Event Transcript: Doing Business in Developing Countries: The Importance of the Rule of Law
DOING BUSINESS IN DEVELOPING COUNTRIES: THE IMPORTANCE OF THE RULE OF LAW
TRANSCRIBED FROM DOING BUSINESS IN DEVELOPING COUNTRIES_-_THE IMPORTANCE OF THE RULE OF LAW_02-05-2013.mp3
[On February 5, 2013, the Council on International Affairs of the New York City Bar Association and The American Bar Association Representatives and Observers to the United Nations hosted a panel discussion at the House of the New York City Bar Association entitled “Doing Business in Developing Countries: The Importance of the Rule of Law.” The panel focused on the importance of the rule of law to doing business in developing countries at both the national and international levels, and members of the panel provided presentations on the United Nations’ Rule of Law Initiative, international transactions, and international investment disputes. The Panelists included Edric Selous, Director, Rule of Law Unit, Executive Office of the Secretary-General at the United Nations; Aaron Ambia, LLM student at Harvard Law School, formerly associated with Kaplan & Stratton Advocates in Kenya; Lawrence B. Friedman, Partner, Cleary Gottlieb Steen & Hamilton LLP; and Bruce Rashkow, Lecturer-in-Law at Columbia Law School, formerly with the Office of the Legal Adviser, U.S. Department of State, and head for ten years of the General Legal Division, U.N. Office of Legal Affairs, before retiring from the Management and Reform Section, U.S. Mission to the United Nations.]
Ms. Bettina B. Plevan: Well good evening everyone. My name is Betsy Plevan. I’m the chair of the Council on International Affairs, the principal sponsor along with the American Bar Association, of this program tonight, and we are pleased to see so many people here for a topic that has some abstraction to it, but I think you’ll hear from the speakers we have tonight a lot of practical advice as well. So I want to welcome all of you on behalf of the Council and on behalf of the dozen or so committees who are part of the Council.
I want to thank all the Council members who helped put the program together in partnership with the ABA. I want to thank in particular, Chris DeNicola, of Cleary Gottlieb, whose assistance in organizing this program was invaluable, especially today. My thanks as well to Helaine Barnett, who chairs the ABA UN group for helping us with that part of the program. It is now my pleasure to introduce our moderator, who will also be a speaker, Bruce Rashkow. Bruce is a member of the ABA, and this is the official title, The ABA Representatives and Observers to the United Nations. He is very well suited to lead this program this evening, having served for a number of years in the Office of the Legal Adviser of the State Department and for ten years as head of the general legal division of the UN Office of Legal Affairs. He is now a Lecturer of Law at Columbia Law School, and Bruce will introduce the panelists, including our last minute substitution, which I hope you will agree, although not the same as what was planned, is just as good. Thank you very much.
Mr. Rashkow: Thank you very much. First of all I would like to thank the City Bar, in particular its Council on International Affairs, and the American Bar Association Representatives and Observers to the United Nations, for sponsoring this event. And for Betsy for her kind introduction and kind words about me and the panelists. I join Betsy in welcoming all of you to the event which we and the panelists hope will provide some interesting insights into the implications of the United Nations Rule of Law Initiative to doing business in developing countries.
At the outset I want to make some announcements regarding the panel. This has been quite a journey to get us here to be able to speak with you. Originally we had on the panel, in addition to myself and Mr. Larry Friedman, Ambassador De Alba who is the Permanent Representative of the Mexican Mission to the United Nations and was one of the two Co-Facilitators who managed the discussions in the General Assembly for over a year, leading to the Declaration on the Enhancement of the Rule of Law, both internationally and under domestic law. He worked as a Co-Facilitator with the Ambassador from Denmark and he was looking forward to participating in our panel. He brought a wealth of experience, not only in those capacities but as a significant player in the General Assembly on development issues generally. However he was called away at the last minute by his government to attend a meeting in Rome dealing with the reform of the Security Council and couldn’t be with us. He asked me to convey his sincere regrets.
But we were able at the last minute to prevail upon Edric Selous, who is, to my immediate left, and who is head of the Secretary General’s Rule of Law Unit and has been the head of that unit since almost its inception in 2010 and deeply involved in the Rule of Law Initiative. Edric brings to this position a lot of experience within the UN. He joined the UN in 1993 and since then has served in a variety of capacities and has had a distinguished career serving on peacekeeping missions, in both the field and at headquarters, and a variety of offices including the Office of Legal Affairs in the United Nations, and we look forward to Edric’s presentation. Edric will provide some background on the UN’s initiative on enhancing the rule of law nationally and internationally, including its important context of enhancing sustainable development of the economies of developing countries.
Our third speaker was supposed to be Laura Chenoweth, who we all looked forward, and she had looked forward, to participating. But given the vagaries of life, and the influenza risks for everybody, she unfortunately got ill and was unable to participate. Instead, we have a distinguished participant, Mr. Aaron Ambia, who we prevailed upon at the very last minute. It was a surprise to me to see we were able to find a substitute for Laura so late in the day. Aaron is a lawyer from Kenya, currently an LLM student at Harvard Law. Prior to Harvard, he was an associate with Kaplan and Stratton, an advocate in Kenya–-a practicing lawyer in Kenya–where he drafted commercial contracts and assisted in a variety of legal transactions as well as advised major and median corporation and not for profit entities on legal aspects of doing business in Kenya and Africa. So we are pleased that we were able to find a substitute and thank you Aaron for coming and joining us at the last minute. This is a significant contribution to the panel.
And the wind up on the panel is a distinguished lawyer from here in New York. It’s Larry Friedman, who is a partner in the New York office of Cleary Gottlieb. Larry’s practice focuses on international and domestic commercial litigation and arbitration, including in such fields as mergers and acquisitions, joint ventures, international banking, and marketing and licensing agreements, and in disputes concerning intellectual property infringement and misappropriation. Very apt experience that he will bring to our discussion–on being able to contribute to the enhancement of rule of law for developing economies.
With those introductions, I would only note that for some of you that are unaware of the United Nations initiative on the enhancement of international and domestic law, we have copies of the Declaration that was issued by the General Assembly after a long negotiation, which covers a wide variety of topics. It’s in the back of the room for those who are interested.
