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BITs and ICSID: transnational-friendly justice

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Observatorio Petrolero Sur

Freely translated by Anoosha Boralessa in 2015 for

BITs and ICSID: transnational-friendly justice.

Public hearing, 8 November 2012, Buenos Aires

The neoliberal hegemonic model which has, since the 1970s, become more robust, is based on the free movement of capital at the global level. To safeguard this freedom, transnational capital needed to create a harmonious international legal regime. It is in this context that from the 1990s, Argentina and the majority of the states of the global south signed numerous bilateral investment treaties with the industrialised countries of the North.

Both the BITs and the free trade agreements include a clause waiving the jurisdiction of the national courts in favour of arbitral tribunals to settle conflicts between an investor and the host state. The leading tribunal is the International Centre for the Settlement of Investment Disputes (ICSID), part of the World Bank Group.

Far from being neutral, ICSID has systematically favoured investors, sidelining the rights of the people and the priorities and public interests of states whenever it makes decisions, as its mandate demands that its decision-making is governed by a single enquiry: did the state breach the bilateral investment treaty or not? In this way, BITs and ICSID eliminate uncertainty on foreign investment: the risk evaporates, since nothing and no one will have priority over the profits of transnational capital.

In Argentina, agribusiness, exploitation of oil and minerals are some of the activities that transnationals are allowed to conduct with the impunity offered by BITs and ICSID. Our resources are not only rapidly disappearing but such activities are also impacting the environment, the rights of indigenous people, of the peasantry and the population in its entirety. So long as BITs remain silent on these issues, so too is the Argentine state silenced in its defence before ICSID.

It is necessary to debate these issues and raise awareness on the effects of foreign investment, on the implications of BITs and ICSID as a means of consolidating our dependency. There are several legal options to break away from this neoliberal regime but all will depend, in the final outcome, on the action of citizens. To retake national sovereignty involves risks because powerful interests are affected. But this is the only way to construct a system of social justice in harmony with nature. Countries such as Bolivia, Ecuador and Venezuela have made the first step to withdrawing from the ICSID Convention.

In light of the foregoing we invite you to attend the public hearing that will take place on 8 November 2012 at 16:00 in Room 1, Floor 2 of the Annex of the Honorable Congress situtated at Riobamba, 25. Our debate shall take place in the presence of legislators from different parties, experts, and representatives of social movements and organisations.

To allow the speakers adequate time, and, at the same time, to offer time for debate, we suggest that presentations are limited to 10 minutes.

To register and attend the public hearing, we would ask you to send an e-mail to, providing the following information: Name, Surname and DNI. The deadline for registration is 7 November at 12.

 Fuente: Observatorio Petrolero Sur