Standards of Protection and the Obligations of the Investor

The evolution of treatment and protection of foreign investments under international investment law shows a gradual progression from ‘diplomatic protection’^[2] to the adoption of international investment agreements (IIAs) and investor-state dispute settlements (ISDS) with the driving force being investor protection.^[3] IIAs have been exceptionally effective in establishing standards of protection^[4] for investors, which have been backed by the decisions of investment tribunals.^[5]

These standards of protection remain central to investor protection. However, in recent times, the focal point in international investment law has been a need for reform to rebalance the perceived asymmetry in the rights and protections offered to investors without corresponding obligations.^[6] This has been of particular concern as investors have amassed revenue streams larger than the GDPs of some countries and are growing larger and more influential.^[7] This has resulted in a clamour and unprecedented call for a balance in the standards of protection to be offered not only to investors but also host states, with one of the most advocated means being the inclusion and imposition of obligations such as corporate social responsibility, the protection of human rights and environmental obligations on investors.

The inclusion of investor obligations in IIAs to rebalance the relationship between host states seeking state-driven reforms without breach of its obligations under IIAs and investors seeking predictability of the socio-economic and legal regime within a host state providing guarantees of investor protection has been propounded in different frameworks:

• the framing of investor obligations from human rights obligations owed by economic actors,
• imposing obligations on investors to observe national and international laws including environmental and human rights legislation;
• including obligations to respect human and environmental rights in IIAs; and
• interpretation of IIAs by investment tribunals to establish investor obligations.^[8]

This chapter will address the recent establishment and possible effects of soft and binding obligations on investors in IIAs by either the renegotiation of old-­generation IIAs or the execution of new-generation IIAs. First, we will address the new obligations being included specifically in relation to health and environmental rights in IIAs, which an investor in the telecoms sector must consider pre-and post-establishment of investments. We will consider some of the criticism, observations and uncertainties of new and emerging technologies regarding potential negative health effects, the environmental impact of subsea cables^[9] and 5G technology,^[10] and how investor obligations imposed on such investors may affect investment protection provided under the IIAs. Finally, we will consider the possibility of host states initiating claims and counterclaims before investment tribunals to enforce such investor obligations and the possible resultant limitations of the extensive standards of protection offered to investors in IIAs.

Obligations of investors in new generation IIAs

The ‘new-generation’ IIAs retain the standards of protection in ‘old-generation’ IIAs but also introduce provisions that to a certain degree limit investment protection provisions by either preserving the regulatory powers of host states even if such provisions result in limiting the protection offered to investors in IIAs, or including soft obligations encouraging investors to employ corporate social responsibility practices and contribute to the development of contracting states, or binding obligations pertaining to corporate social responsibility, human rights, labour, anti-corruption, corporate governance and the environment.^[11]

In light of the fact that investor obligations are either non-binding or binding in differing IIAs with varied effects and considerations, we will begin by considering IIAs, which provide for soft obligations that are non-binding on investors, and then consider some proposed model IIAs that seek to impose binding obligations on investors, which may be enforceable under the dispute resolution mechanism, as well as the first signed IIA, which incorporates binding investor obligations.

Brazil–India BIT

The Brazil–India BIT,^[12] like the Brazil–Malawi BIT,^[13] contains provisions by which investors shall strive to achieve the highest possible level of contribution to the sustainable development of the host party and the local community through the adoption of a high degree of socially responsible practices, based on the voluntary principles and standards set out in this chapter. The following subsections include sustainable development, respect for internationally recognised human rights of those involved in the companies’ activities, and refraining from seeking or accepting exemptions that are not established in the legal or regulatory framework relating to human rights, environment, health, security, work, tax system, financial incentives or other issues.

The use of ‘shall’ usually projects an informed understanding that it is the intention that the listed corporate social responsibility obligations are binding on the investor. However, it is noteworthy that the obligation imposed is a ‘best efforts’ obligation to comply with ‘voluntary’ principles and standards for a responsible business conduct consistent with the laws of the host state, including respect of internationally recognised human rights of those involved in the companies’ activities, and refraining from seeking or accepting exemptions that are not established in the legal or regulatory framework relating to human rights, environment, health, security, work, tax system, financial incentives or other issues.

