International Commission of Jurists and Myanmar Investment Commission: Workshop Series
Bilateral Investment Treaties & the Role of the Myanmar Investment Commission
VENUE: Summit Parkview Hotel, Yangon
July 28th, 2014
Last week I was the master of ceremonies at an ICJ hosted workshop on Bilateral Investment Treaties and the Role of the Myanmar Investment Commission on the 28th of July in Yangon. The objective of the workshop was to share ideas and experiences concerning BITs and their impact on government regulatory capacity in the areas of human rights and environmental protection. It is believed that this is one of the first times these subjects have been addressed with the government of Myanmar. It was acknowledged that an important alternative perspective on BITs was put forward.
The Deputy Minister, Dr. U Maung Maung Thein, from the Ministry of Finance delivered the opening remarks on behalf of the government of Myanmar. He shared that Myanmar was signing about 10 BITs with various nations and with more to come in the near future, they were hoping to enhance their legal knowledge from our workshop. He expressed the ministry’s pleasure at working with the ICJ.
Carlos Lopez, ICJ’s Senior Adviser on Business & Human Rights, discussed how investment agreements can contribute to sustainable development and underscored our concern with giving too much power to investors to arbitrate that happens at the expense of the government’s right to formulate public interest policies that protect and promote the rule of law and human rights.
Prof. Aung Tun Thet, President’s Economic Adviser and member of the MIC, delivered the keynote address, where he set the context of investments in Myanmar and explained the role of the MIC in regulating investments. He talked about the challenge in integrating investment policies into their development strategies and incorporating sustainable development objectives in investment policies.
Antony Crockett, Senior Assoc. at Herbert Smith Freehills (HK), International Litigator & Arbitrator, delivered an excellent presentation, walking through BITs, explaining their history, significance and impact on sustainable development and discussing the Japan-Myanmar BIT. He highlighted the need to brush up national courts to prevent investors from going to arbitral tribunals and bypassing national courts. Citing arbitration cases from his personal experiences, he stated that governments hardly consider human rights and environmental implications when they seek to terminate BITs. There is a need to consult to consider the risks of signing up to the BITs; that this was a concern to developed states as well; that transparency and predictability was paramount for investors and research has shown that there is no real link between FDI and BITs.
Andrea Saldarriaga, London School of Economics & Political Science, Centre for Investment Law & Human Rights Project, Expert Network, United Nations Conference on Trade and Development, discussed the implications for public policy and talked about how at the different policy levels – policy, normative and implementation – provisions are needed to require human rights risk management, supervise implementation of procedures to address these risks and provide for mechanisms to deal with disputes and provide remedies – in contracts, in the law: require HRIA, grievance mechanisms; in the treaty: restrict definition of investment, condition protection of the treaty to observance of HR concerns.
Sanya Reid Smith, Legal Advisor and Senior Researcher, Third World Network, walked the audience through international cases on arbitration and sustainable development and discussed sustainable development policies on access to medicine and health care. Cases highlighted include the Philip Morris v Australia (Hong Kong-Australia BIT), claiming US billions for plain packaging; Philip Morris v Uruguay for tobacco control; FTA ISDS cases: Ethyl v Canada, Metalclad v Mexico, Renco v Peru; NAFTA ISDS case: Eli Lilly v Canada: and claiming US$481million for revoked patents on medicines (ongoing).
Secretary of the Myanmar Investment Commission, Director General of the Directorate of Investment and Company Administration, U Aung Naing Oo, delivered the closing remarks on behalf of DICA/MIC, where he expressed his profound gratitude and appreciation to the ICJ for an important discussion on an issue that has immediate and future implications for Myanmar’s economic growth, protection of the environment and human rights development. He also clearly explained the perspective of Myanmar regarding negotiations being one of rehabilitating their image to investors and foreign states. There is great appetite among Myanmar officials and civil society to know more about issues relating to business and human rights and in particular on the risks of using BITs to protect foreign investments while giving away the State capacity to take certain measures necessary to protect human rights.
|Workshop: ICJ/MIC||Summit Parkview Hotel||28/07/14|
|08:30 Arrival and Registration|
|9:00 Opening Remarks:Government of the Republic of the Union of Myanmar||Ministry of Finance: Deputy Minister, Dr U Maung Maung Thein|
|9:15: Opening Remarks:||ICJ: Dr. Carlos Lopez, Senior Legal Advisor based in Geneva and Head of the Business and Human Rights Project|
|9:30 Key Note Address: Investment Law: the Role of the MIC||Prof. U Aung Tun Thet, Economic Adviser to President and Member of Myanmar Investment Commission|
|10:30 Coffee Break|
|11:00 Introduction to Bilateral Investment Treaties (BITS) and implications for Public Policy||Antony Crockett, Senior Assoc. at Herbert Smith Freehills (HK), International Litigator & Arbitrator|
|12:30 Lunch Break|
|13:30 Bilateral Investment Treaties and Sustainable International Development||Andrea Saldarriaga, London School of Economics & Political Science, Centre for Investment Law & Human Rights Project, Expert Network, United Nations Conference on Trade and Development|
|15:00 Coffee Break|
|15:30 Arbitration and Sustainable Development: International Cases||Sanya Reid-Smith, Legal Advisor and Senior Researcher, Third World Network and Advisor to the South Centre|
|17:00 Closing Remarks||Dr. Carlos Lopez, Senior Advisor, International Commission of JuristsSecretary of the Myanmar Investment Commission, Director General of the Directorate of Investment and Company Administration, U Aung Naing Oo|
|18:00 Dinner||Summit Parkview Hotel|