Erhvervs-, Vækst- og Eksportudvalget 2013-14
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TO THE DEPARTMENT FOR BUSINESS INNOVATION AND SKILLS:
COSTS AND BENEFITS OF AN EU-USA
INVESTMENT PROTECTION TREATY
 
 
Version: April 2013
On behalf of LSE Enterprise:
 
L
AUGE
N. S
KOVGAARD
P
OULSEN
U
NIVERSITY OF
O
XFORD
J
ONATHAN
B
ONNITCHA
L
ONDON
S
CHOOL OF
E
CONOMICS AND
P
OLITICAL
S
CIENCE
J
ASON
W
EBB
Y
ACKEE
U
NIVERSITY OF
W
ISCONSIN
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I
NTRODUCTION
This report assesses the likely costs and benefits for the United Kingdom (UK) of an
investment protection chapter in a proposed free trade agreement between the European
Union (EU) and the United States (US). Our assessment throughout is based on the approach
articulated in our Analytical Framework report, which provides the basic structure for this
report as well as identifying more specific questions that inform our analysis. We assume that
readers will have read the Analytical Framework report before turning to this document. We
follow the same organizational scheme as in our EU-China report, and where appropriate we
refer in this report to discussions or points in the EU-China report. Unless the context
indicates otherwise we also refer to investment chapters in a larger free trade agreement, when
we use the terms “investment treaties” or “BITs”.
1. UK-US
INVESTMENT RELATIONS
In this section we provide a brief overview of the UK-US investment relationship, focusing on
the amount and composition of investment between the two countries. As in the EU-China
report, two caveats should be mentioned before proceeding. First of all, much of the available
data focuses specifically on foreign direct investment (FDI). This is important, as investment
treaties typically cover both direct
and
portfolio investment, and the costs and benefits of an
investment treaty will flow from its coverage of both kinds of investment. Secondly, FDI
statistics typically do not offer information on the original source of inward FDI or the
ultimate destination of outward FDI. If a foreign investor routes its investment from the
‘home’ state to the ‘host’ state via a subsidiary incorporated in a third state (perhaps for tax
purposes) this investment would show up twice in FDI data, both as an investment of the
home state in the third state and as an investment of the third state in the host state. It would
not, however, show up in FDI data as an investment from the home state in the host state,
making it difficult to determine how much FDI in a host state is indirectly owned by investors
of the home state. This is an important point, since it would seem that a significant amount of
both UK and US investment is routed through third states, such as the Cayman Islands.
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US I
NVESTMENT IN THE
UK
The US is the largest outward investor in the world, accounting for more than 23% of the
world total in 2011. Figure 1, below, shows US FDI outflows from 2001 to 2011. After
stagnating at about 130 billion USD in the aftermath of the bursting of the dot-com bubble,
US investment abroad reached a new high in 2007 of almost 400 billion.
1
American appetite
for outward investment decreased again as a result of the financial crisis after 2007; US
outflows did not bounce back to pre-crisis levels until 2011. Not shown here is outward US
FDI stock, which reached 4.2 trillion USD in 2011.
The vast majority of US overseas investment goes to developed countries, and among these
the UK is the most important destination. In 2011, more than 9% of all US FDI flows –
almost 40 billion - went to the UK and the year before the figure was more than 15%.
Source:
OECD
F
IGURE
1. US
OUTWARD
FDI
FLOWS
, 2001-2011,
BN
. USD 
For the UK, American investment is also by far the most important source of FDI. Figure 2,
below, shows that US FDI stock in the UK account for more than a quarter of a trillion dollars
in 2011, down from 335 billion USD before the crisis. And while the US has gradually
decreased in importance for the UK as a source of FDI over the last decade, one quarter of all
FDI in the UK still comes from the US.
1
The dip in 2005 was due to the Homeland Investment Act, which created a one-year tax incentive for
repatriation and led to considerable withdrawal of retained earnings from US foreign affiliates that year.
2
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Source:
OECD
F
IGURE
2. I
NWARD
FDI
POSITION WITH
US, 2001-2011
The exact distribution of the investment stock is uncertain, as almost one third of all US
investment in the UK has gone through holding companies – most likely for tax reasons – and
the industry in which the holding company’s subsidiary operates is not registered.
2
US
investors in some industries may well make greater use of offshore holding companies than
others – for example, much of outward US manufacturing FDI is channelled through holding
companies.
3
Yet, it seems safe to say that the bulk of US investments in the UK go to the
financial industry. According to ONS data it is one third (Table 1). Information and
communication investments are also considerable (15%) and so is investment across the
manufacting sector. The key point for our purposes, however, is to highlight the sheer depth
and breadth of US investments in the UK. All top 100 of Fortune 500 firms have operations in
the UK,
4
and American investors own or control assets in practically all industries in the UK
ranging from billion pound investments in mining and quarrying to high-tech financial and
other services.
US Department of Commerce’s Bureau of Economic Analysis, Balance of Payments and Direct Investment
Statistics. Available at: www.bea.gov/international.
3
2
Whichard 2008, 27-28.
4
US Department of State,
Investment Climate Statement 2013 – United Kingdom.
Available at: www.state.gov.
(The “Fortune 500” is a list of the largest US corporations, published by Fortune Magazine.)
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Billions GBP
..
Agriculture, forest & fishing
5.5
Mining & quarrying
19.5
Food products, beverages & tobacco products
1.0
Textiles & wood activities
5.3
Petroleum, chemicals, pharmaceuticals, rubber, plastic products
5.8
Metal and machinery products
0.1
Computer, electronic & optical products
8.5
Transport equipment
3.3
Other manufacturing
..
Electricity, gas, water & waste
0.1
Construction
10.6
Retails & wholesale trade, repair of motor vehicles & motor cycles
1.8
Transportation & storage
30.0
Information and communication
68.1
Financial services
3.8
Professional, scientific & technical services
3.8
Administrative and support service activities
7.2
Other services
Notes:
Percentages do not sum to 100 due to missing data.
Source:
ONS
% of total
..
3%
10%
0%
3%
3%
0%
4%
2%
..
0%
5%
1%
15%
33%
2%
2%
4%
T
ABLE
1. US FDI
POSITION IN
UK
BY INDUSTRY
, ONS
DATA
, 2011
UK I
NVESTMENTS IN THE
US
With over 300 billion USD invested, UK investors are the largest foreign direct investors in
the US. The US is also the most important destination of UK overseas investment, accounting
for 18% of all UK outward FDI stock (Figure 3). Before the crisis, almost 1 in 4 pounds
leaving the UK as direct investment went to the US, and after bottoming out in 2010
investments to the US have been growing in importance once again - both in absolute values
as well as shares of total outward FDI stock from the UK.
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Source:
OECD
F
IGURE
3. O
UTWARD
FDI
POSITION WITH
US, 2001-2011
As with US investments in the UK, the bulk of British investment in the US is in financial
services – 30% according to ONS data (table 2). Manufacturing is important as well. With
more than 25 billion GBP investments in chemicals manufacturing, this industry sector takes
up 12% of the UK investment stock in the US. Mining and quarrying accounts for 8%. The
key point again is that UK investors are active in practically all areas of the US economy.
British investors dominate foreign investment in several sectors ranging from petroleum,
where BP together with Royal Dutch Shell account for the bulk of foreign investments in the
US, to more than 60 billion GBP British investments in financial services and more than 40
billion GBP in manufacturing.
Billion GBP
..
17,5
5,9
0,2
25,2
3,5
..
..
15,3
..
0,4
2,7
3,8
9,5
63,7
3,3
2,7
9,5
% of total
..
8%
3%
0%
12%
2%
..
..
7%
..
0%
1%
2%
5%
30%
2%
1%
5%
Agriculture, forest & fishing
Mining & quarrying
Food products, beverages & tobacco products
Textiles & wood activities
Petroleum, chemicals, pharmaceuticals, rubber, plastic products
Metal and machinery products
Computer, electronic & optical products
Transport equipment
Other manufacturing
Electricity, gas, water & waste
Construction
Retails & wholesale trade, repair of motor vehicles & motor cycles
Transportation & storage
Information and communication
Financial services
Professional, scientific & technical services
Administrative and support service activities
Other services
Notes:
Percentages do not sum to 100 due to missing data.
Source:
ONS
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T
ABLE
2. UK FDI
POSITION IN
US
BY INDUSTRY
, ONS
DATA
, 2011
2. T
REATY
P
ROVISIONS
: T
HE
L
IKELY
C
ONTENT OF AN
EU-US
I
NVESTMENT
T
REATY
Since the beginning of its BIT program in the early 1980s, the US has negotiated its
investment treaties on the basis of a detailed model text. Investment chapters in US FTAs
generally follow the same model. Historically, the US has not been willing to deviate
considerably from its model treaty.
5
This means that successful investment treaty negotiations
with the US have typically resulted in agreements almost exactly mirroring the US template.
One notable exception is the investment chapter of the US-Australia FTA, which generally
follows the US model BIT save that it does not provide consent to investor-state dispute
settlement.
The US released its most recent model BIT in 2012, which is the intended basis for all current
and future US BIT negotiations, including the ongoing US-China BIT negotiations.
6
Given
the US negotiating position in the past, it is very likely that Washington will insist that its
2012 model text provide the starting point for negotiations over an EU-US investment treaty.
We also think it likely that the EU would accept the 2012 US model, or something close to it,
as a starting point for negotiations. This assessment is based on our understanding that the
proposed investment chapter in the EU-Canada Comprehensive Economic and Trade
Agreement (CETA) reflects a US-style (or “NAFTA”) approach to investment protection. We
therefore assume for the purposes of this Report that the text of an EU-US investment treaty
would follow the CETA/2012 US Model BIT approach.
The US model BIT is considerably more detailed and more comprehensive than the existing
BITs typical of EU Member States. Unlike EU Member State BITs, US BITs mandate
national treatment (NT) and MFN treatment at both the pre-establishment and post-
establishment phases. With the exception of Canadian BITs, the BITs of most other countries,
5
Vandevelde 2009, 108.
The 2012 US Model BIT can be found at www.state.gov/documents/organization/188371.pdf.
6
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including the UK, do not address pre-establishment rights. The US model can thus be seen as
requiring the liberalization of inward FDI policy in addition to investment protection. The US
model BIT also includes typical post-establishment provisions, such as guarantees of the
international “minimum standard of treatment” (art. 5), full compensation for expropriation
(art. 6), and the right to free transfer of capital (art. 7). Finally, the US model contains
comprehensive investor-state dispute settlement (ISDS) (Sec. B), which unlike the simple
ISDS provisions in many European BITs specifies required ISDS procedures in significant
detail, including mandatory “transparency” of arbitral proceedings (art. 29).
