Abstract
Starting from an analysis of contractual clauses included in a large-scale investment contract in land between Cameroon and a private company, this paper aims at inferring general conclusions on the multilevel regulatory framework applying to investment operations in land. After having identified how domestic law and international law interact at the contractual level, the study moves to the analysis of those provisions, namely umbrella clauses and stabilization clauses, which blur the lines between contract and treaty claims, and impact on the pursuit of host States’ public interest. The “chilling” effect of these clauses on host States has further triggered reflection onto whether international law, in its entirety, applies to investment operations and to what extent. Finally, beyond traditional treaty interpretation methods, this paper tries to offer an overview of different harmonization mechanisms, which might prove more effective in the accommodation between investment and non-investment obligations.
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Notes
- 1.
- 2.
Plots of land subject to land investment contracts are often already used to accommodate crops or animal herds of rural communities, whose rights are usually granted a lower level of protection compared to formal titles of ownership. On this tension see also Cotula (2016), p. 177 et seqq. For a more general overview of the implications of international investment law for the distribution and governance of natural resources, see Viñuales (2016), p. 26 et seqq.
- 3.
SGSOC was a Cameroon incorporated company of the NY based Herakles Farms. The company has come under the spotlight because of documented hazards and violations perpetrated both in Ghana and Cameroon. Allegedly, Herakles has suspended its activities in the Mundemba and Toko Subdivisions in Cameroon, although supposedly having a specific intension to intensify planting of palms in the Nguti area (included in the Convention under analysis), despite previous judicial ruling and ministerial orders. The latest news has reported a change in the proprietary asset of SGSOC which was apparently acquired by a new company, willing to resume previous Herakles projects in the contested areas. A governmental decree regarding a potential authorization for the renewal of the lease was expected by November 2016, but apparently no relevant decision has been issued so far. See http://farmlandgrab.org. Accessed 10 January 2017. Pending further—and hopefully positive—evolutions, the author still thinks that these Convention terms serve as an excellent example of the issues here discussed.
- 4.
See, among others, Jennings (1937); Weil (1980), pp. 549 et seqq.; Lalive (1983), pp. 9 et seqq.; Bowett (1988), pp. 49 et seqq.; Maniruzzaman (2001), pp. 309 et seqq.; Sornarajah (1990), pp. 3 et seqq.; Sornarajah (2000), pp. 223 et seqq.; Leben (2003) pp. 201 et seqq.; Douglas (2010), pp. 38 et seqq.; Sornarajah (2010), pp. 281 et seqq.; Voss (2011), pp. 14 et seqq.; Dolzer and Schreuer (2012), pp. 30 et seqq.
- 5.
Shan (2009), pp. 421 et seqq.
- 6.
Generally speaking, investment contracts related to the management or exploitation of natural resources are considered deserving of special protection, given the extreme importance of this sector for the very existence of the State in its territorial component. Taking this aspect into account, many authors believe, indeed, that such contracts should contain specific provisions to ensure that the State is able to fully exercise its sovereignty, without contravening contractual obligations. See e.g. the proposal of Cotula on the drafting of a stabilization clause which meets this criterion, with regard to the principle of sustainable development. See Cotula (2012b). On the content of land deals see also Cotula (2012a).
- 7.
See Sornarajah (2000), p. 241. According to the author, such contracts are ontologically inconsistent because of their dual commercial and public relevance, thus sometimes imposing the need to sacrifice the certainty of the commercial expectations governed by the agreement, in the event that they do not serve the public interest of the host State anymore.
- 8.
The public relevance of these contracts is often reflected in the required previous parliamentary authorization of the agreement, and in the presence of contractual clauses introducing a set of performance requirements at the expenses of the investor. Performance requirements, in particular, integrate certain conditions imposed on the investor for the admission of the investment or the enjoyment of certain benefits, and are generally related to technology transfer duties, export quotas, or hiring a certain number of workers. They are forbidden under the 1986 US-Cameroon BIT.
- 9.
See Sornarajah (2000), p. 86.
- 10.
