly have many obligations. For example they are required to ensure that businesses have the resources to operate.

In reality this means that for an agricultural enterprise for example, water must be provided. This is the case even if local people and crops are perishing.

It is also commonplace in international agreements that an investor is able to operate their business in accordance with their own needs so that even in a time of famine restricting the export of food by a foreign investor may be a breach of international law.

One would hope that a country like Australia has managed to reserve for itself adherence to local laws covering things such as water (where entitlement is often reduced during a drought or to preserve an aquifer) and export where rules for many commodities such as beef are very strict and have evolved over time as a matter of necessity.


However the notes on a case of a US company seeking compensation for expropriated land offer some insight.

 The Tribunal is satisfied that the rules and principles

of Costa Rican law which it must take into account, relating to the

appraisal and valuation of expropriated property, are generally consistent

with the accepted principles of public international law on

the same subject. To the extent that there may be any inconsistency

between the two bodies of law, the rules of public international law

must prevail. Were this not so in relation to takings of property,

the protection of international law would be denied to the foreign

investor and the purpose of the ICSID Convention would, in this

respect, be frustrated.


I would like to speculate now on attitudes to movements such as Lock the Gate. Governments are particularly sensitive to these movements and the degree of support they have enjoyed.

From a government perspective though, foreign companies have been guaranteed access to their resource and recent legislation which allows CSG companies unlimited access to the water they require. If they cannot provide this, the question is, “Where does this leave us internationally?”

To move a little further down the track, companies would also have been guaranteed, before making sizable investments, that they would have the means to export their product. It appears that in order to fulfil that promise in any sort of a timeframe the ecology of places such as Gladstone Harbour will continue to be sacrificed. The fishers of the Harbour are simply caught in the crossfire.

Whether the foreign investment is industrial mining, farming or logging in most countries in the world where secure property rights are not clear and even in some places where they are clear local people are mostly collateral damage.

In many forests around the world the traditional inhabitants rarely have title. In Australia, farmers have title to the land but not the resources, nor, it appears, the water underneath.

The question remains, “What compromises will we need to make when we do start to welcome large foreign investors in our farming and grazing lands?”

Green groups and others recently have been asking government if they are able to put a stop to CSG projects if they are shown to be causing environmental or massive environmental damage (there may be a difference legally).

There is no doubt that advanced economies go out of their way to maintain their credentials as secure places to invest.

Where does this leave us with an industry that has been hastily rolled out?






  1. If you have never come across the following information as found in Jo's article above, you may find it confronting and question its accuracy.
    I would encourage you to go to the Just Conservation web site and read the various articles found there.

    "Provision of security is covered which could explain why security forces are used so often (sometimes brutally) to clear indigenous populations from logging, mining and farming concessions and (perhaps surprisingly) game parks run by conservation organisations."

  2. Just as a small test of my foreign investment questions let us look at what company/companies have had licenses suspended as a resultof CSG operations.
    The only one which comes quickly to mind is Cougar Energy's exploration operation at Kingaroy.
    Has it really been the cause of more environmental damage than any other company? Probably not.
    However it is small with nett equity of just over $4,000,000 (four million dollars).
    It is listed on the Australian Sock Exchange. It has Australian directors and shareholders. It raises money from shareholders in the hundreds of thousands of dollars not millions of dollars. Its current share price is .007-.008 cents down from 17 cents in 2008.
    It currently has its Queensland assets which include coal tenements as well as CSG up forsale.
    Will it remain in Australian hands?
    What unintended consequences have been set in motion here?
    Cougar has currently suspended actions against the Queensland Government and others in the Supreme Court and the Land and Environment Court while they are in negotiations with the Government. Have any of the large, foreign companies found it necessary to take these measures?


  3. Congratulations, Joanne, on your challenging and thought-provoking article, which reveals disturbing and far-reaching implications for all Australians.

    As you have shown, Australia is now beholden to an international entity whose (quote) “charter is unequivocally to serve the interests of foreign investors and it does not take into consideration factors such as human rights nor the environment”.

    We do find Australia’s sovereignty is disappearing as surely as sand through a sieve, as we become more and more bound by international laws: this once proud, free and self-sufficient nation that was, in bygone times, able to stand tall and independent among the nations of the world!

    One comment from Jo’s article I find particularly chilling is:

    “It is also commonplace in international agreements that an investor is able to operate their business in accordance with their own needs so that even in a time of famine restricting the export of food by a foreign investor may be a breach of international law”

    With Australian farms closing down at an alarming rate; more and more food being imported to the detriment of Australian producers (hence our own food-production continually diminishing); more and more farmland being purchased by foreign investors (whose allegiance, understandably, is to their own country), the question of future food security for Australians is very sobering to ponder.