The comprehensive nature of the US model is evident in other provisions that go beyond the
traditional core of favourable standards of treatment backed up by access to ISDS. For
example, the US model bans many types of “performance requirements”, beyond what is
already prohibited under the WTO TRIMs agreement (art. 8). It also encourages the
implementation a US-style “notice and comment” system for the development and
promulgation of investment-related administrative regulations (art. 11). And it contains
provisions concerning the host state’s right to implement treaty-consistent measures to protect
the environment (art. 12) and the desirability of not weakening domestic labour laws in order
to attract investment (art. 13). These latter two articles are largely hortatory, however. The US
model is also notable for its inclusion of various explanatory footnotes and annexes that
attempt to clarify the meaning of otherwise vague or ambiguous treaty text. For example, the
“minimum standard of treatment” is defined as equivalent to the “customary international law
minimum standard of treatment of aliens” (Annex A).
Finally, the US model contains a number of exceptions designed to enhance the host state’s
policy space. For example, Article 18 provides a self-judging “essential security” exception
that allows the host state to apply otherwise treaty-inconsistent measures “that it considers
necessary for the fulfilment of its obligations with respect to the maintenance or restoration of
international peace and security, or the protection of its own essential security interests.” The
self-judging nature of the essential security exception (“that it considers necessary”) means
that the host state’s invocation and application of the exception will be difficult or perhaps
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impossible for an investor to challenge in arbitration.
7
Article 20 of the US model provides
another exception, for prudential measures designed to ensure the “integrity and stability of
the financial system.” Crucially, the investor’s right to challenge state decisions taken under
this exception is subject to numerous important limitations drafted into the article’s text.
Moreover, the US model limits the ability of investors to challenge “taxation measures” as
treaty-inconsistent (art. 21).
As mentioned, we assume that an EU-US investment protection chapter will contain many of
the provisions discussed above. From the perspective of the UK’s existing BITs, an EU-US
investment chapter is thus likely to contain the familiar core of UK treaties (NT, MFN,
minimum standard of treatment, expropriation, free-transfer of capital). It should also be clear
that an EU-US investment chapter is likely to contain provisions that are relatively foreign to
UK BIT practice. Those new provisions may be relevant to a cost-benefit analysis. For
example, the various exceptions noted above (essential security, prudential financial
regulation, taxation) may provide the host state with additional policy space beyond what
would be available under a traditional UK BIT. Another example is that the transparency
provisions relating to ISDS may provide the host state with additional policy costs in terms of
increasing the chances for political controversy resulting from sensitive claims.
A key question for the cost-benefit assessment, of course, is whether the chapter will be
backed up by comprehensive ISDS. While the US did agree to remove ISDS from the
investment chapter of its 2004 FTA with Australia—at Australia’s request—we understand
that several stakeholders in the EU and the US desire comprehensive ISDS.
8
For our
purposes, we assume that if negotiations are concluded, the investment protection chapter will
indeed include comprehensive ISDS. Our cost-benefit assessment is conducted on this basis.
A cost-benefit assessment of an EU-US investment treaty that did not contain ISDS would
look very different. Most of the potential benefits of an EU-US investment treaty that we
7
For an overview of these so-called “non-precluded measures” provisions, see Burke-White and von Staden
2008.
The US-Australia FTA, in addition to
not
including ISDS, also
does
include the various exceptions discussed
above: essential security (art. 22.2); taxation (art. 22.3); prudential regulation of financial services (art. 13.10).
8
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identify in this report – for example, its ability to promote investment in the UK by offering
reliable legal protection against certain political risks to US investors, and its ability to
depoliticise investment disputes between the US and the UK – stem from investors’ ability to
enforce their rights under the treaty through ISDS. Similarly, most of the potential costs of an
EU-US investment treaty that we identify in this report – notably, the economic and political
costs associated with the risk of claims under the treaty – stem from investors’ ability to
enforce their rights under the treaty through ISDS. Ultimately, we conclude that an EU-US
investment treaty that
does
contain ISDS is likely to have few or no benefits to the UK, while
having meaningful economic and political costs. Removing ISDS from the treaty would be
unlikely to have an appreciable impact on the (already negligible) benefits of a treaty with
ISDS, while largely removing the costs of the treaty to the UK. While we have not conducted
a full cost-benefit assessment of an EU-US investment treaty
does not
contain ISDS, such a
treaty would likely be a less costly policy option from the perspective of the UK.
A note on pre-establishment national treatment
Pre-establishment national treatment would obviously be relevant to any cost-benefit analysis
of an investment chapter because of its liberalizing effects on investment flows. However, as
instructed by BIS, we do not attempt to integrate an analysis of pre-establishment national
treatment into our report. It should be noted, also, that the US and UK already provide pre-
establishment national treatment in most economic sectors and for most activities as a matter
of domestic law. The extent to which an EU-US investment treaty would provide
liberalization over and above what the US and UK would anyway offer is uncertain at this
point. Our analysis in this report thus examines only whether the inclusion of post-
establishment investment protection provisions in an EU-US trade and investment agreement
would result in net benefits for the UK. This analysis is relevant to determining whether the
UK should support the inclusion of investment protection provisions in an EU-US agreement,
regardless of whether the treaty includes investment liberalisation commitments.
Possibility to rely on an MFN clause
As we discussed in our China report, most BITs contain MFN clauses, and those clauses can
be used to import more favourable standards of treatment into the investment treaty at issue.
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US BITs routinely include MFN clauses, and it is likely that an EU-US investment chapter
will include one as well. In our China report, we considered whether the MFN clause in the
1986 UK-China BIT would allow UK investors in China to access the more generous
protections of China’s more recent BITs. In the case of an EU-US investment chapter, two
issues arise. The first is whether an MFN clause in the treaty would apply to ISDS; the second
is whether an MFN clause would allow investors to invoke more favourable substantive
provisions from other US or EU Member State treaties that do not contain the various
exceptions and clarifications discussed above.
With respect to the first issue, we note the uncertainty about whether MFN clauses in other
investment treaties apply to “procedural” provisions, like ISDS.
9
We discussed this issue at
some length in our China report. The issue is less relevant here, as we are assessing the costs
and benefits of an EU-US investment treaty on the assumption that it would contain ISDS. (If
the EU-US investment treaty did not contain ISDS, our overall assessment of costs and
benefits would be very different. In these circumstances it would be important to make sure
that the MFN clause was drafted carefully, so as not to override a conscious policy choice to
exclude ISDS from the treaty.) In any case, unlike the MFN clauses of other investment
treaties, the MFN clause of the 2012 Model BIT, which we assume would be incorporated in
an EU-US investment treaty, does not apply to dispute settlement.
10
With respect to the second issue, US BIT practice contains some examples of treaty-based
limitations on the applicability of MFN clauses. For example, some US BITs include sectoral
or subject matter exceptions to MFN treatment in an annex.
11
The US has also sometimes
excluded from its MFN clause treaty provisions in
earlier
BITs ensuring that the MFN clause
only applies to more favourable treatment provided in
later
BITs.
12
As Vandevelde points
9
For a detailed treatment, see Vandevelde 2010, 339-373.
Article 4, the MFN clause of the 2012 US Model BIT, applies only to the ‘establishment, acquisition,
expansion, management, conduct, operation, and sale or other disposition of investments’. This list does not
include dispute settlement. This clause differs from the MFN clauses of other treaties that apply to ‘all matters’,
or to the ‘treatment’ of the investment in general.
11
10
Vandevelde 2010, 348 (citing the US-Egypt BIT).
Vandevelde 2010, 351.
12
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out, this kind of exclusion allows the drafters of a later treaty to conclude a “weaker” treaty
that is not then undermined by the free application of MFN principles as to earlier, “stronger”
treaties.
13
Our analysis in this report is based on the assumption that the MFN provision of an
EU-US investment treaty would be drafted to exclude the application of MFN to early
treaties. (The UK government should still be mindful of the fact that future EU investment
treaties would expand the protection available to US investors in the UK, if they grant more
generous rights to foreign investors than the EU-US treaty.)
The situation would be different if an MFN clause in the EU-US investment treaty were not
drafted to exclude more favourable rights conferred on the investors of third states by earlier
BITs. In these circumstances, UK investors in the US could invoke the more generous
substantive rights contained in older US BITs. US investors in the UK could also invoke the
more generous rights contained in any other EU investment treaties. Moreover, as we
understand that the EU Member States would be parties to an EU-US investment treaty, an
MFN clause would allow US investors in the UK to invoke rights granted to investors of third
states in earlier UK BITs. These factors would significantly alter the costs and benefits of an
EU-US treaty, as assessed in this report. In particular, a broadly drafted MFN clause would
significantly increase the political and economic costs to the UK of an EU-US investment
treaty, by allowing US investors in the UK to invoke the more generous and unqualified
substantive rights found in older UK BITs.
Possibilities to rely on other investment treaties via corporate structuring
As discussed in our UK-China report, if investors of a home state seeking to invest in a host
state route their investment via an intermediary incorporated in a third state the investment
may be entitled to the protection of an investment treaty between the host state and the third
state. From the outset, we emphasise that we are not aware of any evidence of US investors in
the UK or UK investors in the US in structuring their investments via third states for the
purpose of accessing the protection of existing investment treaties. This is not surprising,
because, as we explain below, neither US investors in the UK nor UK investors in the US
have expressed significant concerns about the sort of risks against which an investment treaty
13
Vandevelde 2010, 351.
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might protect. Nevertheless, in cases where investors have specific concerns about future
government measures it is conceivable that they could structure the investment with
investment treaty implications in mind. For example, in the dispute between
Philip Morris
Asia v Australia,
the Australian government has argued that the Philip Morris group
structured its investment in Australia so as to bring its trademarks within the coverage of the
Hong Kong-Australia BIT.
14
Insofar as there is a possibility to structure investment between
the US and the UK so as to bring it under the protection of existing investment treaties, this
would have implications for our estimation of both the costs and the benefits of a US-EU
investment protection chapter.
UK investors seeking to structure investments in the US so as to ensure the protection of an
existing US investment treaty face two challenges. The first is that the US has included
“denial of benefits” provisions in a number of its investment treaties and FTA investment
chapters. According to a commentary on the 2012 US Model BIT, the main purpose of denial
of benefits provisions is to provide “safeguards against the problem of treaty shopping
through the creation of ‘sham’ enterprises.”
15
For example, NAFTA Article 1113(2) allows
the United States (and the other Parties to NAFTA) to:
deny the benefits [of NAFTA’s investment chapter] to an investor of another
Party that is an enterprise of such Party and to investments of such investors if
investors of a non-Party own or control the enterprise and the enterprise has no
substantial business activities in the territory of the Party under whose law it is
constituted or organized.
The term “substantial business activities” is not further defined. Equivalent denial of benefits
provisions are included in the 2012 and 2004 US Model BITs (art. 17 in both cases), and in
other non-NAFTA free trade agreements, including the United States-Central America-
Dominican Republic FTA (CAFTA art. 10.12).
16
14
Philip Morris Asia v Australia,
Australia’s Response to the Notice of Arbitration, 21 December 2011 [4]-[6].
