Bolivia Shows How To Dismantle Corporate Sovereignty Provisions In Treaties Without Losing Foreign Investment

from the they-said-it-couldn't-be-done dept

As Techdirt has reported, corporate sovereignty chapters in TAFTA/TTIP and TPP have emerged as some of the most controversial elements in those agreements. Meanwhile, countries that already have bilateral investment treaties (BITs) with investor-state dispute settlement (ISDS) mechanisms are looking for ways to get rid of them in order to avoid the loss of sovereignty they imply. One nation that already has considerable experience in this area is Bolivia. A new report provides fascinating background information on exactly how it has gone about this (pdf), with valuable lessons for others looking to do the same.

Things began back in 2000, during what was called the "Water war." After Aguas del Tunari, a subsidiary of the US company Bechtel, had taken control of water supplies in the central Bolivian city of Cochabamba, it raised prices to such an extent that the poorest citizens struggled to pay for drinking supplies. This led to demonstrations in the streets, with many people injured (original in Spanish.) Control of the water company was removed from Bechtel, which demanded $50 million compensation for the loss of its investment. The case was finally settled in 2006, when Bechtel agreed to sell its shares in the water company to the Bolivian state -- for 2 Bolivianos (then about $ 0.30).

That experience led the Bolivian people to give their new president of the time, Evo Morales, a mandate to withdraw from all investment agreements and tribunals that allowed claims to be made against the country. Here's how he did that:
The Evo Morales government rejected the Investor-State Dispute Settlement mechanism from the outset. This was reflected in the country’s withdrawal from ICSID -- the most widely used Investor-State Dispute Settlement forum -- in May 2007. In addition, the new [Bolivian] Constitution prohibits the state from settling investment related disputes with foreign investors in international tribunals.

...

one of the most important provisions of the new Constitution in this regard is to denounce and renegotiate all international treaties that are contrary to the constitutional text, that is to say, the BITs, which is ultimately where the power lies for corporations to do whatever they want in the countries in which they operate. The BIT's are where the rules of the game between companies and states are established. They are also the reason why Bolivia, despite regaining sovereignty from corporations and shielding itself from this system, could still be liable to further lawsuits in international tribunals similar to ICSID, which establish their jurisdiction in such treaties.
Bolivia has now cancelled all 21 of its previously-signed BITs, and its subsequent experience is instructive. The conventional wisdom is that without such treaties, foreign investment will plummet, and that the economy of the country concerned will suffer. Here's what actually happened in Bolivia:
When we asked about the reaction of other countries, [Walter Clarems Endara Vera, Deputy Minister for Trade and Integration of Bolivia] said that obviously there was concern on the part of European countries and the United States, which are among those that invest most overseas, and with which Bolivia signed most of it’s BITs. However, he also said that "in all of these cases there has not been a negative response", and that, "in conclusion, our understanding is now that we do not have bilateral investment agreements."

Deputy Minister Endara also noted that "...many countries are interested in signing a new investment agreement with Bolivia."
There are two important reasons why withdrawing from these BITs with their corporate sovereignty clauses has not been the disaster that many pundits predicted:
When we asked the Deputy Minister Endara why he believed that these countries were being so accommodating, his response was that "... chickens have now come home to roost. Countries promoting BIT's are now also being sued in forums such as ICSID as well as other tribunals, sometimes by their own investors. Unfortunately, the economic crisis in Europe has led some countries to take measures affecting foreign investments and they are now being sued. This means that the conversation with some European countries is now different. We can now talk as equals because they are suffering the same problems we have suffered ... I mean, we can now see some of the biggest defenders of the investor-state dispute settlement mechanism defending their own countries against these cases. The situation really has changed."
But perhaps the most significant reason is the following:
In the Bolivian context, it is important to note that, unlike at the time of the first case with Aguas del Tunari, the country now has a legal and constitutional framework, as well as public institutions and a clear policy, to address these Bilateral Investment Treaties and the system of international arbitration that corporations are using to undermine the actions of sovereign countries.
That is, with a functioning government and fair legal system that can resolve investment disputes, there is simply no need to hand over so much power to opaque and expensive supranational tribunals of the kind that lie at the heart of ISDS. Bolivia's success in cancelling its BITs while boosting foreign investment -- $2 billion in 2013, 35% more than in 2012 -- is clear evidence the argument that agreements like TAFTA/TTIP "must" contain corporate sovereignty chapters to achieve the same, is incorrect.

