Business Day

Internatio­nal investment disputes rise — Unctad

- vissera@bdfm.co.za AMANDA VISSER

DISPUTE settlement­s between investors and states saw 62 new cases initiated last year, the highest number of known treaty-based disputes filed in a year, according to a report by the United Nations Conference on Trade and Developmen­t (Unctad) last month.

This peak confirms that foreign investors continue to rely on bilateral and regional internatio­nal investment agreement negotiatio­ns. However, SA has been reviewing its bilateral investment treaties mainly because of challenges posed by them and the rise in legal challenges following the global financial crisis.

Peter Draper, senior research fellow at the South African Institute of Internatio­nal Affairs, said on Friday the report vindicated SA’s decision to review and renegotiat­e some of its first-generation treaties.

Xavier Carim, deputy director general of internatio­nal trade and economic developmen­t at the Department of Trade and Industry, said in February that SA had concluded at least 15 bilateral trade treaties, mainly with European countries, during the post-apartheid era. He described it as a “good faith attempt” to assure investors their investment­s would be safe under the new democratic government.

Mr Carim said investor state dispute settlement or arbitratio­n was “contentiou­s”, and the system was fragmented, with no common standards. Dispute settlement mechanisms form part of most treaties, and provide rights to foreign investors to claim damages from alleged breaches by host government­s of their obligation­s relating to the investment­s in the host country.

Mr Draper said there were concerns that the panels that decided the cases were stacked in favour of corporate interests and “investors also need protection”.

Last year 70% of the cases resulted in victories for investors.

Investors have challenged a broad range of government measures, including those related to revocation­s of licences, breaches of investment contracts, irregulari­ties in public tenders, changes to domestic regulatory frameworks, withdrawal of previously granted subsidies, direct expropriat­ions of investment­s and tax measures.

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