Implications and Challenges for Civil Society Advocacy
A Regional Training Workshop on Investments
Organizer: Focus on the Global South
WS Venue: Chulalongkorn
University, Bangkok, Thailand
Time: WS- 26-28 November 2007 (Mon-Wed)
Publication
(proceedings and Dossier) – first half of 2008
The workshop seeks to contribute to the deepening of the understanding of
Asian civil society advocates and campaigners of the issue of
investment, and explore little understood issues of bilateral
investment treaties, the significance of trade agreements in
investment regimes, the role of international financial institutions,
and the emergence of regional transnational corporations. In
particular, it will tackle the following:
Private
Investment in Public Infrastructure
In the 1990s there has been a big push for private sector investment in
public sector projects, including infrastructure and provision of
utilities. This needed changes in the legal infrastructure for public
sector projects, including the introduction of private sector
participation laws (such as the Build-Operate-Transfer law of the
Philippines) and changes in the regulatory framework and
institutions. Such changes in legal infrastructure facilitated
various contracting models with the private sector, such as
concession agreements and various variants of private sector
building, operation, and supply contracts/agreements. In turn such
new contracting models and legal infrastructure have profound public
interest implications. It is important to examine the key public
interest concerns, such as pricing, fiscal burdens, private monopoly
privileges, public access to information, and public access to
participation and redress mechanisms.
It is also important to revisit the role played by the international
financial institutions (IFIs) in this policy shift, and to explore
viable ways whereby communities adversely affected by IFI programs
and projects may seek effective and direct legal redress.
Transnational
Corporations
One of the biggest critiques to the current global economic system is the
unabated power of transnational corporations (TNCs). TNCs enjoy such
economic influence as to affect international rules and regulations.
For instance, much of the growth in trade happens with increased
intra-TNC trading, and therefore TNCs have had a strong hand in
crafting international trade rules.
Developed countries, specifically in the European Union, host the largest
number of TNCs. Developing economies are home to less than one-fourth
of TNCs, while they (mostly Asian countries) host more than half of
the foreign affiliates worldwide. A new trend emerging is the growing
strength of developing countries as sources of foreign direct
investments (FDI), and the growth of developing country TNCs.
According to the World Investment Report 2006, five of the top100
companies are from developing countries. The WIR 2006 further reports
a revival in FDI in natural resources.
It is important to update our understanding of TNCs and their
operations, given that the fiercest resistance struggles are
organized around the defense of the natural commons, and that it has
been difficult to exact accountability from TNCs. The emergence of
regional corporate giants, especially Indian and Chinese companies,
is also something that requires further scrutiny.
Bilateral
Investment Treaties and Investment Provisions in Trade Agreements
The stalled multilateral talks on trade and the continued resistance of
developing countries to the attempt to broaden the jurisdiction of
the World Trade Organization to investments and other non-trade areas
are both opportunities and challenges to look at other existing
mechanisms used by developed countries to pry open the investment
regimes of developing countries.
Bilateral, regional and multilateral free trade agreements enjoy a bigger
profile in international negotiations, but the investment provisions
in these agreements get little scrutiny. This is despite the fact
that many of these agreements really target investments as much as
they do trade.
Another set of agreements that have implications on investment regulations
are bilateral investment treaties (BITs). BITs bestow rights upon the
foreign investor including the following: most favored nation (MFN)
status, full convertibility and repatriation of profit, and exemption
from nationality rules in employment. On the other hand, the host
governments face clear limits on the expropriation of investment, and
are prohibited from applying rules of origin and local content
requirements. The newest addition to this list is the right given to
investors to submit an investment dispute with the host government,
outside of host government jurisdiction. The growing number of
litigation brought by transnational corporations against country
governments also use bilateral investment treaties as basis,
challenging even existing international law.
Workshop Design
The workshop will run for three days and will have intensive inputs on
the main issues identified above, as well as select case
presentations to represent the major clusters of issues being
addressed in the workshop.
Half of the participants will come from Southeast Asia (particularly the
Philippines, Thailand and Indonesia), with the other half coming from
Malaysia, India and Bangladesh, and a resource speaker will be coming
from the United States.