Caplan and Sharpe 2013, 812.
15
CAFTA’s denial of benefits provision was, in fact, recently successfully invoked by El Salvador to defeat
jurisdiction in a claim filed by a US-based holding company that, in the Tribunal’s view, was only a “passive
actor” in the US.
Pac Rim Cayman LLC v Republic of El Salvador
(ICSID Case No. ARB/09/12) (Decision on
Jurisdiction).
16
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A second difficulty for UK investors seeking to structure investments in the US so as to
access the protection of an existing US investment treaty is that the US lacks investment
treaties with states such as the Netherlands, Cayman Island and the Virgin Islands that are
likely to be attractive for tax reasons. This is an important consideration as tax planning plays
a far greater role in corporate structuring than concerns related to investment treaties.
Similarly, while a US investor could invest in the UK via an intermediary incorporated in a
country with which the US has an investment treaty, the UK lacks investment treaties with the
states that are likely to be attractive to US investors for tax purposes.
In summary, we assume that an EU-US investment treaty will provide enforceable treaty
protections to British and American investors, which they currently are unlikely to benefit
from via corporate restructuring. Unlike an EU-China treaty, where existing BITs
occasionally provide opportunities for obtaining similar protections, an agreement between
the EU and the US would significantly change the international legal protections granted to
British investors operating in the US and American investors operating in Britain. This will
likely entail both costs and benefits to which we now turn.
3. E
CONOMIC BENEFITS OF AN
EU-US
INVESTMENT TREATY
As described in our Analytic Framework report, an EU-US investment treaty may provide
economic benefits to the UK in two main ways. First, the treaty might encourage US investors
to make investments in the UK. Second, the treaty might benefit the UK economically by
protecting UK investments in the US.
P
ROMOTION OF
US I
NVESTMENT IN THE
UK
As suggested in Box 1 of Analytic Framework report, the principal question here is whether
American investors looking to invest in the UK are likely to factor in the existence of an EU-
US investment protection treaty when deciding whether to invest in the UK. We find this
unlikely.
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First of all, the US government assesses the UK as a very safe place to invest, and advertises
it as such to potential American investors. The following sections of the 2013 Investment
Climate Statement by the US Department of State are worth quoting at length:
17
Market entry:
Market entry for U.S. firms is greatly facilitated by a common language, legal
heritage, and similar business institutions and practices. Long-term political, economic, and
regulatory stability, coupled with relatively low rates of taxation and inflation make the UK
particularly attractive to foreign investors. … U.S. companies have found that establishing a
base in the UK is an effective means of accessing the European Single Market, and the abolition
of most intra-European trade barriers enables UK-based firms to operate with relative freedom
throughout the EU.
On discrimination:
With a few exceptions, the UK does not discriminate between nationals and
foreign individuals in the formation and operation of private companies. … Once established in
the UK, foreign-owned companies are treated no differently from UK firms. … Local and
foreign-owned companies are taxed alike. Inward investors may have access to certain EU and
UK regional grants and incentives that are designed to attract industry to areas of high
unemployment, but no tax concessions are granted. … In all observable circumstances, foreign
investors, employers, and market participants have been treated equally and benefit from
government initiatives equally. There are no signs of increased protectionism against foreign
investment, and none are expected. Recently, a Parliamentary committee opened an
investigation into tax avoidance by multinational companies, including several major U.S. firms.
However, foreign and UK firms remain subject to the same tax laws, and several UK firm have
also been criticized for tax avoidance.
On repatriation:
The British pound sterling is a free-floating currency with no restrictions on
its transfer or conversion. There are no exchange controls restricting the transfer of funds
associated with an investment into or out of the UK.
On expropriation:
In the event of nationalization, the British government follows customary
international law, providing prompt, adequate, and effective compensation.
On UK courts:
International disputes are resolved through litigation in the UK Courts or by
arbitration, mediation, or some other alternative dispute resolution (ADR) method. Over 10,000
disputes a year take place in London, many with an international dimension, reflecting its strong
position as an international center for legal services.
17
US Department of State,
Investment Climate Statement 2013 – United Kingdom.
Available at: www.state.gov.
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Further, apart from the increase in tax levies on North Sea oil and gas production in April
2011, which is criticized for not being pre-announced or consulted, the statement generally
highlights the transparency and predictability of the UK regulatory system. All in all, the
types of risks an investment protection chapter would cover are not considered present in the
UK economy.
Secondly, there is no convincing evidence that
past
US treaties with investment protection
clauses have had a tangible impact on US outward investment – even in far more risky
jurisdictions than the UK. When American negotiators have met with developing countries in
the past, they have always reminded them that despite the wide range of the US BIT model,
concluding a BIT with the US would not necessarily result in an increase in US investment
flows.
18
And indeed, there is evidence supporting the view that US BITs do not reliably
promote US outbound FDI. The most comprehensive study came out in 2012, showing that
few American BITs or FTAs with investment protection chapters have had an impact on
American investment patterns (Table 3). For those treaties that have had a measurable impact,
it has been only marginal. Crucially, not a single investment treaty with a developed country –
including Canada, Australia, Israel, and Singapore – has had an impact on US investment
outflows.
This is important, as investment protection treaties have arguably been more likely to be
considered by US firms compared to European firms.
19
Apart from their legally binding
liberalization provisions, the inclusive and open debates in Washington on investment
protection treaties following the very public investment claims under NAFTA (see below) has
led to a greater awareness of the treaties among US multinationals. This contrasts with
Europe, where BITs have hardly ever been politicized until recently. Yet, irrespective of the
greater awareness of investment treaties in the US, they do not appear to have played a
considerable role in promoting American investment abroad.
18
Vandevelde 2009.
Poulsen 2010.
19
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Sustained positive effect on US FDI
(annual increase in net US inflows)
No sustained effect on US
FDI
Insufficient data
Albania, Argentina,
Azerbaijan, Bahrain, Bolivia,
Bangladesh (USD 28 million)
Bulgaria, Cameroon, Rep. of
Armenia, Czech
Congo, DR Congo, Croatia,
Honduras (USD 83 million)
Republic, Jordan,
Ecuador, Egypt, Estonia,
BITs
Kazakhstan, Kyrgyz
Georgia, Grenada, Jamaica,
Trinidad & Tobago
Republic, Lithuania,
Latvia, Mongolia, Morocco,
(USD 254 million)
Moldova, Serbia,
Mozambique, Panama,
Slovakia, and Ukraine
Poland, Romania, Senegal,
Turkey (USD 155 million)
Sri Lanka, Tunisia, and
Uruguay
Australia, Bahrain, Canada,
Chile, El Salvador,
PTIAs
Morocco (USD 72 million)
Guatemala, Honduras, Israel, Jordan
Mexico, Morocco, Nicaragua,
Singapore
Notes:
Analyses regressed each country’s net FDI inflows from the US on a one-year lag of net FDI inflows, a
one-period pulse for the first full year after the agreement entered into effect and a dummy variable taking the
value of one in each year the agreement has been in effect. Further details explained in source.
Source:
Adapted from Peinhardt and Allee 2012.
T
ABLE
3. E
STIMATION OF INVESTMENT EFFECTS OF
US BIT
S AND
FTA
S
,
P
EINHARDT AND
A
LLEE
2012.
It is important to note, as indeed we have done in earlier reports, that econometric impact
studies of BITs have serious limitations. Investigating American agreements only, however,
allows the authors to use more complete investment data than panel-type studies, as American
FDI flows are more readily available. Also, to account for the endogeneity of the relationship
between FDI and investment treaties, the authors analyse the impact of each investment treaty
in isolation with one or more lagged dependent variables. This further prevents questionable
assumptions of homogeneity of effects across different countries, as is otherwise standard in
panel data studies.
Even more significant is the fact that these ‘negative’ findings are supported by feedback
from American investors themselves. In 2010, a survey of in-house legal counsel in the 100
largest American multinationals showed that not only did many find BITs less effective to
protect against expropriation and adverse regulatory change than commonly assumed, hardly
any saw the treaties to be critical to their companies’ investment decisions (Figure 4). This
survey concerned the US BIT program, which consists almost exclusively treaties with
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developing and transition economies. In our view, investment treaties with developed
countries would be regarded as even less relevant by in house legal counsel of the same firms.
Notes:
Histogram reports responses from in-house legal counsel in major American multinationals to: (i) To
your knowledge, how regularly does your company actively consider investing in foreign (non-U.S.) operations,
businesses, joint ventures, or other projects; (ii) How familiar are lawyers in your office with the basic provisions
of BITs; (ii) how family are non-lawyer senior executives in your corporation with the basic provisions of BITs?;
(iv) In your view, how effective are international treaties like BITs at protecting foreign investments from
expropriation by a foreign government?; (v) In your view, how effective are international treaties like BITs at
protecting foreign investments from adverse regulatory change in the foreign country?; (vi) How important is the
presence or absence of a BIT to your company’s typical decision to invest in a foreign country?
For the first question, 1 indicates ‘Never or Rarely’ and 5 indicates ‘Frequently’. For the next two questions, 1
indicates ‘Not at all familiar’ and 5 indicates ‘Very familiar.’ For questions four and five, 1 indicates ‘Not at all
Effective’ and 5 indicates ‘Very Effective’. For the last question, 1 indicates ‘Not at all important’ and 5
indicates ‘Very Important’.
Source:
Yackee 2010.
F
IGURE
4. R
ESPONSE FROM GENERAL COUNSEL WITHIN
A
MERICAN MULTINATIONAL
CORPORATIONS ABOUT AWARENESS AND IMPORTANCE OF
BIT
S
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Overall, we find it unlikely that an EU-US investment protection agreement would have a
tangible impact on the amount of US investment flowing to the UK. The UK is already
considered a safe investment destination by American investors and there is no convincing
evidence to indicate that an EU-US investment protection agreement would have any bearing
on whether American multinationals decide to invest in the UK or elsewhere. While
liberalisation provisions could perhaps have such an effect, this would not be contingent on
an EU-US treaty also providing post-establishment protection to US investors in the UK.
P
ROTECTING
UK I
NVESTMENTS IN THE
US
An EU-US investment treaty might provide economic benefits to the UK if it more adequately
protects UK investors in the US from treaty-relevant mistreatment compared to the level of
protection that UK investors currently enjoy (Box 2 in our Analytic Framework report). The
question for the UK analyst, then, is whether an EU-US investment protection treaty could
mitigate problems experienced by investors in the US. We find this unlikely as well.
To our knowledge, there are very few aspects of the US investment climate that concern
British investors. UK investors in the US have no restrictions on repatriation of profits,
dividends, interest, or royalties. And with respect to discrimination, “buy American”
provisions in the 2009 American Recovery and Reinvestment Act raised concerns about
discrimination against foreign investors, for instance, but foreign firms commonly receive
national treatment in the US with respect to local, state, and federal government fiscal or
financial incentives.
