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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).
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