  4. Elizabeth
    Like you I was shocked when I learnt that international law does nothing to protect the interests of local inhabitants against those of foreign investors. In developing countries many of the local communities thrown into poverty are those who are evicted from the land being worked by the foreign company.
    Until I started delving into the situation I assumed that in Australia foreign companies would be bound by Australian law.
    Fred Pearce in his book “The Landgrabbers” details the effects of foreign investment law and international agreements. “Even if the locals are starving or parched with thirst, in law the rights of the foreign investor come first.”
    Green organisations who want areas for conservation or game parks are no more sensitive than industrial farms or miners.
    These case studies are from Wikipedia. The last involves Australia.
    Case Studies
    • The Indonesian government was sued in June 2012 by a London-based mining company Churchill Mining after the local government revoked the concession rights held by a local company in which the firm had invested.[17] The government is countering the Churchill case, claiming that Churchill did not have the correct type of mining licenses.[17]
    • In October 2012, an ICSID tribunal awarded a judgment of $1.8 billion for Occidental Petroleum against the government of Ecuador.[17] Additionally, Ecuador had to pay $589 million in backdated compound interest and half of the costs of the tribunal, making its total penalty around $2.4 billion.[17] The South American country annulled a contract with the oil firm on the grounds that it violated a clause that the company would not sell its rights to another firm without permission. The tribunal agreed the violation took place but judged that the annulment was not fair and equitable treatment to the company.[17]
    • Irish oil firm Tullow Oil took the Ugandan government to court in November 2012 after VAT was placed on goods and services the firm purchased for its operations in the country.[18] The Ugandan government responded that the company had no right to claim tax on such goods prior to commencement of drilling. The case also attracted criticism for Tullow’s use of local legal representation, Kampala Associated Advocates (KAA); the Ugandan law firm was founded by Elly Kurahanga, the president of Tullow’s operations in Uganda and concerns were raised over his impartiality in the issue.[18]
    • Tobacco major Philip Morris sued Uruguay for alleged breaches to the Uruguay-Swiss BIT for requiring cigarette packs to display graphic health warnings and sued Australia under the Australia-Hong Kong BITS for requiring plain packaging for its cigarettes. The company claims that the packaging requirements in both countries violate its investment.[17]
    More on international law can be found by searching “ICSID”.

  5. Jo, this further info gets even more frightening, and to think most of us have been quite oblivious to all this. If the purpose of this international law was to pull despotic nations into line, one could accept it, but in view of what you have disclosed here, such actions represent a tyranny, rendering otherwise law abiding people powerless to defend themselves.

    It helps give one just a little insight into what might eventuate under a 'Global Governance' as called for by the Greens, when every aspect of our lives would be controlled by international bodies.

  6. World's wealthy buy up overseas farms, an article published yesterday at ABC Environment web page.
    "From Sudan to Indonesia, most of the land lies in poverty-stricken regions, so experts warn that this widespread purchasing could expand the gap between developed and developing countries.

    The 'water grabbing' by corporations amounts to 454 billion cubic metres per year globally, according to a new study by environmental scientists. That's about five per cent of the water the world uses annually.

    ....In many of these countries, the sum of the water being grabbed would be enough to eliminate malnourishment," says D'Odorico, who collaborated with scientists from Italy's Polytechnic University of Milan.

    Wolford says there is danger that local people - especially in places like sub-Saharan Africa - are not aware of land purchases and how it could affect their way of life.

    "That's probably the biggest problem - people could have gathered timber from the woods or lived downstream of the land grabbed," Wolford says. "These things could be taken away without them knowing what happened."

    There is little international policing of land deals.

    "International corporations are subject to domestic and international trade rules and treaties, but when it comes to what a country does with its land, that strikes at the core of national sovereignty," Wolford says"

  7. As well as international law ICSID arbitrates treaties between countries so the rules for one set of foreign investors will be different from those of other countries.
    Most of the countries which appear before ICSID are third world countries. Although they want foreign investment they are often too unstable or lacking in knowledge to make the relationahip work.
    First world countries are more likely to be governed by treaties whose terms have been agreed. Additionally, they do not wish to be seen as countries where “sovereign risk” is a feature.
    What I would really like to know is if the Australian Government has any power to restrict the water intake and retention on, for example, “Cubby Station” as is common in all farming areas in Australia.
    It was, after all, lack of water that bankrupted the former owners.
    Judging by the reaction of Barnaby Joyce and the vehemence with which he was beaten up by his coalition partners it would appear that foreign investment is so important to the free marketeers in the party that it takes precedence over the water rights of downstream farmers.
    The potential difference in treatment between local companies and foreign investors is a discussion which rural Australia has to have. We need to be asking the question and gaining assurances that Australian farming families will not suffer to fulfil obligations to foreign investors and that they will not be operating under different rules.
    Australia is set to have more foreign investors with 21 properties up for sale in the Northern Territory and the Kimberly ranging in size from 400 square kilometres to three thousand square kilometres plus another in receivership.