20
More generally, there are hardly any discriminatory measures against
foreign investors after establishment. Exceptions from national treatment are clearly set out in
the OECD’s ‘National Treatment Instrument’ and both local, state, and federal level
deviations from treatment proscribed by investment treaties are set out in the non-conforming
measures annexes of recent US BITs and FTAs.
21
20
See, e.g., the self-reported United States Report on its investment regime to APEC, in APEC 2011.
Available at: www.ustr.gov.
21
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With respect to discrimination when it comes to M&As or takeovers, the administration by
the Committee on Foreign Investment in the United States (CFIUS) has become increasingly
politicized in recent years when reviewing security implications of such transactions. CFIUS
decisions are unlikely to be challengeable in investment arbitration, however, given the likely
national security exception in an EU-US investment chapter. This means that even if UK
investors are concerned about the politicization of CFIUS – which we do not have evidence to
sustain – an EU-US investment treaty is unlikely to provide them with any other recourse than
is currently available. It is also important to note that while acquisitions by UK investors
account for the largest share of notices to CFIUS (26% in 2011), few of these results in
legally binding mitigation measures.
22
Rather, actual restrictions have primarily been targeted
at sovereign owned or controlled investments, particularly from China.
23
With respect to expropriation, property rights are protected under the US Constitution,
constitutions of individual states, as well as federal, state, and local laws. As in BITs, US
takings jurisprudence addresses both direct and indirect forms of expropriation and provides
for compensation at fair market value at the time of the taking. Enforcement of contracts is
not a problem either. Due to the efficiency of the US judicial system in enforcing contracts,
the US ranked 6
th
on the World Bank’s
Doing Business 2013
report on this indicator.
Finally, US courts are characterised by both high quality as well as a high level of
independence compared to “typical” BIT-partners of the UK. While examples of anti-foreign
bias do exist in US courts - such as the infamous
Loewen
dispute in a Mississippi state court
24
- we are aware of no evidence that US courts have a tendency to discriminate against foreign
investors. One concern about litigating disputes in US courts is costs, and UKTI informs
British investors that commercial lawsuits in US courts are time-consuming and expensive.
25
32 notices by British firms were made in manufacturing; 28 in finance, information, and services; 5 in mining,
utilities and construction; and 3 in wholesale, retail, and transportation. CFIUS 2012.
23
22
See, e.g., Fagan 2010.
Loewen v US,
ICSID Case No Arb (AF)/98/3, Award of 26 June 2003.
UKTI 2013.
24
25
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But this is true also for American investors, and investment treaty arbitration tends to be
equally, if not more, expensive than domestic court proceedings.
All in all, it is doubtful that UK investors will find additional protections from an EU-US
investment protection treaty beyond those currently provided, and enforced, under US law.
That said; while the chances of a successful investment treaty claim against the US may be
small, UK firms could still use the option of investor state arbitration against the US as a
bargaining tool for resolving disputes in their favour. There are several instances of American
investors using NAFTA’s Chapter 11 to reach favourable settlements with Canada, for
instance, and UK firms could similarly benefit from this option. The same is the case for US
investors in the UK.
Crucially, however, whereas all the costs of an investment treaty
arbitration against the UK would be borne by the UK government, part of the benefits
accruing to UK investors from being able to resort to international arbitration against the US
would remain off-shore rather than flowing back to the UK economy (via dividends paid to
UK nationals and/or higher taxes).
4. E
CONOMIC COSTS OF AN
EU-US
INVESTMENT TREATY
T
HE
R
ISK OF
C
LAIMS
A
GAINST THE
UK
BY
US I
NVESTORS
In our Analytical Framework report, we identify the risk of successful investment treaty
claims against the UK as the primary economic cost associated with an investment treaty. In
estimating the scale of this cost, the first step is to assess the size of investment stocks in the
UK, as the likelihood of claims against the UK can be expected to increase roughly in
proportion with the size of the investment stock in the UK covered by the treaty. As discussed
in our section on the US-UK investment relationship, the UK possesses a very large stock of
US-origin investment.
Two further issues relate to the type of US investments in the UK: their size and sectoral
composition. These issues are relevant because, as discussed in our Analytical Framework
report, investment treaty claims involving investors in certain sectors and of certain sizes have
been more common. Given the tremendous quantity of US investment in the UK, there are
undoubtedly a great number of investment projects that are of sufficient size to make the
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economics of an investment treaty claim (i.e. ratio of legal costs to potential award) viable in
theory. With respect to sector, and as noted in our section on the UK-US investment
relationship, US companies have made significant investments across virtually all sectors of
the UK economy.
A different consideration concerns the culture and practice of dispute resolution among US
investors in the UK. Generally, American investors tend to be the most litigious in the world.
UKTI warn British investors operating in the US that,
Americans are, in general, inclined to start litigation or to threaten it – probably more so than the
British. It is not just American lawyers that exhibit this tendency, but also American business
people. Americans often sue or threaten suit as a strategic device to obtain some sort of amicable
settlement (e.g., a money payment, a new contract, an agreement by the other side to abandon its
claim). The great majority of commercial litigation started is never decided by the court or an
arbitration panel. It is settled by the parties after the legal proceeding has begun; sometimes, the
threat of legal action is sufficient to bring about a settlement.
26
This seems relevant also in the context of investment treaty arbitration. A 2008 empirical
analysis of the 83 investment treaty disputes that were known at the time to have resulted in
awards found that 32 of those cases—over 38%—involved an investor from the United
States.
27
The second-most-frequent nationalities were Canada and Italy, with just six cases
each. Absent a theoretical model for predicting baseline expectations for investor participation
in investment treaty arbitration, it is difficult to make any definitive conclusions from these
figures. For example, the US is a major source of outward FDI, and for that reason it may not
be entirely unexpected that many investment treaty claims would involve US investors. On
the other hand, the high proportion of claims by US investors may be seen as striking given
the relatively low number of US investment treaties in force (approximately 40, plus
investment chapters in US FTAs, such as NAFTA). Unfortunately, Franck’s data do not
control for such things as the amount of FDI from the home country, so it is impossible to say
whether the level of US investor claims is objectively “high”. Franck’s data also shows that
investors won damages in 38.5% of claims that were finally resolved in an award.
28
Franck’s
26
UKTI 2013, 32.
Franck 2008, 28.
Franck 2008, 49 & 58.
27
28
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data do not break out these statistics by the home state of the investor, so we are not able to
say whether US investors win more often, or win more, than other investors.
US investors have brought a significant number of claims against Canada under NAFTA’s
investment chapter, Chapter 11. Canada’s experience is relevant as Canada is a developed
country with a strong rule-of-law tradition like the UK. If anything, we expect that the UK
would be more prone to US claims than Canada, as Canada accounts for less than 8% of US
outward FDI stock, whereas the UK accounts for more than 13%.
29
As of the date of writing
Canada has been the target of 34 NAFTA investment-chapter claims, all but one brought by
US investors.
30
Table 3 shows all known Chapter 11 notices of intent filed by US investors
against Canada. The Table lists the claimant’s name, the minimum amount of damages sought
(as indicated in the notice of intent), the year the notice of intent was filed, a short description
of the dispute, and the dispute’s outcome.
Minimum
Damages
Sought
USD 201
million
USD 30
million
USD 10
million
NA
CDN 30
million
USD 100
million
100 million
USD 32
million
Year
Notice
Intent
1997
Claimant(s)
Dispute Description
Import ban on
gasoline additive
Softwood lumber
Export ban for PCB
waste
Denial of license for
water export
Softwood lumber
Anti-competitive
practices of Canadian
postal service
Regulation of crop
pesticide
Abuse of postal
service procurement
process
Outcome
Settled; investor paid
approx. CDN 20
million
Partial award for
investor, USD 408
thousand
Award for investor,
CDN 6 million
Inactive
Withdrawn
Claim rejected on
merits
Claim rejected on
merits
Withdrawn
Ethyl Corp.
Pope & Talbot Inc.
S.D. Meyers Inc.
Sun Belt Water, Inc.
Ketcham Investments,
Inc. and Tysa
Investments
United Postal Service of
America, Inc.
Chemtura Corp.
Trammel Crow Co.
1998
1998
1998
2000
2000
2001
2001
Source: OECD FDI statistics for 2011 with US as reporting country (unlike figures 2 and 3 where UK was
reporting country).
www.naftaclaims.com/disputes_canada.htm. By “claims” we mean that a notice of intent to file a Chapter 11
claim was filed by the investor.
30
29
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Claimant(s)
Albert Connolly
Contractual Obligation
Productions, LLC et al.
Peter Nikola Pesic
GL Farms LLC and Carl
Adams
Merrill & Ring Forestry
LP
V.G. Gallo
Gottlieb Investors Group
Mobil Investments Inc. &
Murphy Oil Corp.
Centurion Health Corp.
Clayton Bilcon
David Bishop
Dow AgroSciences LLC
Georgia Basin L.P.
Janet Marie Broussard
Shiell et al.
William Jay Greiner and
Malbaie River Outfitters
Inc.
AbitibiBowater Inc.
Christopher and Nancy
Lacich
Detroit International
Bridge Co.
John R. Andre
Mesa Power Group LLC
St. Mary’s VCNA, LLC
Eli Lilly & Co.
Windstream Energy LLC
Lone Pine Resources Inc.
Minimum
Damages
Sought
NA
USD 20
million
NA
78 million
25 million
355 million
USD 6.5
million
50 million
USD 155
million
USD 188
million
USD 1
million
2 million
USD 5
million
USD 21
million
USD 5
million
CDN 300
million
USD 1.2
thousand
USD 1.5
billion
CDN 4
million
CDN 775
million
USD 275
million
CDN 100
million
CDN 475
million
CDN 250
million
Year
Notice
Intent
2004
2005
2005
2006
2006
2006
2007
2007
2008
2008
2008
2008
2008
2008
2008
2009
2009
2010
2010
2011
2011
2012
2012
2012
Dispute Description
Forfeiture of mining
claim site
Denial of television
programming subsidy
NA
Milk export program
Export controls on
logs
Expropriation of
landfill
Change in tax laws
Imposition of
performance
requirements
Restrictions on private
health care
Environmental
assessment of quarry
project
Revocation of license
for wilderness outfitter
Ban on lawn
pesticides
Export controls on
logs
Fraudulent bankruptcy
proceedings
Revocation of license
for wilderness outfitter
Termination of water
and timber rights
Change in tax laws
Regulation of toll
bridge
Emergency caribou
hunting restrictions
Renewable energy
regulation
Denial of license for
quarry
Invalidation of
pharmaceutical patent
Renewable energy
regulation
Revocation of mine
permit
Outcome
Inactive
Inactive
Withdrawn
Inactive
Claim rejected on
merits
Claim dismissed for
lack of jurisdiction
Inactive
Award in investor’s
favour; compensation
TBD
Claim dismissed by
tribunal
Pending
Inactive
Settled with no
compensation paid
Inactive
Inactive
Withdrawn
Settled; investor paid
CDN 130 million
Withdrawn
Pending
Inactive
Pending
Pending
Pending
Pending
Pending
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Claimant(s)
Mercer International Inc.