Participants are selected based on the following criteria:
-
Involvement
in trade and investment issues -
Involvement
in privatization research, advocacy and campaigns -
Involvement
in legal cases in support of civil society campaigns -
Capacity
to undertake monitoring and research of BITs, FTAs, IFI-supported
private investment in public infrastructure and TNCs -
Capacity
to network and disseminate the information learned from the
training-workshop -
Capacity
to link investments with other issues including governance,
environment, participation, and policy space -
Balance
of nationality (from the three main identified countries) -
Gender
balance
The
training-workshop will be designed to cover the following issues:
-
What
are the new trends in finance and investment globally, and what are
the unique features of the trends in Asia? -
How
pervasive is private investment in private infrastructure and what
are the mechanisms that facilitate them? -
How
do we make IFIs accountable? -
What
are the new features of TNC presence in Asia? -
What
are free trade agreements and how do they affect investment rules? -
What
are BITs and why is it important to learn about them? -
Strategies
on researching and monitoring items 1-5 above -
Relationship
and dynamics between BITs, FTAs, and TNCs -
Recent
developments in BITs, FTAs and private investment in public
infrastructure – new BITs, new features in FTAs, recent investment
disputes/decisions -
Relevant
national and international institutions with jurisdiction over
investments -
What
alternative governance mechanisms can we use to clip the power of
TNCs? (how to use human rights etc.) -
How
to increase civil society’s capacity to engage in investment
issues -
Possible
joint monitoring, research and advocacy on investments (BITs, FTAs,
private investment in public infrastructure, TNCs) at the regional
level
The
training-workshop will have eight main inputs which will be
supplemented by country sharing, particularly on experiences with
cases or action against transnational corporations. At the end of
each day, the group will be broken up into smaller teams or buzz
groups to more thoroughly discuss issues arising from the main
inputs.
An
initial compilation of background materials will be prepared and
distributed during the workshop. The compilation will ideally contain
the following: the concept paper and attached background information;
contact list of participants and resource speakers; list of useful
databases and links; background materials on BITs, investment
provisions in trade agreements, private investment in public
infrastructure, TNCs basics and Asian TNCs, role of IFIs, etc.; lists
of relevant investment agreements (for key countries) and links to
full texts.
The
training-workshop will be documented, which documentation will be
used as basic resource for future campaigners, and as basis for short
articles on BITs and related issues, and a possible Dossier on
Investments.
After
the training-workshop, and continued work on investments,
participants are expected to enhance their capacity to create and use
spaces available for advocacy in various national and international
fora, including national governments, national legislatures and
international arbitration system (e.g. ICSID, UNCITRAL); the use of
international conventions to clip the power of transnational
corporations (UN Conventions on Human Rights, Environment, etc.); and
increase their capacity to debate investment liberalization policies
advanced by international financial institutions, particularly the
World Bank and the Asian Development Bank.
Discrete
outputs from the activities include:
-
Attendance
-
Network
to facilitate information exchange, at a minimum, or undertake joint
activities (joint research and monitoring of BITs, TNCs, FTAs) -
Linkage
with international groups/networks already actively campaigning on
BITs, investments in trade agreements, and TNCs -
Documentation
of the training-workshop -
Post-conference
publications (papers, dossier on investments) -
Strategy
and plans for follow-up, including plans for monitoring and
evaluation
Project
Team
A
composite team of FOCUS staff will directly manage the project. The
team consists of:
Jenina
Joy Chavez,
programme
development, networking, fundraising,
resourcing
and facilitation
Sajin
Prachason, Mary Ann Manahan and Julie delos Reyes,
main
logistics, documentation and production support
Lourdes
Torres and Soontaree Nakaviroj,
finance
and administrative support
To
help develop the programme and manage the WS are invited resource
speakers-facilitators. Invited case studies/presentations will enrich
the discussions with actual experiences and campaigns.