Therefore, it can be concluded that the corporate social responsibilities of an investor under the Brazil–India BIT and Brazil–Malawi BIT are simply soft or non-binding obligations, which can be described as merely suggestive to an investor and not necessarily enforceable. On the other hand, some proposed IIAs provide for binding obligations on an investor. One of such IIAs is the Pan African Investment Code.

Pan African Investment Code

The Draft Pan African Investment Code^[14] (PAI Code) imposes various soft and binding obligations on investors including socio-political obligations,^[15] obligations to refrain from bribery of government officials,^[16] binding corporate social responsibility^[17] on investors to meet standards of corporate governance,^[18] compliance with national laws,^[19] sustainable development,^[20] obligations as to the use of natural resources not to the detriment of public interest,^[21] environmental obligations,^[22] as well as non-binding principles of business ethics and human rights.^[23]

Specifically, Article 22 of the PAI Code obliges an investor to follow ‘the laws, regulations, administrative guidelines, and policies of the host state’;^[24] to ensure that their economic objectives ‘do not conflict with the social and economic development objectives of host States and shall be sensitive to such objectives’;^[25] and ‘contribute to the economic, social, and environmental progress with a view to achieving sustainable development of the host State’.^[26]

The PAI Code is one of the few IIAs that makes corporate social responsibility imposed on investors a binding obligation as it remains mostly a non-binding obligation in most IIAs as seen above in the Brazil–India BIT and Brazil–Malawi BIT. Another IIA that has been signed by the parties but is yet to come into force that provides for binding investor obligations is the Nigeria–Morocco BIT.

Nigeria–Morocco BIT

The Nigeria–Morocco BIT^[27] is the first signed IIA that imposed an obligation on investors to respect human rights, the environment, labour standards and more. As seen in many IIAs, the Nigeria–Morocco BIT provides for some non-binding provisions encouraging and requiring the best endeavour of investors and investments to respect, recognise and observe social responsibility, environmental laws, policies and multilateral environmental agreements.^[28] However, the Morocco–Nigeria BIT takes a step further by providing pre- and post-establishment binding investor obligations in relation to environmental and social impact assessments, anti-corruption, and environmental management, labour standards and human rights.

Article 14 of the Morocco-Nigeria BIT provides for a pre-establishment binding obligation on an investor to comply with environmental assessment screening and assessment processes required for its proposed investment as required by the laws of the home or host state for such an investment. The investor is also required to conduct a social impact assessment of the potential investment in line with the laws of the host state. These pre-establishment environmental and social impact assessments ultimately align with and sustain the post-establishment investor obligations.

The post-establishment investor obligations are provided in Article 18 of the Morocco–Nigeria BIT, which provides as follows:

1. Investments shall, in keeping with good practice requirements relating to the size and nature of the investment, maintain an environmental management system. Companies in areas of resource exploitation and high-risk industrial enterprises shall maintain a current certification to ISO 14001 or an equivalent environmental management standard

2. Investors and investments shall uphold human rights in the host state.

3. Investors and investments shall act in accordance with core labour standards as required by the ILO Declaration on Fundamental Principles and Rights of Work, 1998.

4. Investors and investments shall not manage or operate the investments in a manner that circumvents international environmental, labour and human rights obligations to which the host state and/or home state are Parties.

The use of ‘shall’ without reference to voluntary principles or best endeavour or best-efforts obligations in both the pre- and post-establishment investor obligations provides clarity and certainty that the BIT intends to create minimum standard obligations binding on investors with respect to the environment, labour and human rights of citizens of the host state. The binding nature of the investor obligations is reinforced by the inclusion of Article 20 of the Nigeria–Morocco BIT whereby investors can be held civilly liable in their home state for acts or decisions made in relation to their investment, which leads to significant damage, personal injuries or loss of life in the host state.