Minimum
Damages
Sought
CDN 250
million
Year
Notice
Intent
2012
Dispute Description
Electricity generation
Outcome
Pending
N
OTES
: “Minimum damages sought” are taken from Notices of Intent and do not include pro forma requests for
costs, interest and the like; actual amounts claimed in arbitration may be higher. Where “US” or “CDN” is not
listed, the Notice of Intent is ambiguous as to whether the investor is requesting monetary relief expressed in
United States or Canadian dollars.
S
OURCES
: Department of Foreign Affairs and International Trade Canada web
www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/NAFTA.aspx;
NAFTAClaims.com.
site,
T
ABLE
3. C
LAIMS AGAINST
C
ANADA BY
US
INVESTORS PURSUANT TO
NAFTA
CHAPTER
11
Table 3 illustrates the breadth of Canadian government actions that US investors have
challenged: electricity regulation; changes in tax laws; the revocation or denial of various
licenses; export bans on hazardous materials; health care regulations; patent decisions; and
more. The table also shows that a significant proportion of notices of intent are eventually
withdrawn or become inactive (14/33). Unfortunately, the Canadian government does not
indicate the reason for withdrawal or inactivity. We think it likely that many withdrawn or
inactive notices of intent are withdrawn or become inactive because the investor realizes that
the claim has little chance of success, or that proceeding with arbitration will be too costly.
However, we have no hard evidence relating to this hypothesis. Eleven notices of intent have
proceeded to arbitration and led to an award or a formal settlement. Of those eleven, only five
have resulted in payments to the investor. In total, it appears that Canada has paid investors
approximately CDN 156 million, with the bulk of that total consisting of a CDN 130 million
settlement in
AbitibiBowater.
(Damages are still pending in the recent award in
Mobil
Investments).
Eight disputes are on-going. US investors appear to have become more active in
filing Chapter 11 notices of intent in recent years, with eight notices filed since 2010. Those
eight notices together claim a minimum of over USD 3 billion in damages, including a claim
for USD 1.5 billion in the
Detroit International Bridge Co.
case. However, it is probably safe
to say that those damage claims are exaggerated and intended by the investors to increase
pressure on Canada to settle in the investors’ favour.
We think that it is fair to say that Canada has managed to compile a relatively impressive
record of success in defending itself against investor-state claims, at least in the sense of
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avoiding frequent and/or large adverse awards.
31
This contrasts with the experiences of
certain developing countries, such as Argentina and Ecuador, which have seen very large
adverse awards as a result of investor-state arbitration initiated by US investors.
32
Legal costs
We expect that the UK would be able to develop a defence capacity of a quality roughly
comparable to that of the US and Canada, especially given that the UK government is
unlikely to engage in the kinds of mistreatment of US investors that are likely to be viewed as
clear or egregious violations of international law. However, it must be recalled that the UK
will necessarily incur costs (lawyer’s fees; tribunal fees) in defending itself against investor
lawsuits
even if the UK “wins”.
A recent OECD scoping paper on ISDS reported the results
of a survey showing that total “legal and arbitration costs for the parties in recent ISDS cases
have averaged over USD 8 million [or, USD 4 million per party] with costs exceeding USD
30 million in some cases.”
33
. These figures are consistent with a briefing by the law firm
Allen & Overy obtained by BIS, which puts average costs at slightly over USD 4 million per
party, with minor variations of tribunal costs as between cases under differing sets of
procedural rules.
34
Additional costs (such as the costs to the government of maintaining an
office dedicated to investment-treaty defence) would add some amount of “overhead” to the
per-dispute averages reported in the OECD report. It should also be noted that ISDS costs can
be significantly higher than the average figure mentioned above. For example, in the recent
Abaclat
decision on jurisdiction, the claimants had spent some USD 27 million on their case
to date, and Argentina had spent about USD 12 million.
35
These costs were solely for a
decision addressing jurisdiction but not the merits. In our own experience, costs for the
respondent states and claimants are roughly equivalent on average, albeit with significant
31
While Canada, as indicated, has lost a small number of investor-state arbitrations, the US has never lost an
investment treaty arbitration. Gallagher and Shrestha 2011, 8.
32
Gallagher and Shrestha 2011, 4 Table 1.
OECD 2012, 18.
Hodgson 2012.
OECD 2012.
33
34
35
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variation between cases. This impression is broadly consistent with a briefing by the law firm
Allen & Overy obtained by BIS, which suggests that average costs for claimants are
fractionally higher than those for respondent states.
36
We lack sufficient data to compare the magnitude of likely ISDS costs to the costs that the
UK would be likely to incur in defending itself in domestic court against domestic law claims
by foreign investors. However, we assume that, all else equal, it would be significantly more
costly for the UK to defend itself against an ISDS claim than an equivalent domestic
court/domestic law claim. BIS should also be aware that international investment law is
not
characterized by reliable a “loser pays” rule as to costs. Even when investors are required to
pay the costs of the tribunal, considerable legal fees can still be borne by the “winning” party.
In
Plama v Bulgaria,
for instance, Bulgaria had to spend more than USD 6 million in legal
fees in a case the Bulgarian government “won”.
37
Thus, the UK should not necessarily expect
to see its costs “shifted” to the losing investor. In many cases, and perhaps most cases, the UK
will be responsible for its own costs even if it wins the case. As the OECD report on costs
notes, “It is widely recognised that outcomes on cost shifting in ISDS cases are highly
uncertain.”
38
On the other hand, some observers suggest that investor-state tribunals have in
recent years become more likely to shift costs to the losing party.
39
Cost shifting to the
investor may be particularly likely where the investor’s claim is found to be patently
frivolous. BIS should carefully consider the specific language on cost shifting, if any,
contained in an EU-US draft investment chapter when conducting its cost-benefit analysis, as
it is possible for the investment chapter to expressly address the cost-shifting issue.
We also understand that BIS is already aware of the draft EU regulation on financial
responsibility for investor-state disputes.
40
The draft regulation would establish the
Between USD 100,000 and USD 350,000 higher on average, depending on whether outlying cases are
excluded from average figures.
37
36
Plama Consortium Limited v. Bulgaria,
ICSID Case No. ARB/03/24, Award, 27 August 2008.
OECD 2012, 21.
See generally Franck 2011 on cost-shifting in investment-treaty arbitration; OECD 2012, 21; Hodgson 2012.
38
39
40
European Commission,
Draft Financial Responsibility Regulation
COM(2012) 335 final, 2012/0163 (COD),
21 June 2012
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responsibility of the UK to pay any costs incurred by the EU in defending the member state
against an investor challenge. We point this out to emphasize that even though the EU may be
the respondent party in an investor-state arbitration under an EU-US investment chapter, the
UK is likely to remain liable for any costs incurred by the EU on the UK’s behalf in the
arbitration.
Risk of adverse awards
If an EU-US investment chapter provided US investors with more generous rights than they
would otherwise have under UK law, the risk of investor lawsuits and adverse arbitral awards
would rise considerably. In general, our view is that an EU-US investment chapter is unlikely
to grant US investors in the UK
significantly
greater rights than they would otherwise have
under UK law. However, as we explain below, an EU-US investment treaty may provide
opportunities or incentives for investors to bring claims that they would not bring under UK
domestic law. The content of international investment law remains contested and uncertain,
and it is possible that an ISDS tribunal formed under an EU-US investment chapter would
grant a US investor significant damages for conduct that would not normally be actionable
under UK domestic law.
We say that an EU-US investment chapter would not grant US investors in the UK
significantly
greater rights than they currently enjoy because most successful investment
treaty claims concern circumstances that would clearly be inconsistent with UK law, such as
the unilateral abrogation of contracts by government authorities, or serious procedural failures
in administrative or judicial processes. While in some cases investment tribunals have
interpreted investment treaty text in ways that go beyond the protections contained in UK law
(for example, on the question of “legitimate expectations” or the granting of regulatory
permits and licenses—see our China report), we believe that an EU-US investment chapter is
likely to contain relatively restrictive formulations of the minimum standard of treatment,
regulatory expropriation, and other standards that have, when drafted without qualification,
been interpreted more expansively. Since the well-known
Methanex
NAFTA Chapter 11
arbitration, in which a Canadian investor unsuccessfully challenged a California
environmental regulation, the US has appeared to be particularly concerned with protecting its
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right to change the legal or regulatory regime in non-discriminatory ways.
41
We see that
sensitivity in the various explanatory footnotes and annexed text in the 2012 US Model BIT
that, for example, limit the fair and equitable treatment standard to the customary international
law standard for the treatment of aliens,
42
or that reaffirm that “Except in rare circumstances,
non-discriminatory regulations that are designed and applied to protect legitimate public
welfare objectives…do not constitute indirect expropriation”
43
, or that clarify that whether a
regulatory grant of permission to engage in an activity is not a covered “investment” if the
grant of authority does not also “create any rights protected under domestic law”.
44
On the other hand, and despite such attempts to narrow and clarify the protections provided
by the US model BIT, there remains significant debate and uncertainty as to the content of
such terms as “fair and equitable treatment”.
45
That lingering uncertainty leaves open the
possibility that an arbitral tribunal might interpret the language of an EU-US investment
chapter expansively, despite the addition to the treaty text of cautionary footnotes and
annexed clarifications. In turn, continued uncertainty as to the content of international
investment law means that investors may have an incentive to bring “long-shot” claims
against the UK, in particular where the investor has colourably suffered large damages. In
some cases, a long-shot claim may result in an arbitral interpretation and application of treaty
text that goes beyond UK domestic law.
For example, the tribunal in the recent case of
Occidental v. Ecuador II
read into the fair and
equitable treatment provision of the US-Ecuador BIT an obligation on the state to treat the
investor “proportionately” when the state exercises a contract-based right to terminate its
commercial relationship with the investor upon the investor’s breach of the contract.
46
While
41
Caplan and Sharpe 2013, 756.
2012 US Model BIT, Annex A.
2012 US Model BIT, Annex B.
2012 US Model BIT, Art. 1 footnote 2.
42
43
44
45
Kläger 2011, 87-88 (discussing the failure of the US Model BIT’s clarifications on the meaning of “fair and
equitable treatment” to actually clarify the meaning of the phrase).
Occidental v Ecuador II,
ICSID Case No ARB/06/11, Award, 5 October 2012 [383].
46
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the principle of proportionality has some operation as a ground of review in the administrative
law of the UK, English
contract
law does not require an innocent party to exercise a right to
terminate a contract proportionately. If one party breaches a contract and if that breach creates
a right to terminate, the innocent party is entitled to exercise that right to terminate at its
discretion.