In an attempt to circumvent the supremacy of the State in the regulation of contracts, scholars and arbitrators have made numerous argumentative efforts to justify the subjugation of these agreements to a different legal order than the internal one. Scholars and arbitrators have tried to elaborate theories that might justify a removal of investment contracts from the host State’s domestic law application. Accordingly, State contracts would be regulated by external legal orders, variously identified in international law, general principles of law or transnational law. This is known by the term internationalization. There are varied theories at the basis of this concept. It is possible to distinguish between direct and indirect internationalization of State contracts, depending on the method they use to refer to international law as the applicable law: (1) either by virtue of the immediate application proprio vigore of an external regulatory system—where the contract finds its legitimization—or (2) through the professio iuris of contract parties, who explicitly choose the application of an international or transnational legal system in conformity to the criterion of party autonomy. On the origin of the phenomenon, see, among others, Sornarajah (2010), pp. 223, 281 et seqq.; Kulick (2012). Among others see Mann (1959), pp. 34 et seqq.; Weil (1969); Sacerdoti (1972); Giardina (1980/1981), pp. 147 et seqq.; Luzzatto (1987), pp. 167 et seqq.; Lalive (1983), pp. 9 et seqq.; Leben (2003), pp. 197 et seqq.; Alvik (2012). See the leading case Ad-Hoc Award, Kuwait v. the American Independent Oil Co. (Aminoil), 21 ILM 976. In the international jurisprudence, see Serbian Loan Case, PCIJ, Series A no. 13, July 29, 1929, where the PCIJ underlines that “Tout contrat qui n’est pas un contrat entre des États en tant que sujets du droit international a son fondement dans une loi nationale.”
- 11.
See, e.g., the Contrat d’Exclusivité pour I’ Utilisation de Terre entre Agro Africa (Norvège) et Kounkane, Sénégal, where the selected applicable law is French law.
- 12.
- 13.
See Crespi Reghizzi (2009), pp. 31 et seqq.
- 14.
See Crespi Reghizzi (2009), p. 36.
- 15.
The parties are free to refer contractual claims to arbitration tribunals, as well.
- 16.
The interpretation of art. 42 ICSID has given rise to heated debates among scholars, see extensively Douglas (2003), p. 192.
- 17.
It is exactly this aspect which allows interpreting the first part of Art. 42 ICSID as a conflict of laws rule.
- 18.
- 19.
Crespi Reghizzi (2009), p. 31.
- 20.
Ibid., p. 33; contra Douglas (2003), who considers that, in the case of a contractual claim, the reference to international law can perform neither a corrective nor integrative function.
- 21.
See Liberian Eastern Timber Corporation v. Republic of Liberia (LETCO), ICSID Case No. ARB/83/2, Award on the Merit 31 March 1986.
- 22.
On the point, see Crespi Reghizzi (2009).
- 23.
- 24.
Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID Case n. ARB/97/3, Award on the Annulment 20 October 2007.
- 25.
The Permanent Court of Justice has already had occasion to rule in the case of the Serbian and Brazilian Loans; the International Court of Justice emphasized in the Anglo Iranian Oil Company case where a dispute arose as a result of the nationalization of the Iranian oil industry, that the contract between the Iranian government and the company was nothing more than a concession contract and that it could not be characterized as a treaty, see ICJ, Case Anglo Iranian Oil Co Case (Kingdom v. Iran), July 22 1952, paras 84 et seqq.
- 26.
See Dolzer and Schreuer (2012), pp. 142 et seqq.; Sasson (2012), p. 165. See also ICJ, ELSI (United States of America v. Italy), 20 July 1989, para 73: “Compliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision”.
- 27.
- 28.
Extensively, Crawford (2008), p. 367.
- 29.
See Art. 11 of the Switzerland-Pakistan BIT that due to its vague drafting caused the SGS v. Pakistan dispute.
- 30.
By virtue of the ambiguous wording of the umbrella clauses, the arbitral practice is extremely fragmented and has produced contradictory awards. See SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, ICSID Case n. ARB/01/13, August, 6th 2003 and the Philippines, SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, January 29th 2004.