Similar provisions to the Nigeria–Morocco BIT are also found in the Economic Community of West African States (ECOWAS) Supplementary Act on Investment,^[29] which entered into force on 19 January 2009 and the Southern African Development Community (SADC) Model BIT.^[30]

The impact of the telecoms sector on human health and the environment

The investor obligations ensure that, despite the grand theme of investor protection, investments are not encouraged at the cost of the environmental, health, labour and public policy to the detriment of a host state.^[31] The negative environmental impacts of new and more advanced technologies such as 5G are not completely known but there are concerns in relation to energy use, telecommunication facilities and more.

The new and emerging developments in technology, including wireless technology such as 5G, which will enable higher capacity and faster speed of the internet for more technological applications and devices, may have severe environmental and health impact. It has been considered that 5G may impact climate change as it will inevitably increase global energy usage, which in turn will lead to an increase of greenhouse gas emissions, a major contributor to natural disasters. It is speculated that the deployment of 5G technology will create an increased demand and consumption of devices resulting in increased production of devices such as mobile phones, computers, tablets and other devices with an increased negative environmental impact.^[32]

The production of such technological devices has an established negative impact on the environment and is unsustainable. The components utilised for the manufacturing of smartphones and other technological devices are often non-recyclable, which creates tons of waste when replaced by consumers. In the world today, there are about 6.64 billion smartphone users and 7.26 billion mobile phone users.^[33] It is estimated that the carbon emissions to produce a single device excluding any accessories is comparable to the emissions produced by driving an average European car for 300km.^[34]

Some literature also suggests that these technological advances are considered to have negative effects on human health. The World Health Organisation/International Agency for Research on Cancer classified radiofrequency electromagnetic fields (EMF) required to access 5G technology as possibly carcinogenic to humans based on an increased risk of glioma, a malignant type of brain cancer, associated with wireless phone use.^[35]

There is a growing concern among doctors and researchers in medical sciences that EMF exposure will increase and be more harmful to human health with the deployment of 5G technology. Experts in medical science have taken into consideration the fact that the successful deployment of 5G technology would mean installation of 5G transmitters with an estimated 10 to 20 billion connections to various technological devices not limited to devices but including autonomous vehicles, smart cities, household appliances, surveillance cameras and more. This could ultimately mean that there will be unavoidable exposure to EMF, which experts consider may not only result in high risk of cancer but also genetic damage, memory lapses, learning difficulties and other neurological disorders.^[36]

Considering the precedents of investor obligations in the Nigeria–Morocco BIT or the PAI Code or SADC Model Treaty considered in this chapter and the possible consequences of new technologies in the telecoms sector, it is important that an investor in the sector considers carrying out the prescribed environmental impact assessment screening criteria and assessment processes applicable to such investments in the host state pre-establishment. An investor must also consider applying the precautionary principle and should also keep in mind the requirement to maintain an adequate system for environmental and social impact assessment.

If the investor successfully establishes the investment in the host state, the investor must realise that there are binding obligations requiring the investor to maintain a current certification to ISO 14001 or an equivalent environmental management standard post-establishment of the investment.^[37] However, despite the fact that investor obligations have been included in some new generation IIAs to afford host states with a level of protection particularly in relation to human health, the environment, labour and more, the question still remains whether host states have the capacity to enforce these obligations included in IIAs.

Enforcement of investor obligations in new generation IIAs

It is possible that the inclusion of obligations on investors as discussed above may have limited impact on the standards of protection offered to investors in IIAs. Theoretically, host states should be able rely on the binding provisions of investor obligations in the various IIAs to bring claims against erring investors. However, none of the IIAs provide a dispute resolution clause wide enough to entertain initial claims by host states against investors for breach of obligations.

For instance, the dispute resolution provision in the Nigeria–Morocco BIT provides a unilateral right on the investor to commence a dispute against the host state. Article 27 provides that if disputes cannot be settled according to the provisions of Article 25, the investor concerned may submit at his or her preference the dispute settlement to either the International Centre for the Settlement of Disputes (ICSID), an arbitral ad hoc tribunal established under the Arbitration rules of United Nations Commission on International Trade Law (UNCITRAL) and any other arbitral institution or any arbitral rules, if agreed by the disputing parties. Hence, despite providing investor obligations, there is no provision of enforcement of such obligations or seeking relief for breach of such obligations by the investor provided in the Nigeria–Morocco BIT.