47
While there are other complexities in
Occidental II
that may bear on how the
case would be resolved if it had been litigated under the English law of contract, we think a
dispute akin to
Occidental II
may well be decided differently if it were litigated under English
law. As such, the case provides a helpful illustration of the point that apparently restrictive
concepts such as the minimum standard of treatment required by customary international law
are sometimes interpreted by arbitral tribunals in ways that can grant foreign investors more
generous rights than would be recognised under UK law.
Despite the potential of expansive interpretations of uncertain treaty text, an EU-US
investment chapter would still probably
by design
confer greater rights on US investors that
they would be entitled to under UK law, at least in certain areas. As we observed in the EU-
China report, the general rule in the UK is that legislation passed by Parliament cannot be
challenged in the courts. This is relevant also when considering political costs, as noted
below, as investment tribunals authorised to override acts of Parliament is politically
sensitive. Moreover, while the actions of the executive can be challenged in UK courts,
pecuniary remedies are only rarely awarded in such cases.
48
In both respects, the position
under an EU-US investment treaty would differ from the position under UK law.
One important additional issue is the question of potential UK liability for actions taken by
the EU itself, or for actions taken by the UK as required by EU law. For example, in a pair of
recent Energy Charter Treaty arbitrations, investors challenged certain changes in Hungary’s
electricity pricing regime that were arguably required under EU law.
49
Under the Draft
Financial Responsibility Regulation mentioned above, the EU, and not the Member State,
would incur direct financial responsibility for the costs of ISDS (adverse awards, litigation
47
Union Eagle Ltd v Golden Achievement Ltd
[1997] AC 514 per Lord Hoffmann
Craig 2012.
48
49
Electrabel S.A. v the Republic of Hungary
(ICSID Case No. Arb/07/19);
AES Summit Generation Limited and
AES-Tisza Erömü Kft v. The Republic of Hungary,
ICSID Case No. ARB/07/22.
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costs) where the investor challenges a Member State action that itself was “required by the
law of the Union,” or where the challenge is to treatment “afforded by the institutions, bodies,
or agencies of the Union.”
50
The Regulation, if implemented, would thus offer the UK some
protection from the direct costs of at least some kinds of legal challenges. However, it might
be said that Member States would still be paying at least some portion of those costs
indirectly—even where the challenged treatment is of the kind for which the EU takes
“financial responsibility”— through their own national contributions to the EU budget.
Overall, our view is that the UK faces meaningful risk that US investors will seek to invoke an
EU-US investment chapter’s ISDS provisions to bring claims against the UK government.
This assessment is primarily due to (i) the large amount of US investment in the UK; (ii) the
fact that US investors appear to have been relatively aggressive in bringing actions against
other states, including Canada, under investment protection instruments that are likely to be
very similar to an EU-US investment chapter; and (iii) the continued uncertainty over the
proper meaning of key concepts in international investment law, such as “fair and equitable
treatment”. In particular, investors can be expected to bring some number of “long-shot”
claims against the UK, some of which the UK may lose. Moreover, so long as the investor has
some chance of success, the mere act of filing an arbitral claim may give the US investor
leverage against the UK government in terms of encouraging the UK government to settle the
case, even if only to avoid litigation costs and any possible damage to the UK’s reputation as
a welcoming environment for foreign investment. This is an important point. For example, in
the well-known Ethyl NAFTA litigation, Canada settled the case by agreeing to pay the US
investor USD 13 million. Thus, while we do not expect the UK to incur many high-value
awards in favor of US investors, this does not mean the UK will not incur considerable
litigation-related costs under an EU-US investment chapter. These include the costs of more
favourable settlements than would otherwise be agreed as well as fees to lawyers and
tribunals. The later are expected to average at approximately USD 4 million per claim per
party, but individual claims could involve much higher legal costs. We view it as virtually
certain that such costs under an EU-US investment chapter will be higher than under the
status quo, as we assume that currently the vast bulk of existing US investment in the UK is
European Commission,
Draft Financial Responsibility Regulation
COM(2012) 335 final, 2012/0163 (COD),
21 June 2012, Art. 3.
50
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not covered by an investment treaty. Under an EU-US investment chapter, in contrast, all US
investment in the UK would be covered.
T
HE
R
ISK OF
I
NVESTMENT
D
IVERSION
Another potential economic impact of an EU investment treaty with the US is on US foreign
investors’ location decisions with the EU. Diversion effects may constitute either a cost or a
benefit for the UK. If an EU-wide investment treaty with the US increases the relative
attractiveness of the UK as a destination for outward US investment as compared to other EU
states, diversion effects would likely benefit the UK. The converse is also true. In assessing
the likelihood of diversion effects it is important to note our analysis in Section 3, above,
which suggests that the presence or absence of an investment treaty is unlikely to play a
significant role in the location decisions of US investors. This observation implies that, even
if an EU-US investment treaty alters the relative strength of investment protections available
to US investors in various states within the EU, this legal change is unlikely to induce
significant diversion effects. This is a crucial point. The observations below about the extent
to which an EU-US investment treaty might divert foreign investment from the UK are
therefore primarily of theoretical interest.
Our analysis here is simplified by the fact that the US has relatively few BITs in place with
EU Member States. The US has BITs with the following members of the EU: Bulgaria
(1992); Czech Republic (1991); Estonia (1994); Latvia (1995); Lithuania (1998); Poland
(1990); Romania (1992); Slovakia (1991). The US also has a BIT with Croatia, an acceding
member of the EU (1996). All of those BITs contain comprehensive dispute settlement and
pre- and post-establishment NT, as well as other provisions common to the US model. An
EU-US investment chapter should, in theory, make the UK relatively more attractive as a
destination for US foreign investment than it already is, at least as to those states. This is
because an EU-US investment chapter will be essentially redundant to the US BITs already in
force for EU members who already have a BIT with the US.
On the other hand, none of the Northern and Western European states that are geographically
proximate and economically similar to the UK—and thus presumably most likely to be
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competing with the UK for US investment—currently have an investment treaty with the US.
Unless those states currently have particular investment-relevant disadvantages that may be
effectively addressed in an EU-US investment chapter, and only if the UK itself does
not
currently have those disadvantages, an EU-US investment chapter may in theory increase the
relative
attractiveness of other Northern and Western European states, and thus divert some
US outbound investment from the UK. However, we do not think there are significant
investment-treaty-relevant differences between the UK and, say, Denmark, Finland, France,
Germany, Norway, or Sweden. For example, the PRS Group’s ICRG Investment Profile index
rates the UK approximately as favourably (or even slightly less favourably) than the six
Northern and Western European states mentioned in the previous sentence. While the PRS
Group index is not a perfect indicator of the kinds of factors that are both relevant to foreign
investors and effectively addressed through investment treaties, the data support our general
sense that the UK’s current success in attracting US foreign investment is not due to
investment-treaty-relevant deficiencies in other Western and Northern European states.
In short, even if an EU-US investment protection chapter was important for establishment
decisions of American investors – which no evidence suggests it would be – we would not
expect an EU-US investment treaty to have much if any diversionary impact on US investment
flows to the UK.
5. P
OLITICAL BENEFITS OF AN
EU-US
INVESTMENT TREATY
D
E
-P
OLITICISING
I
NVESTMENT
D
ISPUTES
In our Analytical Framework report, we identify de-politicisation of investment disputes as a
potential political benefit from ‘strong’ investor state arbitration provisions in investment
treaties. In our China report we emphasised the importance of recognizing the special political
sensitivities of the UK-China relationship. Those concerns are not present here. As the British
embassy in Washington, D.C. notes on its webpage, “The United Kingdom and the United
States have a partnership that is without rival in the international community.”
51
This “special
relationship” means that the risk of investor-state disputes between US investors in the UK,
51
http://ukinusa.fco.gov.uk/en/about-us/working-with-usa/.
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and UK investors from the US, becoming undesirably “politicized” in the absence of ISDS is
probably quite low.
UK as a home state
In principle, an EU-US investment treaty could allow the UK government to avoid being
drawn into investment disputes on behalf of British investors in the US in ways that could
compromise broader foreign policy goals. If the British government has had problems saying
‘no’ to UK investors in the US seeking government assistance to resolve sensitive disputes, a
strong investment treaty could provide an opportunity to refer British investors to
international arbitration. It is only possible to assess the extent to which this would constitute
a benefit with comprehensive information about the susceptibility of the UK government to
pressure by British industry to exercise diplomatic protection in situations that could lead to
foreign policy complications. This is information we do not have, but which BIS could obtain
from consultations with the Foreign and Commonwealth Office.
It may be helpful for BIS to make inquiries regarding the UK government’s experience in
helping to resolve, or in being asked to help resolve, high-profile incidences of conflict
between UK investors and the US government. One example could be BP’s recent
experiences in dealing with the US government in the wake of the Gulf of Mexico oil spill.
Here, the analyst would examine the extent to which the UK government was asked to be
involved, or was in fact involved, in diplomatic attempts to ensure that BP was treated fairly
in the US government’s response to the spill. The analyst would also consider whether any
UK government involvement was helpful or unhelpful in encouraging BP and the US
government to reach a settlement, and whether a right for BP to independently pursue
international arbitration against the US government for unfair treatment might have either
exacerbated or alleviated any risk of political controversy between the US and UK.
However, it is also important to note that an investment chapter may be unlikely to provide
meaningful access to ISDS for the kinds of foreign investment disputes that are both most
likely to arise between the US government and UK investors, and that are likely to raise
political sensitivities. Foreign investment in the US is generally non-controversial, and enjoys
de facto national treatment, pre- and post-establishment, and that treatment in virtually all
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cases will exceed any international minimum standard. However, on occasion a proposed
foreign acquisition of US assets will generate significant political controversy, ostensibly for
national security reasons. The US maintains a limited investment-screening apparatus
(CFIUS), and as mentioned above the CFIUS process has sometimes served as the focal point
of intense political pressure on the US Executive to block the acquisition. The Dubai Ports
World incident, in which a Dubai firm was pressured into abandoning a plan to acquire
several US port operations (through DPW’s acquisition of the UK firm P&O) is an important
example.
52
However, an EU-US investment chapter is almost certain to include a self-judging
national security exception similar to Article 17 of the 2012 Model US BIT. In that case,
decisions by the US government to block acquisitions by UK investors on national security
grounds may be essentially unreviewable in arbitration, leaving diplomatic protection the
investor’s only option to challenge the denial of permission to invest.
UK as a host state
As a host state, the UK could also potentially benefit from treaty-based investor state
arbitration by adjudicating investment disputes with US investors without the involvement of
the US state. Diplomatic pressure on the British government to resolve the dispute in favour
of US investors could be avoided if settlement of the dispute is delegated to a neutral
international arbitration forum.
In our China report, we emphasised that this possibility was especially relevant given the fact
that a great portion of existing and future Chinese investments in the UK involve, or are likely
to involve, state-affiliated entities (e.g. Chinese sovereign wealth funds or state-owned
enterprises). That consideration is not present to the same degree in the case here, as the US
federal government does not maintain an SWF, and US federal government-owned or –
sponsored enterprises are rare.