At this point, I will only refer those of you who haven’t seen it to two particular paragraphs that deal with development, which you might want to keep in mind as you listen to our panelists. And those are paragraphs 7 and 8 of the declaration, which I’ll read just to give you some familiarity with the context of the issue of development within the broader Declaration. I will note that the Declaration has 42 paragraphs and these two paragraphs are the central focus for dealing with the sustainable development in developing countries.
So the first paragraph, Paragraph 7, provides:
“We are concerned that the rule of law and development are strongly interrelated and mutually reinforcing, that the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth and sustainable development, as well as the eradication of poverty and hunger and the full development of all countries. All of which, in turn, reinforce the rule of law, and for this reason we are convinced, we the General Assembly are convinced, that this interrelationship should be considered in the post-2015 international development agenda.”
And the post-2015 agenda is now being considered. It is a huge initiative on development and we shall see, maybe hear, some words on that later.
Paragraph 8 adds a little bit more to the insight into sustainable development of developing economies under the rule of law.
“We recognize the importance of fair, stable and predictable legal frameworks for generating inclusive, sustainable and equitable development, economic growth and employment, generating investment and facilitating entrepreneurship. And in this regard we commend the work of the United Nations Commission on International Trade Law in modernizing and harmonizing international trade law.”
Many of you are already familiar with UNCITRAL and the work that UNCITRAL does. But these are the two paragraphs of the 42 paragraphs in the Declaration that focus specifically on the topic of economic development, sustainable development, in developing economies, in developing countries.
With that, I would turn over to Edric to give us some kind of context and background about the United Nations initiative as it has unfolded and what we hope to accomplish under that initiative. Edric.
Mr. Edric Selous: We thank you very much and thank you for the introductions and the opportunity to speak. It’s much appreciated. I thought I would just give a little overview actually of the context of my unit. It a very small unit. It’s actually in the immediate office of the Secretary General and just to show the importance that the Secretary General places on the rule of law, he only has four small advisory units in his immediate office. One deals with peace and security, one deals with development, one deals with overall strategic planning for the Organization and other one is the rule of law. So it’s very much at the front and center of the thinking of the Secretary General so I’m very pleased to be the head of that unit.
I wanted to start by borrowing an analogy from a speech that Professor Amartya Sen gave in 2000 at the World Bank. It was the first conference of comprehensive legal and judicial development. Professor Sen referred to an exchange between John Hancock and Benjamin Franklin on the signing of the American Declaration of Independence, where John Hancock is reported as having observed, “We must be unanimous, there must be no pulling different ways, we must all hang together.” To which Ben Franklin responded, “Yes, we must all hang together or most assuredly we shall all hang separately.” Now while Franklin was talking about the interdependence of the security of different groups of American revolutionaries, Professor Sen observed this was a most apt statement when considering the interdependence of different aspects of human development. He argued that if different aspects of development are not simultaneously addressed and considered together, they many each end up as he said, hanging separately.
So indeed in the context of the work of the United Nations, there is growing recognition of the linkages between the three main pillars upon which the UN is built – International Peace and Security, Human Rights, and Development. All three are strongly interrelated and mutual reinforcing. To borrow the words of Franklin through Professor Sen, they must all hang together. As a Deputy Secretary General often says, there can be no peace without development, no development without peace, and neither without full respect for human rights and rule of law. Indeed the rule of law is key to all three pillars and as you are well aware the rule of law is a concept at the very head of the United Nations mission.
In September of last year, as Bruce has already indicated, the General Assembly held a high level meeting on the rule of law adopting a declaration on the rule of law on the national and international levels. The declaration reaffirms member states’ commitment to the rule of law, stating that all persons, institutions, and entities, public and private, including the state itself, are accountable to just, fair, and equitable laws and are entitled without any discrimination to equal protection of the law. I think this was one of the major accomplishments actually from the declaration, because, indeed, the rule of law is a very nebulous concept to many and the Secretary General had in fact adopted a definition of the rule of law back in 2004 and has been promulgating that definition for some time, a definition which both includes the procedural side of the rule of the law but also a substantive side. So the procedural side being more about strengthening judicial institutions and legal frameworks to make everybody accountable to the law including the state, but also incorporating substantive provisions around human rights protections for individuals that are subjected to the legal framework. So the declaration also affirms the rule of law’s fundamental importance for political dialogue and cooperation among all states, and for the further development of international peace and security, human rights and development.
So how is the rule of law linked to the three pillars. The rule of law is critical to international peace and security. The charter provides the normative basis for friendly relations between states, which together with other relevant treaties and customs, the ICJ, and other international tribunals, create the international legal framework. Additionally, there is no question that strengthening the rule of law within states when this is broken down is important to the maintenance of peace and security within that state as well as regionally and internationally. The World Bank, in its 2011 World Development Report, provides strong empirical evidence on the connection between stability, economic development, and justice. The report argues that strong justice and security institutions coupled with robust job growth is the sina qua non for stability and sustained economic development in conflict and post-conflict societies and to overcome sustained cycles of violence.
The rule of law is also critical for human rights. Human rights treaties since the 1948 Universal Declaration have relied on the rule of law as the foundation of the protection of rights. Indeed rights are empty words in the absence of a legal and political order in which they can be realized.
Finally and most importantly to the discussion this evening, there is growing international consensus that the rule of law is key to sustainable development and economic growth. Already in 2005 the World Summit outcome document explicitly stated that the rule of law is essential for sustained economic growth, sustainable development and the eradication of poverty and hunger. Building on this the high level declaration on the rule of law that was passed in September, makes a clear statement that the rule of law and development are strong interrelated, as Bruce has quoted for you, and mutually reinforcing, and that this interrelationship should be considered in the post-2015 international development agenda. The connection between weak rule of law and poor economic development is therefore clear. And the economic consequences of weak legal institutional frameworks are acute. Research indicates that the business costs incurred industry worth $120 million a year to Somali pirates operating with immunity off the coast of Puntland is a total of between $1 and $3.3 billion. To put this in context, the extra spending due to piracy could finance a year of employment for well over one million Somalis. Foreign direct investment can be a valuable tool to revitalize industries and rebuild infrastructure and weak justice institutions are cited as among the most significant factors driving away foreign direct investment in post conflict countries.
