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).

2. Facts & figures • Over 600 cases in the last 15

years

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

Thank You

Carin Smallercsmaller@iisd.org