53
On the other hand, some US states do maintain public
pension funds of quite important size that invest abroad. For example, the California Public
52
See generally Savuant, Sachs and Jongbloed 2013.
Perhaps the most important exception is the US federal government sponsorship of mortgage finance
companies Fannie Mae and Freddie Mac. However, those companies do not invest abroad. Rather, they issue
debt, of which investors in the UK appear to hold a significant amount.
53
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Employees' Retirement System, or CalPERS, has assets of approximately USD 250 billion,
and invests extensively in international debt and equity markets, including the UK. For the
purposes of this Report, however, we assume that US state public investment funds are
unlikely to pose the same sensitivities as their Chinese counterparts.
Also, as we point out in the Analytical Framework report, the extent to which governments
are vulnerable to company pressure to involve themselves in investment disputes partly
depends on the nature of their political system. In the case of the US, the open and democratic
political system can be assumed to provide various pathways for aggrieved US investors in
the UK to attempt to convince politicians to pressure the US Executive to intervene on their
behalf in disputes with the UK. On the other hand, the U.S. Department of State formally
maintains a restrictive policy toward diplomatic espousal of investment claims, requiring, for
instance, full exhaustion of local remedies.
54
And while the US executive has historically
been drawn into investment disputes in numerous developing countries,
55
the high quality of
the US-UK political relationship combined with UK’s favourable investment climate makes
us expect that incidences of US pressure on the UK on behalf of US investors is rare. We
nonetheless recommend that BIS make appropriate inquiries with other UK government
offices to gauge the extent to which the UK government has been subject to investment-
related US diplomatic pressure in the recent past.
To summarize: we do not believe that an EU-US investment chapter will provide significant
political benefits by depoliticizing investment disputes. This evaluation is driven largely by
two main factors. First, the positive investment climates in the US and UK mean that major,
sensitive investor-state disputes are unlikely to arise in the first place. Second, the political
relationship between the US and the UK means that investment disputes that do arise are
unlikely to result in serious diplomatic tensions between the two states, as the US and UK
have a significant and positive history of political and diplomatic cooperation. While we
should stress again that BIS should inquire with relevant government departments, we find it
54
www.state.gov/s/l/c7344.htm.
Maurer 2013.
55
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unlikely that either government would allow their investors to drag them into investment
disputes that could compromise the “special relationship”.
O
THER POLITICAL BENEFITS
Two additional potential political benefits are worth highlighting. First of all, the Commission
has argued that an EU-US agreement will increase EU’s bargaining power in future
negotiations with countries such as India and China. Somewhat analogously to the OECD-
based Multilateral Agreement on Investment (MAI), an investment agreement negotiated
between the largest trading and investment blocks in the world could set a de-facto
global
standard, which other partner countries would be inclined to follow.
56
As we expect an EU-
US agreement to very closely follow the US BIT model, this would essentially mean that the
(hypothetical) global standard would follow American rather than European investment treaty
practise.
This would be a political benefit
unique
to an investment treaty with the US and is therefore
not included in our framework report. We urge caution about the plausibility of this scenario
however. As noted in our China report, Beijing has adopted investment treaties for decades
and the Chinese leadership has developed a somewhat distinct investment treaty practice
tailored to its perception of China’s national interest. At the time of writing, it has proven
impossible for the United States to get China to sign up to its BIT model, and given China’s
leverage in investment treaty negotiations we do not expect that an EU-US agreement is going
to change that stance. The same might be said about India, which is currently in the process of
re-visiting its investment treaty program as a result of a series of high-profile claims.
57
So
while an EU-US agreement may well have influence on EU’s bargaining power with less
significant investment partners – such as in parts of Africa – it is at least questionable whether
it is going to make countries like India and China more, or less, likely to agree to an
investment treaty with the EU.
56
For a similar argument of major powers ‘going it alone’ in the trade regime; see generally Gruber 2000.
‘BIPA talks put on hold,’
The Hindu,
January 21, 2013.
57
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A second political benefit advanced by the Commission is that the EU could use an
investment protection chapter as a ‘bargaining chip’ vis-à-vis the US in order to obtain gains
elsewhere in a comprehensive trade and investment agreement. We caution about this
argument as well, as it is not at all clear how committed Washington is to an investment
protection chapter with the EU. (Indeed, if one compares that USTR’s notification to
Congress of its negotiating agenda
58
with the EU draft negotiating mandate,
59
it would appear
that it is the European Commission, rather than the US, that is more strongly committed to the
inclusion of investment protection within the Transatlantic Partnership.) If the Obama
administration is concerned about the risks such a chapter could entail for the US, for instance
because it could result in considerable claims by European investors, the Commission would
be unable to use it as a bargaining chip in parallel negotiations.
In short, we are not convinced that an EU-US investment protection treaty would have
significant bearing on whether China and India are willing to enter into an investment treaty
with the EU. Nor are we convinced that the US is willing to offer significant ‘side-payments’
in other parts of a trade and investment agreement in return for an investment protection
chapter. It is important to stress, however, that this is impossible to adequately assess without
inside information from Beijing, Delhi, and Washington, so BIS may want to raise this with
the Foreign and Commonwealth Office.
6. P
OLITICAL COSTS OF AN
EU-US
INVESTMENT TREATY
T
HE
P
OLITICAL
C
OST OF
R
EDUCED
P
OLICY
S
PACE
In our Analytical Framework report, we suggest that an EU-US investment treaty would
impose costs on the UK to the extent that it prevents the UK government from regulating in
the public interest. We use the term ‘policy space’ to refer to this potential cost. In assessing
the impact of an EU-US investment treaty on the UK government’s policy space, we do not
58
USTR, letter to John Boehner, 20 March 2013.
European Commission,
Recommendation for a Council Decision authorising opening of negotiations on a
comprehensive trade and investment agreement called the Transatlantic Trade and Investment Partnership,
between the European Union and the United States of America
COM(2013), 136 Final, 12 March 2013.
59
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propose a theory of what sorts of policies would be in the UK ‘public interest’. Rather, we
suggest that it is for the government of the day to make its own assessment of the public
interest. Thus, the impact of an EU-US investment treaty on UK policy space can be
understood as the extent to which the treaty prevents the government of the day from adopting
policies that the government would have preferred to adopt in the absence of the treaty.
Assessing the likely size of this cost raises many of the same issues that were considered in
our assessment of the likely economic cost to the UK of adverse arbitral awards under the
EU-US investment treaty. The size and composition of US investment stocks in the UK is
relevant to the impact of an EU-US investment treaty on UK policy space. Given the sheer
size of stock of US investment in the UK, the likelihood of disputes between US investors and
the UK government is high. The composition of US investment in the UK is also potentially
relevant because investments in particular sectors have proven more likely to result in
investment treaty disputes in the past. In Section 1 of this report we note that there are
substantial stocks of US investment in all sectors of the UK economy, including in extractive
industries and public utilities, both of which have proven particularly prone to investment
treaty claims in the past.
In reconciling our assessment of the political costs associated with lost UK policy space under
an EU-US investment treaty and our assessment of the economic costs associated with
adverse arbitral awards, it is important to acknowledge the risk of double-counting the same
costs. If the UK fully complies with its obligations under an EU-US investment treaty it will
not incur any economic costs as a result of adverse arbitral awards. However, it may refrain
from regulating in ways that it would otherwise regard as desirable. In contrast, if the UK
ignores the risk of claims under an EU-US investment treaty it will not suffer from any
reduction in policy space
in practice.
It would, instead, expose itself to the risk of economic
costs associated with adverse arbitral awards.
As we understand it, the UK government does not currently have a whole-of-government
system in place to ensure compliance with its existing investment treaty obligations, nor are
there plans to implement such a system. This is almost certainly because the UK government
has never been the subject of a successful investment claim, so has never felt the need to
establish such a system. In the event of a dispute with a US investor, there would be processes
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within the UK government to respond to and manage the dispute. Yet, the absence of a system
that screens and reviews the compliance of government policy with the EU-US investment
treaty in advance means the protections of the treaty are unlikely be internalised within the
UK government in a way that discourages or prevents government decision-makers from
pursuing preferred policies prior to specific investment disputes arising. This significantly
decreases the likelihood of an EU-US investment treaty interfering with UK policy space
in
practice.
Yet, there are other ways in which the treaty could affect UK policy space. We have noted the
size of US outward FDI stocks in the UK and the fact that US investors seem particularly
likely to rely on their legal rights as a bargaining tool. If an EU-US investment treaty did enter
into force, we expect that the UK would be regularly faced with US investors opposing new
UK government policies on the grounds of the treaty. This opposition could be expressed
either through lobbying, through submissions to government inquiries or by initiating
arbitration proceedings under the treaty. To the extent that these activities encouraged UK
government decision-makers to modify or abandon preferred measures, it would count as a
political cost of the treaty.
In assessing the ability of US investors to persuade the UK government to modify or abandon
preferred policies two considerations are relevant: the quality of legal advice available to UK
government decision-makers; and the extent to which the EU-US investment treaty grants US
investors greater rights than they would otherwise have under UK law. With respect to the
first point, high quality legal advice is available throughout the UK government. Accordingly,
the UK government should be well placed to manage tactical use of threats of litigation by US
investors, insofar as those threats lack legal foundation.
On the other hand, as we observed in the EU-China report, the availability of good quality
legal advice may make UK government decision-makers
more
likely to amend or withdraw
policies when those policies raise serious risks of non-compliance with an EU-US investment
treaty. A clear example of this phenomenon is the recent announcement by New Zealand
relating to its policy on tobacco plain packaging. While the New Zealand government has
made clear that its preferred policy would be to introduce tobacco plain packaging, in light of
legal objections raised by tobacco companies it has decided to delay the enactment of
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legislation until after the investment treaty claim concerning Australian tobacco plain
packaging,
Philip Morris v Australia,
has been resolved.
60
Similarly, in
SD Myers v Canada
the Canadian government revoked a ban on hazardous waste exports to the US after a US
investor initiated arbitration.
61
The Canadian government judged – correctly as it turned out –
that it was likely that the measure would be found to be inconsistent with NAFTA. A third
example of this potential political cost associated with investment treaties is the case of
Ethyl
v Canada,
a claim brought by a US investor under NAFTA. It seems that this claim played at
least some role in encouraging the Canadian government to abandon the environmental
measure that was the subject of the dispute.
62
The settlement agreement required the payment
of damages (as noted above) and the withdrawal of the measure, thereby entailing both
economic and political costs to Canada.
63
In short, in circumstances where a foreign investor
opposes a preferred government policy on the basis of an investment treaty, and where that
policy is at serious risk of non-compliance with the investment treaty, developed states
comparable to the UK have amended, delayed or withdrawn preferred policies.