Rule of law deficits also have strong indirect effects on economic development. For example, Libya’s economy is deeply dependent on labor migration from the Sahel. Treatment of migrant workers in the custody of Libyan police and correction institutions will have an impact on whether migrants will return to Libya to work in the future with profound consequences on the countries rate of economic recovery. Libya’s treatment of migrant laborers will be one test of its commitment to the rule of law. Similarly, positive legal reform affects growth. The value of rural land in Brazil, Indonesia, the Philippines and Thailand for example, increased sharply when people were given title deeds, because owners were more willing to invest with intended certainty of ownership. The rule of law therefore increases contractual security, lowers levels of corruption, allows for timely transparent and predictable resolution of commercial disputes which all in turn the effect the economic climate for businesses. An interest in investment, particularly at the level of small and medium size enterprises more susceptible to local conditions.
That there is a strong link between the rule of law and development is clear. The challenge for us, however, is how best we can support the strengthening of the rule of law. Strengthening the rule of law has frequently been equated solely with the reform of justice institutions or legislative drafting, and this was indeed the focus of early rule of law support by the Organization or law and development as it was known. Moving out of the vicious cycle in which low growth leads to weak institutions, causing continued low growth, will require working on a broader notion of the rule of law that will include several dimensions as well as strengthening institutions it must involve strengthening transparent and participating norm making processes, rights awareness, and enhancing access to justice. We need to go beyond limited legal and institutional reform to strengthening the rule of law as part of a comprehensive approach to development linking all three United Nations pillars. Indeed one of the significant mandates to come out of the high level declaration on a rule of law was a decision to mainstream the rule of law across all United Nations Activities and for the rule of law to be considered in the post-2015 international development agenda. Work around that agenda consistently acknowledges the need for a strong rule of law development strategy, something that was missing in the Millennium Development goals. Indeed, it is significant that the countries with the most severe challenges to the rule of law, post-conflict and fragile states in particular, have not met a single one of the Millennium Development goals. The challenge here will not be the justification of the importance of the rule of law to sustainable development, but to its political acceptance in a world fraught with inequalities and vested interests. So, ladies and gentlemen, I hope that I have given you a tour de force of the strategic approach that the Organization has on the rule of law and the view of the Organization that there needs to be a much more comprehensive view of economic growth that incorporates rule of law as a foundation. Thank you very much.
Mr. Rashkow: We are now going to move from the UN, at the 50,000 foot level–-the principle and policy level, to the more practice level with our next two speakers. These are people who are experienced in what it means to encourage, support, and seek to develop the economies on the ground in these less developed countries.
Our first speaker will be Aaron Ambia. First, Aaron will read a short paper that Laura Chenoweth, who was supposed to be with us but couldn’t make it, had drafted with some preliminary remarks dealing with some of the practical issues that she and Pfizer–-she is a deputy general counsel at Pfizer, had encountered in their efforts to develop businesses in developing countries. He will read her paper with some preliminary comments, and Aaron will then add his own significant insights from dealing in Kenya and in Africa, and the problems that he has seen with western firms, as well as other firms, seeking to develop business in Africa. So I would like to welcome Aaron–-and then we have Larry to windup.
Mr. Aaron Ambia: Ladies and Gentlemen, good evening. It’s a pleasure for me to be here and this is a wonderful meeting just to see people who are interested in learning how doing business in developing countries and from a developed country prospective I think this is certainly good. This spells goodness for African countries and especially as an African lawyer being here and seeing a lot of people who are interested in investing in Africa or people who are interested as guides for people who want to invest in Africa that is certainly good news.
I will just read Laura’s remarks then I will proceed on and give mine. This is what she wanted to share with you:
Those of us who spend the majority of time working in the emerging markets truly applaud and appreciate the efforts of the UN to reinforce the critical importance of the rule of law. I had intended to speak about the emerging markets as a general matter the impact of rule of law and issues that corporations are facing when they do businesses in places with a less developed rule of law.
The emerging markets are being heralded as the wave of the future. Numerous factors support this belief. Population growth rates dwarf those of the developed markets. The middle class is growing and government are more focuses on benefits and cost of health care than ever before. However, there are often other factors in play. In the emerging markets we don’t general encounter in the developed world anymore. Factors like widespread social upheaval, disruptive political events, lack of availability of public information about companies, massive bureaucracies and compliance risks. These all have practical implications for your approach to providing advice for your clients and the sorts of contractual and adapt protections that you will typically rely on the more developed markets. Developed markets may not help much to mitigate these risks. This can also be a rude awakening for the corporations we advise. Our clients want to know will this be done, will this work. What happens if they don’t perform as expected. And how can we mitigate risks. The answers to these questions can be difficult to ascertain.
I see the challenges of advising your clients as falling into three broad categories. The first one: where the rule of law is less developed and these are countries whose systems are not yet well developed. These are countries for example that don’t have adequate laws together for corruption and together for regulatory compliance. The second category: where the rule of law is subject to biases and political and social pressures. For example where you have countries whereby after every change of political administration then, new government appointments, you have new government appointments, you have changes in regulation that really do not conform to any objective criteria but are rather are subject to. And then the third criteria: where the rule of law shifts due to changes in government of regulators. Now the nature of the challenge will dictate the approach. Whether to seek additional diligence upfront, use specific structures to offset risk, build in financial protections and other self-help measures, take advantage of the positive developments in the international arbitration arena among others.
The take-away from all this is not that we should shy away from investing and operating in this highly lucrative markets. Hopefully, we as international practitioners can learn from our past experiences and each other and put that knowledge into good use. Some promising movement exists and many of these markets are starting to focus on the need for a strong legal infrastructure as a basis to support international investment and are implementing measures to enhance their profile as an attractive place to do business. The UN’s rule of law efforts have been a key awareness driver in this area and their inference has been significant. In the meantime, we lawyers continue to work to protect our clients and their interests and they seek to increase their footprints in the emerging markets. Just remember to do your due diligence, find great local counsel, and other experts who can help you to navigate the local market and that the traditional rules do not necessarily apply. And remember to advise your clients with a level of flexibility and out of the box thinking that typically does not come into play in the developed markets because you never know what is going to come your way.