- 31.
Cameroon has ratified a number of human rights treaties, among others the 1966 New York International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
- 32.
- 33.
- 34.
- 35.
International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L682 (ILC Fragmentation Report), UN Doc A/CN.4/L702, (ILC Fragmentation Conclusions). See McLachlan (2008), pp. 36 et seqq.
- 36.
It should, however, be specified that the conclusions reached by the Commission have been subject to much criticism, see in particular Conforti (2007), pp. 8 et seqq. Although some assessments appear unembraceable, the work of the ILC presents, nevertheless, an added value, which resides mainly in having drawn up a set of guidelines for the composition of normative antinomies, adopted by the generality of the States. See Treves (2008), p. 843.
- 37.
- 38.
In the context of an ICSID arbitration, the Tribunal has emphasized the continence relationship between the BIT and international law: “Furthermore, it should be noted that the Bilateral Investment Treaty is not a self-contained closed legal system limited to provide for substantive material rules of direct applicability, but it has to be envisaged within a wider juridical context in which rules of other sources are integrated through implied incorporation methods, or by direct reference to certain supplementary rules, whether of international law character or of domestic law nature. Such extension of the applicable legal system resorts clearly from Article 3.(1), Article 3.(2), and Article 4 of the Sri Lanka/U.K Bilateral Investment Treaty,” Agricultural Products Ltd (AAPL) v. Republic of Sri Lanka [1990] ICSID Case n. ARB/87/3, para 21.
- 39.
McLachlan (2008), p. 364.
- 40.
- 41.
This is also the case of the 2012 US Model BIT, Art. 30, which refers to the rules of international law or other international instruments, such as NAFTA and ECT, respectively in Articles 1131 and 26.
- 42.
See MTD Equity Sdn Bhd. & MTD Chile S.A. v. The Republic of Chile, ICSID Case n. ARB/01/7, para 61–62: “MTD’s claim is one for ‘an alleged breach of any right conferred or created by this Agreement with respect to an investment by such investor’ (BIT, Article 6(1)(ii)), and thus International law as the proper law of the BIT is applicable to that claim and to any defence thereto. The Respondent insists – and the Claimants do not disagree – that the Tribunal had to apply International law as a whole to the claim, and not the provisions of the BIT in isolation. 62. For its part the Tribunal also agreed. It said: [F]or purposes of Article 42(1) of the Convention, the parties have agreed to this arbitration under the BIT. This instrument being a treaty, the agreement to arbitrate under the BIT requires the Tribunal to apply international law.”
- 43.
See McLachlan (2005), pp. 279 et seqq.
- 44.
See McLachlan (2008), p. 371.
- 45.
The reference to general international law is particularly useful in the context of BITs for the applicability of those norms which shape the general functioning of the international legal order, since they often consist of a list of primary norms. BITs leave certain matters governed by secondary rules unsettled, in the field, for example, of international responsibility. On this point, it is worth specifying that internationally wrongful act provisions shall apply to the responsibility of the State in general, whether it arises in relation to another State or if the beneficiary is not a sovereign entity, but a private investor.
- 46.
- 47.
The pervasive impact of BITs in the context of State’s public interest has led some authors to question the need to counteract this influence, thus ensuring appropriate opportunities for civil society to have access to justice; see Francioni (2009), pp. 729 et seqq.
- 48.
See Reiner and Schreuer (2009), p. 85. On the reluctance of arbitral tribunals toward invoking human rights see UNCTAD, Selected Recent Development in IIA Arbitration and Human Rights, IIA Monitor No.2, International Investment Agreements, 2009, pp. 3 et seqq.
- 49.
On this point, it is important to distinguish between regulatory takings and police powers: only the former give right to adequate compensation.
- 50.
See Phoenix Action Ltd v. Czech Republic [2009] ICSID Case, n. ARB/06/05. According to the tribunal “investment protection should not be granted to investments made in violation of the most fundamental human rights.”
- 51.
- 52.