In this light, the second question – the extent to which an EU-US investment treaty grants US
investors in the UK more generous legal rights than they would otherwise have under UK law
– assumes particular importance. In earlier sections of this report we observe that an EU-US
investment treaty would likely follow the US model BIT in including text that limits and
clarifies the substantive protections provided by the treaty. These clarifications redress some
of the most obvious ways in which an EU-US investment chapter could confer greater rights
on US investors that are otherwise available under UK law – notably, some of the broader
interpretations of the doctrine of ‘legitimate expectations’ adopted by earlier arbitral tribunals.
Nevertheless, in our section on Economic Costs, we identified particular ways in which an
EU-US investment treaty would still grant US investors legal rights that they would not
otherwise have in the UK. This could strengthen the bargaining position of US investors in
60
Turia 2013.
SD Myers v Canada
Partial Award, 13 November 2000.
Tienhaara 2009.
61
62
There are some complications in assessing the extent of political cost implied by the events surrounding the
Ethyl case, as the abandoned measure, in its original form, was also ruled inconsistent with Canadian law.
63
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negotiations to settle contractual disputes with the UK government, for instance, which would
count as a cost to the UK.
While we are not in position to conduct a full comparative examination of the extent of legal
protection provided by UK law and by a prospective EU-US investment treaty, our more
rudimentary comparison has identified particular areas in which the US model BIT goes
beyond UK law is significant. On these grounds, and in light of the scale of US investment in
the UK, we think that there is a significant risk of political costs to the UK arising from future
preferred policies being abandoned or modified on account of objections from US investors in
the UK.
T
HE
P
OLITICAL
C
OST OF
C
ONTROVERSIAL
C
LAIMS
Another potential political cost of an EU-US investment treaty is the controversy engendered
by high profile claims against the UK government. The political cost of the controversy itself
is distinct from, and additional too, any economic costs to the UK of adverse arbitral awards
and any political costs associated with loss of UK policy space. In our Analytical Framework
report we suggested that the assessment of political costs attributable to public controversy
associated with high profile investment treaty claims should be handled with great caution.
Disagreement and controversy about public affairs is a normal feature of democratic society.
The possibility of controversy surrounding high profile claims against the UK government
under an EU-US investment treaty should not, in itself, be understood as a political cost to the
UK government. Rather, it is only if controversy around a
specific
claim triggers such
widespread opposition to treaties and international cooperation
in general
that it limits the
ability of the government of the day to pursue preferred policies on the international plane that
this public backlash could be considered a cost.
The risks of controversial claims under an EU-US treaty are very different to those under an
EU-China investment treaty. In the case of an EU-US investment treaty, any risk of
controversial claims stems from the potentially controversial subject matter of claims, rather
than the (state) ownership of US investors in the UK. US investors have brought claims
against other developed countries arising from: banking regulation (Genin
v Estonia);
domestic ownership and domestic content requirements on media organisations (CME
v
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Czech Republic);
regulation of the transboundary movement of hazardous waste (SD
Myers v
Canada);
regulation of national monopolies (UPS
v Canada);
the ability of private health
providers to operate alongside a host state’s public health system (Howard
and Centurion
Health v Canada);
and the phase out of carcinogenic pesticides (Chemtura
v Canada).
While
the majority of these claims were resolved in favour of respondent governments, the fact that
US investors are known to frequently bring controversial claims is important, as a particularly
sensitive case can provoke a broader political backlash.
Overall, we find that there is a risk that controversial claims by American investors against
the UK could result in political costs for the UK government. This is important given the
frequency with which US investors resort to investment treaty arbitration, including in
politically sensitive cases. The US government itself has realised that sensitive claims can
result in a political backlash. When a Canadian company, Loewen, filed a NAFTA claim
concerning its treatment by a Mississippi state court, one of the arbitrators was told
informally by the US Department of Justice that “if we lose this case, we could lose
NAFTA.”
64
Similarly, if a US investor seeks to override an Act of the UK Parliament, for
instance, or files a claim concerning sensitive areas of public regulation, such as
environmental or public health regulation, this could potentially provoke a political response
with systemic consequences for the ability of the UK government to support investor-state
arbitration as a governing institution.
T
HE
O
PPORTUNITY
C
OSTS OF AN
EU-US I
NVESTMENT
T
REATY
A final set of potential political costs are the opportunity costs of diplomatic and bureaucratic
resources expended in the negotiation and implementation of an EU-US investment treaty.
Our primary focus is on the commitment of the UK’s diplomatic and political resources
necessary to negotiate and implement the EU treaty. However, the scale of commitment of
EU resources is also relevant, to the extent the EU resources might otherwise be devoted to
other initiatives that would be of greater benefit to the UK.
64
See the discussion in Schneiderman 2010.
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Negotiations for an EU-US agreement on investment protection are likely to proceed as one
element of wider negotiations for an EU-US economic agreement. The fact that the EU and
the US will, in any case, be negotiating on economic issues means that the incremental
political costs of adding investment protection to the negotiating agenda are likely to be
relatively small. One factor that could significantly increase the political costs associated with
the negotiation of an EU-US investment treaty is if the EU holds out for an investment treaty
based on the model investment treaties of Western European states. As we explained above,
Western European investment treaties are typically short documents that set out standards of
investor protection in simple, terse language. In contrast, the US 2012 model BIT is a much
longer document that clarifies the standards of treatment provided and defines the procedure
for investor-state arbitration with much greater specificity. The US has, historically, been
unwilling to compromise on its model BIT. Therefore, if the EU declines to accept the terms
of the US model BIT, negotiations could become much longer and more complex. Based on
reports that the EU is, in its negotiations with Canada, preparing to accept an investment
chapter similar to the US model BIT, we think it is relatively unlikely that the EU will hold
out for an investment treaty based on Western European states’ model treaties.
The question of bureaucratic resources required to implement an EU-US investment treaty in
the UK can also be addressed succinctly. We understand that there are no plans to create any
new processes or agencies within the UK government to ensure compliance with a
prospective EU-US investment treaty. Instead, we understand that the UK government intends
to rely on the assumption that treating foreign investors in accordance with UK law will be
sufficient to meet its obligations under an EU-US BIT. If our understanding is correct, there
are unlikely to be any meaningful political costs associated with the implementation of an
EU-US investment treaty.
Overall, we conclude that there are likely to be some political costs associated with the
diplomatic and bureaucratic resources required to negotiate and EU-US investment treaty.
Assuming that the EU is willing to accept the terms of the 2012 US Model BIT, these political
costs are likely to be so small as to be essentially irrelevant to our overall assessment of the
net benefit of an EU-US investment treaty.
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7. C
ONCLUSION
In this report, we have offered an informed qualitative assessment of the likely costs and
benefits of an EU-US investment treaty as compared to a continuation of the legal status quo.
As in the China report, we have not attempted to value these costs and benefits in monetary
terms as we find this entirely unfeasible, even with more time and resources than were
available to us. To summarise our findings, we conclude that:
(1) There is little reason to think that an EU-US investment chapter will provide the UK
with significant economic benefits.
No two countries in the world exchange more
investment than the UK and the US, and there is no evidence that US or UK investors
view either country as suffering from the kinds of political risks against which
investment treaties are supposed to protect. Moreover, existing evidence suggests that
the presence of an EU-US investment chapter is highly unlikely to encourage
investment above and beyond what would otherwise take place. US investors have
generally not taken much notice of investment treaties in the past when deciding
where, and how much, to invest abroad – even when dealing with far more
questionable jurisdictions than the UK.
(2) There is little reason to think that an EU-US investment chapter will provide the UK
with significant political benefits.
The political relationship between Washington and
Whitehall is exceptionally strong, and we are aware of no evidence that it is vulnerable
to a meaningful risk of investor-state disputes that would become undesirably
“politicized” in the absence of an investment treaty. Secondly, we find it unlikely that
an EU-US agreement would make significant negotiating partners – like India and
China – more or less willing to agree to an investment treaty with the EU. Finally, it is
unclear whether the US is particularly keen on an investment protection chapter with
the EU, which means the Commission may not be able to use such a chapter as an
effective ‘bargaining chip’ in other trade and/or investment negotiations with
Washington. However, these are all issues that BIS might wish to explore in further
detail.
(3) There is some reason to expect an EU-US investment chapter will impose meaningful
economic costs on the UK.
Based on Canada’s experience under NAFTA, we would
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expect an EU-US investment chapter to be regularly invoked by US investors against
the UK for governmental actions that would normally not be challengeable under UK
law. While we would not expect the UK to lose many of these cases on the merits, the
UK will necessarily incur costs to defend itself. Legal costs in investment treaty
claims are substantial. The UK government may also find itself subject to pressure to
settle some claims, even when there are reasonable prospects of successfully
defending the claim on the merits. Finally, given the uncertain meaning of key
elements of international investment law, it is possible that the UK would occasionally
lose some arbitrations on the merits and be liable for significant damage awards.
(4) There is some reason to expect an EU-US investment chapter to impose meaningful
political costs on the UK.
Under investment treaties similar to a likely EU-US
investment chapter, US investors have brought claims that raise potentially
controversial questions. Should US investors bring similar claims against the UK, this
will increase the chances that a particular dispute could provoke a backlash against the
EU-US economic agreement as a whole or, perhaps more broadly, investor-state
arbitration as a governing institution.
In sum, an EU-US investment chapter is likely to provide the UK with few or no benefits. On
the other hand, with more than a quarter of a trillion dollars in US FDI stock, the UK exposes
itself to a significant measure of costs. Using Canada’s experience under NAFTA as an
example, we would expect those costs to be manageable overall, but nevertheless
considerable. Unlike in the UK at the time of writing, investment treaty arbitration has
become politically controversial in Canada because of the frequency and character of investor
challenges to Canadian government policies, and the Canadian government has had to invest
considerable resources in an investment-treaty defence capacity as a result of its more than 30
NAFTA claims. While few of these cases were lost on the merits, Canada has faced incentives
to settle cases either by paying compensation or, in some reported cases, by changing
government policies. We would expect the UK to have an approximately similar experience
under an EU-US investment chapter, though the larger stock of US investment in Britain
could imply that the UK may be subject to an even greater number of disputes – and thus
potential costs - than Canada.
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In none of our former reports have we made explicit policy recommendations for the UK
government, and neither will we here. However, our assessment does raise questions whether
the UK government might consider one of two options in negotiating an EU-US investment
treaty. The first is to exclude investment
protection
provisions from the agreement, and solely
focus on investment liberalization. Recall that to our knowledge British investors have not
expressed general concerns about their legal protection in the US. A pure liberalization
agreement would thereby allow the UK government to focus on the
actual
concerns of British
investors – market access – without at the same time exposing the government to potentially
expensive and controversial investment treaty claims. An alternative option is to include
investment protection provisions, but exclude comprehensive ISDS from the agreement. As
noted, the US (hesitantly) agreed to this in its FTA with Australia, which could provide a
model for an EU-US investment treaty as well. This, too, would imply that the UK would be
able to support an EU-US investment treaty overall, without being exposed to the types of
investment disputes that otherwise could result in net costs for the UK government.
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