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Reader Comments (rss)

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  •  
    identicon
    Kronomex, Jul 15th, 2014 @ 12:46am

    Good on Bolivia for taking a stance, I only hope they can make it a lasting situation. I'm betting that the corporations in the US will lean on their puppets to make sure that Bolivia "sees the error of their ways" and knuckle their foreheads in contrition.

     

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      Ninja (profile), Jul 15th, 2014 @ 2:57am

      Re:

      Considering how crazily Morales was managing the country a while back (2008, 2009)... This is surprisingly good. Still from what I've read he seems to be getting what it is to be the leader of a country.

      Kudos to Bolivia. Hope others follow them.

      Now... TPP, TAFTA etc etc. Yet another reason to reject those.

       

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    Whatever (profile), Jul 15th, 2014 @ 1:28am

    It's a good story, but missing a little background:

    http://www.heritage.org/index/country/bolivia

    Bolivia was one of the most corrupt nations in the Americas (and that takes some doing). Corruption is a major, major block for investment.

    Without reference to other countries, their moves look great. Taken with reference, you see them as a massive straggler who has only started to claw back a big after a very, very corrupt time.

    Now they have pushed off one form of corruption for a much more evil one, that of being a near socialist state. Business and economic freedom is very low. Many staple good s are kept at artificially low prices by government subsidy. Basically, they are trying to use the Chavez style system to move forward. Socializing and nationalizing industry may have some short term benefits, but long term, well... we already know how socialist states generally end up after a while.

     

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      identicon
      David, Jul 15th, 2014 @ 1:59am

      Re:

      well... we already know how socialist states generally end up after a while

      The problem is we also know how poor underdeveloped countries end up with a capitalistic approach: most of the country's resources end up owned by foreign corporations entertaining their own militia to keep the locals in check and creating a debt situation making it impossible to get rid of them again.

      If you care for the future of your own country, you cannot afford to sell its economy off to international corporations. As an underdeveloped country, you will not ever have the means to buy it back.

      The U.S. has sold its liberties and conscience and education and politics and living standards to monetary interests but at least their greed lords, even though they have their private security personnel, politicians, colleges and so on, have a marginal interest to keep the society they are sharing a country with from collapsing.

      That is not the case for external investors. International trade treaties make it harder, not easier, to develop your own home-grown, home-based, and ultimately home-serving variant of capitalism.

       

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        Whatever (profile), Jul 15th, 2014 @ 2:09am

        Re: Re:

        Socialism works very well for a while, especially for the politicians fronting for it. It essentially makes any possible problem disappear: Fuel prices up? Not for the populace, the government makes it go away. It the Chavez miracle system which is slowly unraveling after his death.

        Part of the Bolivian problem of corruption is that they sold of parts of the economy that should have been government business, such as water. Private ownership in those areas only works when they have significant government regulation for pricing and price increases. Instead, they sold it all off without a care for the population, all to line their own pockets.

        That is not the case for external investors. International trade treaties make it harder, not easier, to develop your own home-grown, home-based, and ultimately home-serving variant of capitalism.

        Nice sentiments, but basically the reality isn't there. Bolivia's "miracle" probably has way more to do with the 40+% of their trade which is exporting crude oil. The increases in the price of oil are the likely sources of much of the income and economic improvement in the country, and likely not much to do with anything else. They clearly aren't doing a good job investing in their own economy, considering that they export crude oil and then import refined fuel because they can't do it themselves.

         

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          art guerrilla (profile), Jul 15th, 2014 @ 6:56am

          Re: Re: Re:

          at whatevs: urine idjit...

          the REAL reasons, bolivia, peru, brazil, etc are being whipsawed by economic problems, are the machinations of -you know- pure-as-the-driven-snow uncle sam and his evil minions of doom who are INSTIGATING the economic problems through the elites who still control most of the media and financial instutions/money/power...
          WE are putting roadblocks, speedbumps, and chokepoints at every nexus of international trade, etc that we can do to fuck them up BECAUSE THEY ARE 'SOCIALIST'...
          you are a tool...
          (oh, and a coward: one only has to look at virtually ANY of your posts/threads where you disappear when you are called out on your bullshit... you really are a despicable person...)

           

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      Ninja (profile), Jul 15th, 2014 @ 3:02am

      Re:

      Now they have pushed off one form of corruption for a much more evil one, that of being a near socialist state.