Now from Laura’s remarks I just have some to add. Some bit of practical experience. In my case, I worked with a leading law firm for a period of five years before I came to the U.S., and I had a lot of exposure clients both big and small who wanted to invest in Kenya and from a practical perspective I noted three points that I wish to share with you even as you think about the wider perspective of doing business in developing markets from a North-South perspective; that is, clients from the western world investing in the developing countries and perhaps my experiences may not necessarily be the case as is elsewhere but certainly from an East African perspective, and also from an African perspective, I believe that these are experiences that practitioners are likely to experience. And the first thing is that in terms of rule of law, there is a close connection between development, rule of law, and even clients who, and even investment, and this is the case that consider this: A lot of the news we hear about international companies, sadly, and investing in Africa, and the connection with the rule of law, the connection has been that, for example, multinational corporations, they disregard the rule of law and we have had numerous examples in the past especially in extractive industries in terms of displacing people from land and natural resources, in terms of diluting cultural knowledge and cultural heritage. But, however, perhaps what we shall also highlight is that this investment made in developing countries and in Africa specifically, they also benefit the local population, they bring about jobs, they spur innovation, they also spur local entrepreneurship. For example, the medium-sized enterprises, the local enterprises that later serve as value chain, those enterprises that contribute to the value chain of this foreign multinational corporations. And then another perspective is this, that rule of law, the challenges to rule of law are not per se because people are bad or politicians are bad, but rather they reflect certain underlying dynamics in society. For example, where people don’t have jobs, for example where politics is such that it’s a competition for scarce resources and in that case if you do not see an end to that scarcity, if there is no end in sight for that scarcity, if populations, if politicians, if they continue to view that state power as a way to get the resources they need, then they are likely to continue ruling with impunity, they are likely to disregard aspects of rule of law and they are likely to not introduce the specific reforms that will be required to build a strong rule of law from that. And so for this reason companies that invest in Africa, companies that invest in multinational, companies that invest in developing countries, play a great role in terms of from enhancing productivity and enhancing the economic space and therefore dealing in a way with those dynamics that in the first place will bring about challenges to the rule of law.
And secondly, the other aspect that I want to focus is even as the UN and other international development agencies, and as well as western governments, focus on promoting rule of law in developing countries and specifically in Africa, I know there are a lot of initiatives by U.S.A.I.D., by Swedish international development agency, by the German development corporation. A lot of these initiatives they have done a lot to contribute to the rule of law in terms of sponsoring, for example, establishment of more courts, sponsoring the employment of and training of policemen and other necessary staff that are required to enforce rule of law. They’ve also played a great role in terms of just contributing to the development of human capital and contributing to resources, for example, of textbooks in law schools. And this is one way in which they have developed towards the rule of law in Kenya. Now, the other aspect that I also want to emphasize is this: that as these multinational agencies work, do their part, as governments do their part, businesses and individuals also have their part. And by this I mean that as more and more societies become democratic, as space for free flow of information is being opened, more and more people are becoming aware of what their rights are and in this, this is a major step in terms of securing rule of law. Now, when it comes to corporations, they also have a role to play and from my perspective, what I think that they should consider is to come together and stand for principles that are going to bolster rule of law efforts. And by this I mean this, that, for example, business associations they are formed by multinational corporations or western corporations or other sources of foreign investment that come into developing countries, that come into Africa and they, you form an association that advocates for observance of the rule of law. And by this I mean that, for example, in terms of procurement, that they will come together and stand in for their members and sort of present a front, a front that stands for rule of law and that in a way has an effect of sort of pushing the boundaries so that we have the world’s impunity as more and more people speak out, as individuals speak out, and as associations speak out. Then it expands a space for observance of rule of law and why I’m emphasizing on coming together and sort of forming this association is because at times it is difficult to go it alone. I mean, a lot of the times, the challenges are, you cannot deal with all the challenges alone. You cannot deal, for example, with, if some of the businesses I dealt with for example, you had to deal with licensing issues, and those are licensing issues that you have to, at the inception of the business, you have to pursue those licenses. Now, the question that a lot of my clients will think is this, that what if I’m the only one who is voicing concerns about the delays. What if I’m the only one who is voicing concerns about rent seeking, what would happen to my interests? And so for that reason then you can see it’s clear, the need for to come together, it sort of binds them together and in that way it also helps to mitigate the risk of victimization.
And the third thing that I also want to emphasize on is, we as professionals, we as lawyers, bankers, auditors, we do have a role. As Laura said in her remarks that perhaps we need to focus on doing better due diligence. Perhaps we also need to focus on choosing your agents well on the ground. And also other practical considerations in transactions, for example, when you’re dealing with a client in a developing country, how tight are your deadlines. Are you giving them unrealistic deadlines here by assuming they have the same automated systems as you’d have in New York? Or in London? Where you’d assume that they had the same automated system as for filing leases, for filing company documents. That’s hardly the case in many of the developing countries. And the fact, for example, when in transactions you give tight schedules then what will someone do? Then the risk of challenges such as introducing corruption, the risk of untrusting, the risk of bribery does increase. And then the other thing is how are you when you are giving instructions. Are you, for example, timing it as a transaction that must happen or are you just raising it as an open question. Because the thing is this, that, for example, if you come, if I’m instructed and asked “Is it possible to obtain a license” for a particular form of stock transaction or for a particular type of security transaction. And even if it’s not in the law, or even if it’s not formulated in the law, the thing is that there is a tendency that I would respond in the way that I think you want me to respond. This is the, because of, of course I have incentive, of course I want the money. Of course I want the prestige. So then that then highlights the importance of how do you frame the instructions? The other thing that also that I want to point out is, and this is something that we also need to think about is, as we discuss all this, a lot of rule of law for now, you need to understand that the compliance, the issues to do with compliance, issues to do with getting regulatory approval. While this may seem to be easy, let me put it easy for big companies because they have the resources, big firms because they have the resources or investors who are the resources how about a small investor who wants to start a project on carbon credit, an investor, for example, who wants to start a project on wind farms, an investor who wants to start a project on a tourist lodge, and this is a small investor who does not have the resources that you’d expect a large investor to have. We also need to think about them in the context of “rule of law” because I think from a Western perspective, then, their exposure, their exposure to certain failures in the system that make them prone to rule of law abuses, and in this case, I mean issues of corruption and issues of not complying with the regulations. They are more exposed to that. So that we also need to think, “How are we going to protect them better?” So with that, thank you very much, and I look forward to hearing your questions. Thanks.
Mr. Rashkow: Thank you very much, Aaron. That was very insightful, at least for me, to get some feeling for what it’s like to do business on the ground in Kenya and Africa. Now we are going to wind up with Larry’s presentation. And it’s going to drill down into an area that is critical to the rule of law and to the issue of dispute resolution, including agreements to govern the investments and other activities.
