By Don Quijones of Mexico and Spain, and editor at Wolf Street. Originally published at Wolf Street
International arbitration lawyers have a soft spot for Latin America, for a reason: over the last ten years, the region has been one of the primary sources of their exorbitant fees, which can range from $375 to $700 per hour depending on where the arbitration takes place.
By 2008, more than half of all registered claims at the International Centre for Settlement of Investment Disputes (ICSID) were pending against Latin American countries. In 2012, around one-quarter of all new ICSID disputes involved a Latin American state.
Today the region faces a fresh deluge of ISDS claims. The countries most affected include Uruguay, whose anti-tobacco legislation has been challenged by Philip Morris at an international arbitration panel; Argentina, Ecuador and Colombia, which until a few years ago had never been on the receiving end of an investor-state dispute settlement (ISDS). Now it is the target of multiple suits that could end up setting its government back billions of dollars.
The claimants include Glencore, the world’s biggest and most heavily leveraged commodities trader; Carlos Slim-owned América Móvil, the leading wireless services provider in Latin America and the third largest in the world; the Spanish insurance company Sanitas; the Swiss pharmaceutical giant Novartis; and the Canadian miner Eco Oro and US miner Tobie Mining and Energy.
Each company on that list feels that decisions or actions taken by the Colombian government have in one way or another cost or will cost them profits to which they feel entitled. And each company is doing what it has the right to do under today’s trade treaties — suing the government of that country for damages.
It is the last company on the list — Tobie Mining and Energy — that is the biggest concern to the Colombian government for the damages it seeks: $16.5 billion. That’s a lot of money for a nation with per-capita GDP of $7,831 and whose currency has lost 40% of its value against the dollar over the last 18 months. It’s the equivalent of 20% of its national budget.
The dispute revolves around a gold mining concession in the Taraira region near Colombia’s border with Brazil. In 2009 the Colombian government created the Yaigoji Apaporis national park in the Amazon rain forest. Tobie and its two consortium partners, Cosigo Resources (Canada) and Cosigo Resources Sucursal Colombia (Colombia), had been granted a mining concession for part of that region. Under the 2011 U.S.-Colombia Free Trade Agreement, the consortium claims that Colombia is liable for the company’s lost investment and future profits, which apparently amounts to €16.5 billion.
According to a new study by Krzysztof J. Pelc, an Associate Professor of Political Science at McGill University in Canada, although companies are winning fewer and fewer cases against national governments — at last count they were winning less than 10% of the indirect expropriation claims they brought against democratic countries — they are litigating more and more.
The fact that corporations can sue nations under ISDS without having to satisfy any pre-conditions, or even run the risk of being sued back, makes it ludicrously easy to bring “frivolous” claims against democratic governments, warns Tech Dirt’s Glyn Moody.
Each time a country is taken to arbitration by an international corporation, it has to shell out millions of dollars in legal fees and potentially hundreds of millions or even billions of dollars in damages. Many cases can drag on for months or even longer, draining valuable national resources and funds. Naturally, the temptation to settle before the case even reaches arbitration is huge. It might be even more tempting, especially for cash-strapped governments like Colombia, to simply reverse the offending legislation.
In Colombia, the government currently faces the prospect of not just one, but two ISDS cases over mining concessions. The second case involves the Canadian mining company Eco Oro Minerals, which has initiated proceedings against Colombia over the Andean state’s decision to protect the high-altitude wetlands, or páramo, of Santurbán, which aside from being the site of Eco Oro’s proposed Angostura mining project, provides as much as 70% of the nation’s water supply.
The gold mine has the financial backing of the World Bank, but so, too, does the Colombian government’s renewed push to protect its rainforest. Millions of dollars have also poured in from USAID’s BioREDD programme, while the governments of Norway, Germany and the UK have agreed to pay over $300 million if Colombia reduces emissions from deforestation.
In other words, while vast sums of Western taxpayer funds are pouring into Colombia to encourage it to protect its environment, Western corporations — with full backing from the World Bank — are doing all they can to prevent the government from safe-guarding its environment, including the water supply its people depend on.
That’s not to say that Colombia’s government is in any way an innocent party in all of this. For years, the current Santos administration and the Uribe administration before it have kowtowed to the demands of miners, as you’d expect from a country that depends enormously on commodities like oil, coal and gold and which has done next to nothing to reduce that dependence.
The government has also signed just about every trade agreement dangled in front of it, ignoring stark warnings that the nation’s infrastructure and companies were not strong enough for the economy to effectively compete with the likes of the U.S., Canada, Mexico, Chile and the EU. The results speak for themselves. In the last five years Colombia’s balance of payments deficit has ballooned from $9.7 billion to $18.92 billion. Since signing a historic bilateral trade agreement with its closest trading partner, the United States, in 2011, the country has gone from having an $8 billion trade surplus to a $2.5 billion deficit in 2015.
Now it faces potentially billions of dollars in damages for threatening the future profits of some multinational corporations. To avoid its current troubles, all it needed to do was carefully read the section on investor-state dispute settlements in each of the bilateral treaties it signed. Indeed, it could have just asked the opinion of the Spanish arbitrator Juan Fernandez-Armesto, who said not so long ago:
When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all […]. Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament.
But for Colombia — and many other countries — it’s probably too late, having already signed to dotted line. By Don Quijones, Raging Bull-Shit