      As if Socialism is inherently bad. If you are basing your opinion on the Soviet Union suffice to say it was inspired on socialism but hardly socialism at all. Animal Farm comes to mind. Same can be said about Capitalism, it's not inherently good or bad. Both systems have glaring flaws and both disregard human traits that will influence (see Govt instated monopolies and regulatory capture in Capitalist countries for instance).

      we already know how socialist states generally end up after a while.

      Amusing. Capitalism has led the US to corporate capture of the Govt...

      As for Bolivia, know its history before judging.

       

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      Richard (profile), Jul 15th, 2014 @ 4:13am

      Re:

      we already know how socialist states generally end up after a while

      Have you been to Norway?

      It is a nice place.

       

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        Anonymous Coward, Jul 15th, 2014 @ 4:50am

        Re: Re:

        Funny story about Norway. I was watching reruns of Rick Steves and he was sitting comfortably on a nice boat in Norway bragging about how they have socialized medicine and such that often befuddles us poor Americans. Then two shows later he is back in Norway (a few years after the other episode) talking about the influx of immigrants and the social and economic problems; due at least in part to their generous programs. I guess they are the befuddled ones now?

         

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          Richard (profile), Jul 15th, 2014 @ 6:07am

          Re: Re: Re:

          Then two shows later he is back in Norway (a few years after the other episode) talking about the influx of immigrants and the social and economic problems;

          Huh,

          I never noticed any of that when i was there.

          due at least in part to their generous programs.

          Well surprise surprise - you treat people well and people want to come and share the benefits.

          This is more a comment on the poor provision elsewhere.

           

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            identicon
            Anonymous Coward, Jul 15th, 2014 @ 8:10am

            Re: Re: Re: Re:

            this is a problem in europe in general, because of the unreasonably permissive immigration rules. That is not because there are somewhat "socialistic" programms, but because of a failure to properly regulate immigration.

             

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              Ninja (profile), Jul 15th, 2014 @ 10:27am

              Re: Re: Re: Re: Re:

              Considering they can regulate it properly without letting the bigotry and other issues interfere...

              Personally the concept of frontiers is simply bs even though we [human beings] aren't prepared to let go of it just yet.

               

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      HT (profile), Jul 15th, 2014 @ 4:40am

      Authoritarianism is bad, not Socialism

      You seem to imply that Socialism is a bad thing.

      It is not - when economic socialism is paired with democracy countries flourish. For example, America of the late '50s and '60s was the best it has ever been. Right up until deregulation and "Capitalism" took hold it was a great place.

      Many other countries follow this trend. You make out that capitalism provides some kind of substantial benefit. The only reason Capitalism seems good is that democratic countries are capitalist - socialism is far better in terms of keeping a healthy population, equality and individual wealth. Yes, a capitalist country may have an extra XX% wealth but if that is just given to the rich people anyway then what material difference does it make?

      tl;dr - countries that lean towards economic socialism tend to be fairer, more equitable and generally better places to live. They also fared a lot better than purely capitalist countries during the GFC due to tighter regulations.

       

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        Whatever (profile), Jul 15th, 2014 @ 6:00am

        Re: Authoritarianism is bad, not Socialism

        Socialism in limited ways can be useful (medical being one of those areas where it can help) but once it starts to interfere with the basics of the economy, you are headed for trouble. As an example, artificially keeping the price of fuel or staple foods down even as they rise in the rest of the world creates big problems in the long run, with plenty of social unrest when that bubble finally has to be burst.

        Bolivia's miracle is basically taking petro dollars and using them to artificially prop up an economy that might not otherwise function very well. It's the same basic model that Venezuela went for under Chavez, and while it works to some extent, it's mostly pandering to the poor voting masses who enjoy the lunch that is slightly closer to free for them

        It keeps getting the re-elected, naturally. However, it's not always the best way to do things.

        So the article is good in some ways, but it is clearly not taking into account the idea that oil prices when from $20-$30 a barrel to $100 a barrel in very short order, and as a result the country's tax income went through the roof. No miracle there, the trade agreements may have little if anything to do with increased investment in their petro based economy.

         

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          Ninja (profile), Jul 15th, 2014 @ 10:38am

          Re: Re: Authoritarianism is bad, not Socialism

          As an example, artificially keeping the price of fuel or staple foods down even as they rise in the rest of the world creates big problems in the long run, with plenty of social unrest when that bubble finally has to be burst.