The Nigeria–Morocco BIT is comparable to the SADC Model BIT, which at Article 29.4 provides for submission of a claim to arbitration solely by an investor upon fulfilling a set of conditions. Similarly, there is no provision in the dispute resolution clause providing for the initiation of a claim by a host state against an investor even for breach of binding investor obligations.

On the other hand, the PAI Code, which also provides for binding investor obligations, arguably permits host states to bring a claim against investors for breach of its obligations due to broader language used in its dispute resolution provision. Article 42 of the PIA Code allows for Member States to agree to utilise the Investor-State Dispute Settlement mechanism and encapsulates an investment dispute between an investor and a Member State pursuant to the Code. Therefore, it is arguable that the language is broad enough to raise a presumption that under the PIA Code, host states may bring claims against investors for binding obligations.

Nonetheless, there remains the additional hurdle that IIAs are structured in a manner that host states present a binding offer to investors to be bound by the dispute settlement provision of an IIA. It is usually the request for arbitration issued by an investor that serves as consent by the investor to be bound by the dispute settlement provision of the IIA. Therefore, even in the instance that the language of an IIA allows for a host state to initiate a claim against an investor, consent is required to submit a dispute to an investment tribunal.^[38]

Some new generation IIAs provide for investor liability that may not require consent. For instance, the Nigeria–Morocco BIT, provides for an additional judicial forum for enforcement of investor obligations before the domestic courts of the home state of the investor.^[39] Given the limited instances in which a host state may have the right to initiate a claim against an investor even in instances where an IIA provides for binding investor obligations, a concern that a telecoms investor must consider in facing possible liabilities for breach of binding obligations is the ability for host states to bring counterclaims or claims for the purpose of a set-off against the investor in investor-initiated claims for breaches of the obligations prescribed in the IIAs.

The Nigeria–Morocco BIT does not expressly provide a right for host states to file counterclaims on the basis of the binding investor obligations. However, Article 27, which provides for the settlement of disputes between a party and investor of the other party provides that any disputes may be submitted to either ICSID or an arbitral ad hoc tribunal established under the Arbitration Rules of the UNICTRAL. It is noteworthy that both the ICSID Convention^[40] and UNCITRAL Arbitration Rules^[41] allow host states to bring a counterclaim. In the case of the ICSID Arbitration Rules, the counterclaim must arise directly from the subject matter of the dispute before the Tribunal. Therefore, it is arguable that host states, albeit in restricted fashion, may initiate counterclaims for breach of investor obligations.

Differing from the Nigeria–Morrocco BIT, the PAI Code and SADC Model BIT expressly provide that host states may assert claims for the purpose of set-off or, mitigating defences or, counterclaims against investors. By virtue of Article 43 of the PIA Code and Article 19 of the SADC Model BIT, where an investor is alleged by a host state in a dispute settlement proceeding under the Code to have failed to comply with its obligations under the Code or other relevant rules and principles of domestic and international law, the competent body hearing such dispute shall consider the investor’s breach, if proven to be materially relevant to the issues before it and if so, the mitigating or offsetting effects that such breach may have on the merits of the claim or any damages awarded in the event of such award. It is noteworthy that the PAI Code and SADC Model BIT not only provide host states with the right to initiate counterclaims but also vests a host state with the right to seek damages or other relief resulting from the breach of the investor’s obligation.

Although it is yet to be seen, it will appear that the protection offered to investors in IIAs may be impacted by the host state’s ability to initiate a counterclaim against erring investors, and such counterclaims could significantly impact the damages or claims made by the investor for breach of standards of protections. However, given the dual restriction that counterclaims can only be asserted where the investor initiates proceedings for breach of standards of protection and the fact that a counterclaim is likely to be required to arise from the subject matter of the dispute initiated by the investor before the tribunal, host states continue to face major restrictions in enforcement of investor obligations and investors remain quite protected in encompassing standards of protections prescribed in IIAs.^[42]

Nonetheless, it is possible to infer the mitigating effects that such investor obligations may have before an investment tribunal in a claim for investor protection considering some decisions involving measures taken by host states to ensure the protection of the public health of ther citizens despite the standards of protection provided in the IIA. In the notable Philip Morris tobacco packaging arbitral decisions,^[43] it was alleged that through several tobacco control measures regulating the tobacco industry, Australia and Uruguay had violated their respective BITs by interfering with the property and trademark rights associated with the tobacco giant.^[44] Uruguay in turn claimed that the measures were adopted in compliance with Uruguay’s international obligations and for the sole purpose of protecting public health.