Larry is going to essentially address the use of multilateral and bilateral investment treaties to foster development by providing foreign investors in developing countries with treaty-based legal protections that are enforceable by international arbitration and tribunals–-and, thus, are not dependent on local laws in courts. With that, I would introduce Larry and look forward to his presentation.
Mr. Lawrence B. Friedman: Thank you, Bruce. As Bruce said, I will address one of the methods by which the international community has attempted to foster the “rule of law” as applied to developing countries and thereby to promote investment and development in those countries, which is through bilateral and multilateral investment treaties. These treaties are intended to achieve these goals by providing investors with the inducement of supranational, treaty-based protections for their investments that are enforceable by supranational arbitration tribunals.
So, what we are doing through these treaties is creating a supranational set of protections that applies independently of national laws and that will be enforceable through arbitration that is not dependent on national courts. And I will also address the recent growth in these arbitrations under these treaties and recent criticisms of these arbitrations, including questions that have been raised as to whether their results are actually undermining the goal of fostering development-related investment by causing developing countries to have doubts about the impartiality of these mechanisms.
Now, when we refer to these multilateral and bilateral investment treaties, we’re referring to agreements between States where each State agrees to protect, in its own territory, certain enumerated rights of investors who are nationals of the other country that is party to the agreement. So, for example, if you have a bilateral investment treaty between Canada and the United States, each country agrees that nationals of the other country that invest in their country – in their territory – will enjoy certain protections that are enumerated in the treaty. It is on a bilateral or a multilateral basis, creating through a treaty what might be perceived as being “missing” in a single country’s national legal system. And these mechanisms also provide for an arbitration remedy to enforce these rights. Again, the notion being that there might be something lacking in the national legal system; there might be something lacking in the national courts, national enforcement mechanisms that can be compensated for through these treaties.
They fall into two basic categories: bilateral investment treaties, of which there are nearly 3,000 worldwide, agreements between two states. There are also multilateral investment treaties, in which several countries engage at the same time.
For example, we’re all familiar with NAFTA, the North American Free Trade Agreement, which is, in the main, a trade agreement between Canada, Mexico, and the United States. But there’s also a chapter in that treaty on investments, in which each of the countries agrees to protect the investments of others.
And the preambles to a lot of these treaties expressly state that they are intended, at least in part, to encourage development by fostering the rule of law, and thereby to foster foreign direct investment. And the arbitration component of these treaties is critically important because, again, someone who’s interested in investing in a developing country wants to know not only that he or she will have the substantive protections that are enumerated in the treaty, in addition to what might be provided for in national law, but also that these mechanisms can be enforced by means that are not dependent on the national courts.
One of my predecessors quoted a Philadelphian, so I will quote an Irishman. There’s a recent study of these arbitrations that was published that has a quotation from an 1861 novel entitled The Diary of an Irish Countryman, which I think applies very much here. The quotation is, “There is little use in going to law with the devil while the court is held in hell.” And the notion here is that if you don’t want to be subjected to the vicissitudes, and perhaps the problems that you might encounter in a national legal system, you provide for a supranational arbitration system.
Now many states, especially in the developing world, have signed these treaties with the thought that they will help them to promote development by attracting foreign capital, fearing that foreign investors might otherwise decline to invest absent the protections for which these treaties provide.
Now prior to the advent of these treaties, we relied on treaties of friendship, commerce, and navigation. These were primarily focused on trade rather than investment, and they didn’t have dispute resolution mechanisms. And in fact, if you were an aggrieved investor in a developing country, or even in a developed country, and you wanted to rely on a treaty of friendship, commerce, and navigation, you would have to rely on your home country invoking the power of diplomatic protection under that treaty in order to vindicate your rights.
Now the countries of the world are trying to achieve these goals, encourage investment, in turn to encourage development, by providing for the rule of law as reflected in these treaties, either bilateral investment treaties, which are referred to as BITS, or multilateral investment treaties.
The first treaty that we know of this nature was signed by Germany and Pakistan in 1959. There were 75 of these treaties that were concluded in the ’60s, 92 that were concluded in the ’70s, 219 that were concluded during the ’80s, and 2,200 that were concluded between 1990 and 2010. The United Nations recently reported that there are over 2,800 bilateral investment treaties currently in force.
Now, just briefly, how do these treaties work? They work by providing for, as I said, enumerated protections for investors in certain areas. The most important protection is a protection against loss due to expropriation. Most treaties guarantee that if an investment is expropriated, the investor will receive just and adequate compensation.
And they provide for protection against direct expropriation and indirect expropriation, which can be caused by an exercise of a police power, for example, through taxation or through environmental regulations.
A second key is a provision that guarantees fair and equitable treatment, and a fair and equitable treatment clause is generally interpreted to include fundamental principles we’re all familiar with: good faith, transparency, the protection of legitimate expectations, and freedom from discrimination.
Another type of provision we’re all familiar with is a most-favored-nation treatment clause that provides that you’ll be treated no less well than the nationals of other parties, as well as national treatment, or non-discrimination clauses, that provide that you’ll be treated in the same way as domestic parties.
And then finally, and this is critically important, these treaties contain enforcement mechanisms that provide for these rights to be protected by way of international arbitration. And the international arbitration can occur through one of the familiar international arbitration institutions, such as ICSID, the International Center for the Settlement of Investment Disputes, the International Chamber of Commerce, or others.
There are rules that UNCITRAL has published, pursuant to which these arbitrations can be conducted, and these arbitrations can be conducted under the aegis of a variety of international organizations, including the Permanent Court of Arbitration.
And the way these arbitrations work, I’m sure, is familiar to most of you. You have an aggrieved investor file a Notice of Arbitration. The claimant–the investor claimant–will select an arbitrator, the respondent state will select an arbitrator, and the two arbitrators together will select a chair. And usually you have an arbitral panel of three that sits and conducts an arbitration involving the submission of written witness statements, cross-examinations of the witnesses who submit those statements, and briefing and evidentiary hearings. The duration of these arbitrations can vary anywhere from three to five years.
Let me give you some examples of some traditional claims that have been made in these arbitrations, so you can get a sense of how this mechanism is used to provide legal protections to foster development through fostering direct investment and fostering the rule of law.