This is the case of the Canada Model BIT, Art. 11 (Health, Safety and Environmental Measures) and of US 2004 Model BIT, Art. 12 (Investment and Environment) and Art. 13 (Investment and Labour).
- 53.
- 54.
Simma (2011), p. 578.
- 55.
For the expectations of the investor to be considered legitimate, the arbitrators shall take into account the knowledge he was supposed to have with regard to the human rights obligations of the host State, which could affect the conduct of the latter, see Dupuy (2007), p. 55.
- 56.
See Simma (2011), p. 582, in which the author refers to the risk of a potential regulatory chill of the host State in the implementation of the necessary measures to comply with its human rights obligations.
- 57.
See for example Mondev International Ltd v. United States of America, ICSID Case n. ARB(AF)/99/2, Final Award, October, 11th 2002.
- 58.
On this point, the practice of arbitral tribunals is quite controversial, see e.g. LG&E Energy Corp.at v. Argentina, Decision on Liability, ICSID Casen. ARB/02/1, October, 3rd 2006; LG&E Energy Corp.at v. Argentina, Award, ICSID Case n. ARB/02/1 July, 25th 2007.
- 59.
On this point see Simma (2011), p. 586. According to the author, the comments and reports of HR monitoring bodies can be used as guidelines to correctly identify the relevant content of the obligations of States.
- 60.
See, in particular, Art. 1(4), which ensures respect of the beneficial measures, integrating positive discrimination in favor of certain groups, which cannot be classified as acts of racial discrimination, in the arbitration practice; see Piero Foresti and Others v. The Republic of South Africa, ICSID Case n. ARB (AF)/07/1, Award, August, 4th 2010.
- 61.
For this approach, see Crema (2013), pp. 66 et seqq.
- 62.
Ibid., p. 18.
- 63.
- 64.
See Newcombe (2005), p. 46, who believes that risks of investment operations fostering underdevelopment should be totally borne by the investor.
- 65.
See Kingsbury and Schill (2009), p. 32.
- 66.
Téchnicas Medioambientales Tecmed S.A. v. Mexico ICSID Case n. ARB(AF)/00/2, Award, May 29th, 2003 paras 119, 122.
- 67.
For the relevance of the knowledge of the investor of the host State’s regulatory environment and its impact on legitimate expectations, see Tecmed SA v. Mexico, ICSID Case n. ARB (AF)/00/2, Award, May 29th, 2003.
- 68.
See Dupuy (2007), p. 60.
- 69.
Most contemporary constitutions contain a list of rules related to the protection of fundamental rights of human beings.
- 70.
See on that Bertoli and Crespi Reghizzi (2013), p. 35, where the authors refer to international mandatory rules, which might incorporate regulatory measures adopted by the host State in the fields of e.g. tax, environment or labour conditions.
- 71.
See Giardina (1982), p. 682.
- 72.
See Sornarajah (1981), pp. 187 et seqq.
- 73.
See Luzzatto (1987), p. 174.
- 74.
See Revere Copper v. Overseas Private Investment Corporation (OPIC), Award August 24th, 1978.
- 75.
Leader (2006), p. 628.
- 76.
Ibid., pp. 633 et seqq.
- 77.
See, in this context, the 2003 BTC Human Rights Undertaking, which involves a unilateral (binding) commitment of the BTC consortium not to interpret the contractual stabilization clauses in such a way as to prevent the pursuit of environmental protection and human rights.
- 78.
According to some Italian courts, the provision of Art. V (2) (b) of the 1985 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards relates to international public policy.
- 79.
ICC Award No 1110, January 15th, 1963 and Work Ltd v. Republic of Kenya, ICSID Case n. ARB/00/7, October 4th 2006, both related to corruption.
- 80.
On the grounds of a transnational public policy, see Lalive (2009).
- 81.
Muir Watt (2015), pp. 1 et seqq.
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Violi, F. (2017). The Regulatory Vicious Circle of Investment Operations in Agriculture. In: Alabrese, M., Brunori, M., Rolandi, S., Saba, A. (eds) Agricultural Law. LITES - Legal Issues in Transdisciplinary Environmental Studies, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-64756-2_15
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