          If you are referring to subsides as they do in Venezuela or with the Brazilian diesel then you don't know what socialism is. Those are measures of populist governments (hope this is the word in English).

          Bolivia's miracle is basically taking petro dollars and using them to artificially prop up an economy that might not otherwise function very well.

          Natural gas actually. And previous governments sold the gas for dirty cheap prices instead of charging the proper market prices so there is that. Just because there is money from petrol incoming it's not necessarily an evil thing and it doesn't mean the country couldn't run on other resources. However there is the "oil curse" that seems to affect most countries with petrol. If memory serves Norway prevented it by establishing clear limits to exploration of its huge reserves.

          and while it works to some extent, it's mostly pandering to the poor voting masses who enjoy the lunch that is slightly closer to free for them

          Actually Venezuela is suffering with bad shortages in basic stuff like toilet paper because of the populism Chavez installed in the country. PDVSA (the state-run petrol company) has lost production over the years due to lack of new investments and while crude oil prices have remained high for a while now they are, in fact, losing income. There's also endemic corruption in the Government and with the voting system. I'd say Bolivia is in a quite different situation from my knowledge (though truth be said it's not a role model in South America).

          No miracle there, the trade agreements may have little if anything to do with increased investment in their petro based economy.

          Actually, after they "nationalized" quite a few assets the investment slowed down in the natural gas area. Only recently it's being restored after all the turmoil settled down. They actually forced the companies to sell their assets for low prices but allowed them to keep managing those and racking up profits. It was just less than the initial outrageous margins. Whether the country will see its former natural gass investments remains to be seen.

           

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            Whatever (profile), Jul 15th, 2014 @ 6:30pm

            Re: Re: Re: Authoritarianism is bad, not Socialism

            I agree with you. But "populist" governments are generally just soft sell socialism, giving more benefits to the poorer people with the goal of currying favor and getting re-elected.

            Bolivia is not as bad as Venezuela, that is clear. However, Bolivia is at the start of this road, where as Venezuela has run a far way down the road and proven that without careful balancing and consideration, you can run the wheels of the cart very easily.

            The whole point in the end (getting back to the original story) is that Bolivia's miracle doesn't have anywhere near as much to do with getting rid of trade agreements as it does with just trying to put their own house in order internally. As you said, they stopped selling gas on the super cheap, which in turn can drive the economy. When you are talking about 40% or more of the exports of a country, that is probably the one single biggest driver in their economic growth.

            Basically, Glyn failed to show causation, he only showed that the reovoking of treaties happened in the same general time frame. When you roll it back and look, you can see where that is perhaps only an ancillary contributor to overall growth, and not the main spur.

             

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          identicon
          Anonymous Coward, Jul 15th, 2014 @ 3:06pm

          Re: Re: Authoritarianism is bad, not Socialism

          ...artificially prop up an economy that might not otherwise function very well.
          Thank god that never happens in the US.

           

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      identicon
      breezes, Jul 16th, 2014 @ 11:36pm

      Re: Whatever

      "Now they have pushed off one form of corruption for a much more evil one, that of being a near socialist state. Business and economic freedom is very low. Many staple good s are kept at artificially low prices by government subsidy."

      WTH are u talking about, as if the US doesn't massively subsidize corn, soybeans, big AG in general, for one, and not for the benefit of anyone except commodity trading and the shell game of neoliberal trade

       

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    identicon
    Anonymous Coward, Jul 15th, 2014 @ 4:28am

    Meanwhile, Bolivia has 3 billion in nation debt that equals 30% of their GDP. America has 12 trillion in public debt that equals 73% of it's GDP. 17 trillion if government debt is added to public debt, which equals over 100% of GDP.

    In other words, Bolivia actually has more net capita than the United States and socialism is kicking crony capitalism's ass.

    It's going to get really ugly for the US once the Federal Reserve stops printing money out of thin air later this year. The US can't print it's way out of debt. It's been trying to since 2007, but it hasn't been working.

     

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  •  
    identicon
    Anonymous Coward, Jul 15th, 2014 @ 5:38am

    The conventional wisdom is that without such treaties, foreign investment will plummet, and that the economy of the country concerned will suffer.

    If that is the case, then the "investors" are simply attempting to extort the nation's sovereignty.

     

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