I and some of my colleagues at Cleary Gottlieb, who are in the audience, are involved in what is reported to be the most substantial of these arbitrations in history to date, in terms of the remedy that is being sought. We’re defending the Russian Federation, which is being challenged under a multilateral treaty known as the Energy Charter Treaty by the majority shareholders of Yukos Oil Company, which many of you have read about, an oil company that ultimately was liquidated in Russia for failure to pay a variety of taxes. This is a company that was run by Mikhail Khodorkovsky, who many of you have read about as well.
Yukos was adjudicated in multiple proceedings in Russia to have failed to pay more than $20 billion dollars in taxes–Mr. Khodorkovsky also was convicted on tax evasion charges–and my firm has been working for many years on an arbitration claim brought under the Energy Charter Treaty, a multilateral investment treaty, by the majority shareholders of Yukos, who are seeking more than $100 billion dollars in damages.
Now, note, you may be asking yourself how could this be a claim under a multilateral investment treaty because it’s Russians suing Russia with respect to the alleged expropriation of a Russian oil company? But what was done here, not to cast any aspersions on it, it’s a perfectly common practice, is that the majority shareholders of Yukos owned their shares in Yukos through an Isle of Man holding company and a Cypriot holding company. Well, Isle of Man, under the aegis of the U.K., and Cyprus, are independent nation states in Europe, which are parties to the Energy Charter Treaty, and Russia is a party to the Energy Charter Treaty as well.
So there you have it. What seems like a domestic investment dispute now has become an international investment dispute under the aegis of the Energy Charter Treaty. That’s a traditional claim, a claim of indirect expropriation, although with a twist of Russians suing Russia in Russia over an oil company, yet doing so under an international treaty.
Another case that has recently been filed involves an American businessman who invested in the radio industry in the Ukraine and feels that he was not granted the same treatment in applying for bandwidth as Ukrainian investors, and he has brought a claim.
There are also non-traditional claims out there today. Philip Morris, for example, is pursuing claims against Uruguay and Australia, claiming that the labeling requirements that these countries are now imposing on cigarettes, similar to the labeling requirements that we’re accustomed to here, are a violation of their right of fair and equitable treatment under bilateral treaties involving Uruguay, Australia, and the United States.
When Germany decided to phase out nuclear power in the wake of Fukushima, a Swedish company brought a claim against Germany under the Energy Charter Treaty, because its plans to build a nuclear power plant were left in the lurch. These arbitrations have been growing enormously over the last couple of decades, to the point that, as of today, it’s reported that there have been a total of 450 of these treaty-based claims.
And it’s interesting that, of the 46 new cases reported in 2011, 38 are reported to involve claims against developing or transitional economies. Venezuela has been sued in 10 of these cases, followed by Egypt and Ecuador with four each. And it doesn’t take too much of a leap to think about why Venezuela and Egypt in particular all of a sudden are finding themselves on the short end of the stick in these multilateral and bilateral treaty arbitrations.
So you can start to understand why this phenomenon, this methodology that was created in order to foster foreign direct investment, to foster development through the injection of the rule of law through these treaties, is now being questioned as to whether it really is serving the objectives for which it was designed.
A lot of the countries of the world are starting to ask, are these arbitrations yielding fair results? Who are the arbitrators, and where do they come from? And do they have a political or a financial interest in the outcomes of these arbitrations, that is, do they involve something that is more than meets the eye.
There’s a recent study that was published in Europe that contends there’s an elite group of 15 arbitrators, nearly all of whom are from Europe, the United States, and Canada, who have served on tribunals in more than half of the 450 cases known to date, and who have served in 75 percent of the cases involving claims of $4 billion or more.
Scholars are also disagreeing about whether these treaties really are playing a meaningful role in fostering investment and fostering development, or instead are there other factors that are more important–some of the factors that were discussed earlier, for example thestability of the nation state and the attractiveness of the conditions in the nation state. People are also asking today whether, to the extent these arbitrations don’t yield fair results, are they having a negative impact on development and a negative impact on the growth of civil society?
For example, if a country adopts environmental regulations that lead to claims under these treaties, is that a good thing or a bad thing? Is that chilling developing countries from developing in a responsible way, or is it really promoting development?
And in the last couple of years there has been quite a backlash against this phenomenon of using investment treaties to promote development. In 2007, Bolivia withdrew from the ICSID Convention. In 2008, President Chavez in Venezuela denounced the Venezuela-Netherlands treaty. When Ecuador, four years ago, found itself facing complaints seeking compensation that would amount to 20 percent of its gross domestic product, it withdrew from the ICSID Convention.
Brazil has refused to ratify any of the treaties that it has signed. Australia no longer includes investor-state dispute settlement provisions in its trade agreements. And last year, Venezuela officially denounced the ICSID convention and withdrew from it.
On the other hand, the United States and China are very active proponents of this method of fostering development.
In sum, if you are exploring the promotion of the rule of law in order to promote development, you can’t ignore this phenomenon.
These treaties are proliferating, and the proceedings that are brought under these treaties are proliferating as well. And one might argue that while, as originally conceived, these treaties were well-intended and well-designed to promote foreign direct investment in the developing world by providing for these supranational frameworks of protections and enforcement, perhaps in practice the pendulum has swung too far in the other direction, and the way in which these treaties are now being applied risks thwarting development.
Those who are involved in this process, involved in these structures, are considering ways of reforming the process, perhaps to address some of the concerns that have been raised. Perhaps by providing for appellate remedies or providing criteria for the credentials of arbitrators that are not currently in place.
But this is an example of the difficulty of bringing the rule of law to bear in order to foster development, and how the very best of intentions may not yield the very best of results. Thank you.
MR. RASHKOW: Well, we’ve had some very interesting presentations, at least I thought they were interesting, and I learned a great deal. By way of the very provocative comments that Larry made about some hostility, or some skepticism of arbitration in developing countries, I remember when I was with the United Nations. My office handled–for the first time, we instituted international arbitration to handle commercial disputes within the United Nations, and we had many–half-a dozen or so in about a year or two, or three. We were called down to the General Assembly regarding our handling of the arbitrations.
Basically the questions we were asked–who selects these arbitrators, and why are so many of them from Western countries–and what financial interest do the arbitrators have — and are they paid on the basis of who wins or loses?