Workshop
Programme
Day
1: November 26, Monday
8:30-9:00
a.m. Orientation and Introductions
9:00-9:30
a.m. Workshop Design and Objectives
9:30-10:00
a.m. Input
1:
Global Trends in Finance and Investment
Kavaljit
Singh, Public Interest Research Center/India
10:30-11:00
a.m. Input
2:
Trends in Finance and Investment in Asia
11:00-11:15
a.m. Coffee/Tea Break
11:15
a.n.-12:00 n.n. Discussion
12:00
n.n.-1:00 p.m. Input
3:
Bilateral Investment Treaties
Luke
Peterson, Investment Treaty News/US
1:00
a.m.-2:00 p.m. LUNCH
2:00-3:00
p.m Discussion
3:00-3:30
p.m. Input
4: The
Case of Transnational Corporations
Nicola
Bullard, Focus on the Global South/Thailand
3:30-4:00
p.m. Discussion
4:00-4:45
p.m. Case
Presentations:
The Role of India, China, and Emerging Asian TNCs
Case
1: China
Dorothy-Grace
Guerrero, Focus/Thailand
Case
2:
India
Benny
Kuruvilla, Focus/India
Case
3:
Investments in Energy in Mainland Southeast Asia: The Petroleum
Authority of Thailand
Sairung
Thongplon,Consumer Federation and Chuenchom Greecen, Palang
Thai/Thailand
4:45-5:00
p.m. Coffee/Tea Break
5:00-5:30
p.m. Discussion
5:30-6:00
p.m. General Issues to Note
6:00
p.m. FREE
Participants
make own dinner arrangements.
Day
2: November 27, Tuesday
8:30-9:00
a.m. Recap
9:00-9:30
a.m. Revisiting the issues raised on Day 1
9:30-10:00
a.m. Input
5:
Investment Provisions in Trade Agreements
Sanya
Reid Smith, Third World Network/Malaysia
(broadcast
via Skype video, with simultaneous powerpoint presentation)
10:00-11:00
a.m. Discussion
11:00-11:15
a.m. Coffee/Tea Break
11:15
a.m.-12:00 n.n. Case
Presentations:
Dealing with Investment Agreements
Case
4:
Changing National Investment Laws
Ponny
Anggoro, Institute of Global Justice/Indonesia
Case
5: EU-ASEAN
Free Trade Agreement
Joseph
Purugganan, Focus/Philippines
Case
6:
Japan-Thailand Economic Partnership Agreement
Jacques-chai
Chomtongdi, Focus/Thailand
12:00-1:00
p.m. Discussion
1:00-2:00
p.m. LUNCH
2:00-2:30
p.m. Input
6:
Private Investment in Public Infrastructure
Nepomuceno
Malaluan, Global Transparency Initiative-Asia/Philippines
2:30-3:00
p.m. Discussion
3:00-4:00
p.m. Input
7:
The Role of International Financial Institutions
Shalmali
Guttal, Focus on the Global South/Thailand
Input
8:
Legal Accountability of IFIs
Solomon
Lumba, Action for Economic Reforms/ Philippines
4:00-4:45
p.m. Discussion
4:45-5:00
p.m. Coffee/Tea Break
5:00-6:00
p.m. General Issues to Note
7:00
p.m. Dinner
(Details
to follow)
Day
3: November 28, Wednesday
9:00-9:30
a.m. Recap
9:30-10:00
a.m. Revisiting the issues raised on Day 2
10:00-10:45
a.m. Case
Presentations:
Private Investments and the Role of International Financial
Institutions
Case
7:
Mining in the Philippines
TBC, Alyansa Tigil-Mina/Philippines
Case
8:
Phulbari Resistance Case,Zakir
Kibria, BanglaPraxis/Bangladesh
Case 9: Thai case private investment
10:45-11:00
a.m. Coffee/Tea Break
11:00
a.m.-12:00 p.m. Discussion
12:00-1:00
p.m. General Issues to Note
1:00-2:00
p.m. LUNCH
2:00-4:00
p.m. Workshop:
Developing a Toolkit for National and Regional Campaigners on
Investment
Initial
ideas from main presenters, followed by discussions and
recommendations
4:00-5:00
p.m. Going back to the issues
Building
Strategies
5:00-5:15
p.m. Coffee/Tea Break
5:15-6:00
p.m. Moving Forward
6:00
p.m. FREE
Participants
make own dinner arrangements