  8. Your vitally important question deserves repetition, Joanne:

    "We need to be asking the question and gaining assurances that Australian farming families will not suffer to fulfil obligations to foreign investors and that they will not be operating under different rules."

    Indeed: "The potential difference in treatment between local companies and foreign investors is a discussion which rural Australia has to have." (emphasis mine)

    Now, with an election pending, is surely the time all landowners should be asking these hard questions of those seeking to represent us.

    As well we should be lending our support to Barnaby, one of the very few politicians with both insight and the integrity to stand up and be counted. He seemed to be a lone voice speaking out about Cubby Station. We should also seek genuine answers to the significant question you pose re Cubby Station's water usage.

  9. Elizabeth
    I doubt that most landowners or even most citizens know that this is a discussion we have to have. I am sure they are making the same assumptions that I have, that Australian sovereignty prevails.
    I also agree with you about supporting Barnaby. Sometimes he appears to be a lone warrior who receives nothing but criticism even from his coalition partners.

  10. One of the original questions of the discussion was, “Does the government have the power to stop companies if they are causing environmental harm?”.
    This is one of the recent cases before ICSID which will be governed and decided by the North American Free Trade Agreement (NAFTA).
    “In November 2012, a US energy company Lone Pine Resources sued Canada under the investment chapter of the NAFTA (North American Free Trade Agreement) for $250 million because the Quebec provincial government declared a moratorium on
    fracking (a method of obtaining shale gas) and also banned drilling below the St. Lawrence River, which the company claims is a violation of its drilling permit. (Source: The Star, Ottawa; and Globe and Mail, 15 Nov. 2012).”
    The above article outline several reasons why it considers foreign investors are advantaged by the present rules. This one is particularly relevant.
    “Fourth, the treaties prohibit expropriation of the investments. The definition of “expropriation” is very broad; it includes direct expropriation such as takeovers of property but also indirect expropriation including “regulatory takings”, or the implementation of new policy measures that affect the potential revenue and profits of the investors. Thus, investors have sued governments for changes to or cancellation of contracts, and for health and environmental policies and regulations.”
    We are also informed that,
    “Australia, in April 2011, announced it would not agree to including investor-state dispute settlement provisions in its BITS and free trade agreements.”
    The fact remains though that we are still signatories to ICSID and subject to international dispute resolution procedures. It is doubtful that we would withdraw from that as we would get almost get almost no foreign investment.
    It would appear though that some commentators are arguing that the system needs some serious reform.

  11. I would say the system certainly "needs some serious reform" Jo. But because of the way ‘money speaks’ and decisions by the ICSID seem to be weighted on the side of wealthy, international business (the welfare of private citizens being seen as inconsequential), it is difficult to feel confident of any favourable reform.

    Governments, it seems, are desperate to lure wealthy foreign investors and eager to provide lucrative incentives; but as you’ve revealed, they sometimes end up disempowered and at the mercy of the investor.

    In times past, Australia’s ‘wealth’ resided in the freedom and security of its citizens, and their ability to live productive lives, not having their earning capacity stifled by all manner of legislative red tape and crippling international laws.

    Now with present day serious erosion of private property rights and threats to our national sovereignty, our only safeguard might be to demand limits to foreign investment (and CSG projects) in areas that seriously affect our environment, food security and water supply. And get behind Barnaby, who is one of the few to champion our cause!

  12. I agree with you totally about supporting Barnaby. He often seems to be a lone voice for rural Australia against a multitude of other voices particularly when it comes to rural issues and foreign investment. many of the accusations leveled at him are false.
    I do however find it puzzling that no mention is ever made of foreign investment disputes by the MSM even when Australia is involved as is the case with the plain packaging of cigarettes.

  13. A comment by Charles Nason, Banoona, Roma, in conclusion of his letter to the QCL of 7 March 2013, should make a great slogan:

    “Australian food grown by Australian farmers for Australian people should be the cornerstone policy of all parties, rather than welcoming foreign investment which will not be to our long term advantage.”


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