It was a reflection that there was large misunderstanding, if not skepticism, or suspicions, about arbitrations and who handled them–the whole process. So I’m not surprised to see that there were these kinds of questions coming up in this context in the bilateral investment treaties.
But be that as it may, I hope that we’ll have lots of questions from the audience. We have about 20 minutes or so to answer your questions, and I hope we provoked some of you into thinking about questions. So Richard, do you have a question?
RICHARD: Yes, thanks. Thank you to the whole panel. That was a very nice–
MR. RASHKOW: Would you introduce yourself–
–rule of law. My name is Richard – – . I – – . I wonder, you focused on civil actions and then going through arbitration with bilateral – – treaties–multilateral. At the ABA, I’m hearing–the issue has come up with criminal actions that might require international cooperation.
And groups that are starting to think about studying this that say that the MLATs aren’t addressing multinational cooperation well. It takes months to deal with any criminal issues through those treaties, and there should be a better way. Do you have any view on that?
MR. FRIEDMAN: I don’t have a particular view on it, but I know that you would hear–if there were someone with greater prosecutorial experience on this panel than I–you would hear a lot of concern expressed about that, and whether the multilateral assistance treaties that you’re referring to among the law enforcement agencies of the world really are functioning sufficiently.
And you know, when you hear press reports and a lot of discussion about the, some would say, extralegal techniques that are used from time to time to bring people accused of crimes to justice, I think it reflects some frustration with the MLAT process.
So I don’t know the nature of the criticisms that you’re referring to, but there is a great deal of concern, I know, among the law enforcement agencies of the world as to whether these treaties are sufficient, and whether some of the excursions outside the boundaries of these treaties that we’re experiencing, some say by the United States, as well, reflect the shortcomings of that process.
MR. RASHKOW: Yes sir?
MALE VOICE 1: I think you used the word nebulous to describe the rule of law and I think the points to the fact that it’s a contested concept. If that’s the case, how do you get a consensus among disparate cultures? Because if there’s no consensus, then anyone can use regulations, a rule of law to justify oppressive treatment. For instance, how does one justify the oppression of women? What we have done is answer your question – – it’s not oppression. And even some – – support – – .
MR. SELOUS: Certainly. I mean the–as I said, the–
MALE VOICE 1: – – .
MR. SELOUS: To repeat the question, I think the question essentially was, in view of the relatively disparate nature of people’s views on the definition of the rule of law, how can we then have a sort of concerted policy on addressing some of the most obvious rule of law deficits.
For instance, whether it’s deficits in human rights and in particular countries with poor human rights records. I mean, from our perspective, of course, what was essential for us within the Secretariat and was to push the agenda forward on getting a more international vision on what the rule of law means.
So to that extent actually, the high level declaration was based in part on a report that the Secretariat in my unit coordinated in producing what we believe is a map of what the rule of law entails. And you’ll see from the breadth of the issues covered in that declaration that indeed, the assembly took that up.
And I think one of the major achievements from that combined work was actually in one document to put down the full spectrum of what were considered rule of law priorities for member-states. So I think that was an important aspect of the declaration in terms of providing sort of very concrete areas for what the rule of law covers.
But secondly, I think–and this was something which was highly political–was the incorporation of the quote that I put in there of what the rule of law means, which is that all persons, institutions, and entities, public and private, including the state itself are accountable to just, fair and equitable laws, and are entitled without any discrimination to equal protection of the law.
Now indeed, this actually took the meat of the Secretary General’s 2004 definition. It’s a little more truncated than that definition. But it took the meat of it, which is that essentially everybody is subject to the law, and those laws must comply with international human rights standards.
So that, I think, was a major achievement of the international community to come together, all 193 states agreed to that–those building-blocks of a definition. And for us, it was important to get that in, because this is a platform then to be able to use to advocate for, in those states where human rights records are–there are significant rule of law deficits–to advocate for a common position, which has been reflected in an international document.
So I do think of course, you know, we’re not going to overnight suddenly change the way the world operates, but I think this was an important document for the reasons I’ve just mentioned.
I just wanted to add just one thing on MLATs. And that is the complication on multilateral requests. And very often the organization is involved in areas where mutual legal assistance may need to go to benefit the organization. And indeed, that’s been a major challenge, because MLATs, Mutual Legal Assistance Treaties, are bilateral treaties.
And for instance, the organization was involved in for instance, in the Iraq food program. And very often we would require some information to facilitate investigations in that area, and it was very difficult to get any information out of member states relating to information on that program.
In addition, we have certain cases where funds are coming from one state to facilitate a contract that is being operated in another state, and there may be a very high value contract, and we have had challenges in being able to get information–held for instance in Swiss banks, which would implicate individuals that we had evidence would–were subject to fraud and corruption.
And essentially it was because the MLATs, although bilateral, even when we informally approached one side to say, well, if you provide the–if you make the request for the information, once you receive it, you can release it to us and then we can engage in a prosecution as the injured party.
As soon as the other state heard that the benefit of the information was for a third party, they would refuse to comply with the MLAT provisions. And this has been a major issue for us in recovering monies through that bilateral process as a multilateral organization. So I just wanted to make that comment, thanks.
MR. RASHKOW: Yes sir?
MALE VOICE 3: Larry, do you have any data on how many mega awards to cases like you’ve described have been satisfied, acknowledged, adjudicated?
MR. FRIEDMAN: I’m afraid I don’t. But you–by asking the question, you underscore a further concern that one can have about the efficacy of the process I described which is, what is the end result in terms of the enforcement of the award? And I think you will see this problem growing to the extent we find the amounts of the claims that are being brought and the amounts of the awards are growing.
For example, just a couple of months ago we saw what has been to date the largest reported award in a case against Ecuador, which was for $2 billion. And I think the community that focuses on these processes is wondering to what extent that award will be satisfied.
MALE VOICE 3: How does one levy the assets of Ecuador?
MR. FRIEDMAN: One finds Ecuador’s assets where one can and tries to levy on them in conformity with the national law of the location that you’re dealing with. For example, in the United States, where sovereigns have the protection of the Foreign Sovereign Immunities Act, it can be a real challenge to find assets on which to levy.
MR. RASHKOW: Yes, ma’am. Can you speak up just a little bit, please?
FEMALE VOICE 1: – – . How to deal with – – .
MR. RASHKOW: Larry, you want to take a crack at that?