In summary, the claimants acquired Abal, a manufacturer of cigarettes for export and sale in Uruguay’s local market, in 1979. Abal concluded licence agreements to manufacture and sell cigarettes under various Philip Morris brands. Abal also used a number of Uruguayan trademarks registered in its own name to sell tobacco products. On 14 March 2002, the then president of Uruguay issued a ‘Declaration of Promoted Activity for Investment Project of Abal Hnos. S.A.,’ which included a package of tax exemptions and credits to Abal with the objective of increasing Abal’s production capacity to ‘supply the Paraguayan market with Philip Morris products’.

On 19 June 2003, Uruguay signed the World Health Organisation Framework Convention on Tobacco Control (WHO FCTC), and on 9 September 2004, Uruguay ratified the treaty. In 2008, the state parties to the WTO FCTC issued guidelines for the implementation of some provisions of the FCTC. These guidelines included the requirement to enlarge health warnings above 50 per cent to the maximum size possible and, adopt plain packaging or restrict as many packaging design features as possible.

On 18 August 2008, Uruguay’s Ministry of Public Health issued Ordinance 514, which, inter alia, required each brand of tobacco products to have a single presentation. Pursuant to the Ordinance, tobacco companies could only market one variant for each family brand of tobacco. The tobacco companies had discretion to pick which variant would remain on the market. For example, for the Marlboro family brand, Philip Morris chose Marlboro Red. Correspondingly, Marlboro Light, Blue and Fresh Mint were taken off the market.

On 15 June 2009, Presidential Decree 287/009 was enacted. It entered into force on 22 December 2009. Article 1 mandated an increase in the size of health warnings on cigarette packages from 50 to 80 per cent of the lower part of each of the main sides of every cigarette package. As a result of the measure, tobacco companies had to limit their branding in the remaining 20 per cent of the front and back of the packaging. On 1 September 2009, the Ministry of Public Health issued Ordinance 466. Ordinance 466 modified Ordinance 514 but restated that each brand of tobacco products should have a single presentation. Ordinance 466 also restated that each tobacco brand should have the 80 per cent health warning.

The Tribunal determined that the measures taken by Uruguay was a valid exercise of its powers for the protection of public health and therefore, its action could not validly constitute expropriation of the claimants’ investment. The Tribunal also held that Uruguay had not breached the BIT provisions on ‘legitimate expectations’ and the ‘stability of the legal framework’, considering that the claimants had no legitimate expectations that the measures taken by Uruguay or similar measures would not be adopted and further considering that the effect of the measures had not been such as to modify the stability of the Uruguayan legal framework.

The decision in Philip Morris shows a shift in the usual unlimited standards of protection provided to investors under IIAs and is an instructive example of the ability of investment tribunals to prioritise public policy issues such as public health and the environment. The new generation IIAs include express measures that may be taken by a host state to regulate public policy issues. The addition of investor obligations in IIAs also signifies that the investment protection in time to come may be limited to the ability of the investor to meet the obligations prescribed in IIAs and will serve as mitigating factors in the reliefs sought by investors before investment tribunals.

Conclusion

The introduction of investor obligations in IIAs is a step towards balancing the perceived asymmetry in the international investment regime. However, as there are currently no IIAs in force that provide for binding investor obligations, the broad standards of protection of investments enjoyed by investors under IIAs remains untouched by the non-binding investor obligations. This is more evident in the fact that there is a major gap in the ability of a host state to bring a claim for the breach of the investor obligations. However, with such rapid advances in technology in the telecoms sector, host states are likely to try and impose stricter obligations on investors when it comes to public health and the protection of the environment. It remains to be seen whether these stricter obligations will be found in IIAs that are being renegotiated or in more stringent domestic legislation that may be enacted. Either way, the surge of investment disputes in the telecoms sector is likely.

Notes