MR. FRIEDMAN: Well, I think that, again, you’re finding that investors really want to promote this–as I refer to it–supranational mechanism, precisely because they don’t trust the national courts and they don’t trust what they are going to do.
I don’t know if this is responsive to the point that you were making, but one of the reforms to this process that people are considering is whether we should have some kind of appellate body that will sit over the supranational framework in order to reduce the impact of the kinds of aberrations that I think you were referring to or what are perceived as aberrations.
But again, that raises the question, who’s going to sit on that appellate body, and what interests are the members of that appellate body going to be answering to, and are we just creating another international body which is going to suffer from the same deficiencies as the prior international body?
It’s very difficult to find a solution to these issues. First, you have the dichotomy of whether you’re going to rely on national institutions, or whether you’re going to create and try to rely on international institutions. Once you opt for the international institutions, how could you possibly structure them in a way that is truly going to be objective and unbiased? It’s extremely difficult.
MR. RASHKOW: Just before I–we have a little bit more time for questions, but I’d like Aaron, maybe, to respond to the comments that Larry gave about the issues being raised by bilateral investment treaties in arbitration, and whatever experience you may have, and insight into–in Kenya and Africa in that regard?
MR. AARON AMBIA: In terms of bilateral treaties, my experience was that they do not influence the private investor, but they may come in–they are important, especially when it’s a step to step transaction. It’s a step to step investment.
Whereby, for example, you have a development bank from–they developed while investing in a business in Kenya. That’s when I found those treaties to be critically important and many other times where they would fall back on those provisions.
And also they would have the role of sort of clearing the path, whereby some of those bilateral treaties would actually exempt certain categories of licenses and regulatory compliance. That’s in a way that would help the businesses that were trying to invest. But again, as I say I do not see a lot of them playing a role when it came to the independent multinationals or the small investors investing in Kenya.
MR. RASHKOW: Yes, ma’am?
FEMALE VOICE 2: You may have just answered my question, which was Larry – – raised the question of whether having super-national – – promote international development. And I was wondering if any of you had insight into–from a transactional point of view–whether investors are thinking dispute resolution mechanisms — whether the local courts – – super-national mechanisms. How much investors are actually taking that into account where they are investing locally?
MR. RASHKOW: Larry, I’m going to have to give that one to you.
MR. FRIEDMAN: Well, I just know from reading some of the studies that we’ve looked at that scholars try to run econometric models to determine whether there are, in fact, investments that have not occurred but for the prospect of treaty protections enforceable through arbitrations. And of course, it’s very difficult to tell.
And that was the question raised, what does this all mean if the remedies that are provided for are not enforceable, and you can’t levy? Personally, and anecdotally, I believe what matters more to investors is what’s on the ground in the national legal system and in the national court system.
And there’s, I personally think, but again, just from an anecdotal perspective, it’s less likely that a potential investor is going to be influenced by the prospect of relying on some supranational structure that would yield a remedy, the enforceability of which is highly questionable.
But I was also impressed by something I read in preparation for this presentation tonight — that investors will look at the fact that a country has dedicated itself–to a bilateral or a multilateral investment treaty–as a signal, as an indication as to whether the country is really interested in being viewed as a responsible host for investment.
But I’m reminded of what I deal with as a litigator on a daily basis, and that is the fact when you have a multinational corporation that sees the potential for a profitable investment, when you have two corporations entering into a contract with one another, where they think that each side is going to benefit from it, the last thing that they think about is what’s going to happen if this goes sour.
And very few people mount the altar for matrimony thinking, what am I going to do if it doesn’t work out? And that causes me to be skeptical about the extent to which investors truly rely on these various mechanisms for handling the divorce. They prefer to focus on the prospects for success.
MR. RASHKOW: Edric, did you want to add anything to that?
MR. SELOUS: Only that I just also anecdotally just came out of a conference on China/EU relations, where there was a major section in that conference which was talking about structured systems within the Chinese internal regulatory system that was providing much greater confidence for foreign direct investors.
And that included new business laws that provided for dispute resolution outside of bilateral treaty arrangements. And the general consensus coming out of the Chinese presenters, that this fostered a much greater level of FDI at that time.
MR. RASHKOW: We have a opportunity for one or two questions. Yes sir, you had your hand raised.
MALE VOICE 4: – – China – – as – – view of arbitrations under multinational agreements. They – – . Has anyone had any experience with how that works out in the end? It came out most recently – – that they have – – until we get to that stage, you can’t do any discovery – – even if you have – – .
MR. FRIEDMAN: Yes. I’ve not had any experience with it.
MR. RASHKOW: Yes. Nor have I. Anybody in the audience want to respond to that? Okay. One other question in the back. This will be our last question.
MALE VOICE 5: Yes, this is a follow-up question for Aaron about arbitration and the private investment arrangement. How common has it been from your experience in Kenya for the foreign investor who might be pulled into a joint venture having a contract involving a local business develop – – of some sort, how common will it be for the people to then agree upon a dispute resolution through arbitration in the UK or someplace outside?
MR. AMBIA: Just to answer your question, and I think what Larry says sort of bolsters what I would also say, that to begin with, a lot of investors who look to developing countries look first and foremost from a rule of law perspective at the local court system before they consider–in making their investment, and even that sort of precedes the importance of international agreements. Now on to your question.
The thing is that where they perceive the rule of law as being substandard or not up to their expectation, more often than not they will opt for arbitration, for the simple reason that it’s faster and you’re able to control your schedule and even perhaps costs. And also, you’re able to get remedy or redress.
And this is opposed to where it’s efficient and they are likely to opt more for the official court system, that is, the judicial system, but more often than not, they opted for the arbitration and private dispute settlement.
MALE VOICE 5: – – companies that bothered with that? – – assistance, or – – pretty much expected?
MR. AMBIA: That’s pretty much expected. That’s pretty much accepted, even for the local companies. I would compare it to the situation here in America, whereby a substantial number of cases actually get settled out of court, even though they may be – – yes, for the same reasons, it’s faster and it’s more manageable.
MR. RASHKOW: Well, thank you. I’d like to thank the panel for an interesting presentation, and thank all of you for attending. Thank you.
[END DOING BUSINESS IN DEVELOPING COUNTRIES_-_THE IMPORTANCE OF THE RULE OF LAW_02-05-2013.mp3]