A member of Venezuela’s ICSID defence team and one of the authors of the “Profiting From Injustice” report are among 12 appointees to a commission that will assess whether Ecuador should terminate its remaining bilateral investment treaties.
The international names include Argentina’s former treasury attorney general Osvaldo Guglielmino, who led his country’s ICSID defence team until his resignation in 2010; and Hildegard Rondón de Sansó, a Venezuelan former Supreme Court justice who is currently defending her government against a US$30 billion ICSID claim brought by US oil company ConocoPhillips.
The commission also includes Uruguayan national Cecilia Olivet of the Transnational Institute of Policy Studies in Amsterdam, who co-authored a report last year that slammed the investment arbitration system; and Carlos Gaviria, a Colombian lawyer, professor and politician.
In addition, the commission features a number of debt-relief campaigners, including Ecuadorean Piedad Manceroand Argentine Alejandro Olmos of the Jubilee 2000 network. The pair sat on an earlier audit commission that found that much of Ecuador’s foreign debt was illegitimate in a 2008 report. Ecuador defaulted on its interest payments and began a debt restructuring process that same year.
Other panelists are activists from the ATTAC movement (which supports a “Tobin tax” on financial transactions), the Hemispheric Social Alliance and the Mexican Action Network on Free Trade.
The new commission, known by its Ecuadorean acronym CAITISA, was established by a presidential decree in May this year to address the “urgent need for a review” of the state’s investment treaties.
Among other matters, CAITISA will investigate the circumstances of the negotiation and ratification of each treaty; its compatibility with Ecuadorean law and the country’s obligations under international human rights and environmental law; and whether arbitral tribunals have ruled expansively or erroneously on the interpretation of its provisions.
CAITISA will also consider the treaties’ impact on foreign direct investment in the context of Ecuador’s 2013-2017 development plan; and suggest potential alternatives to the current system of investment arbitration.
According to the decree, the commission has eight months to complete its task, which is renewable once for a further eight months. The commission has also been granted the power to order document disclosure from other public agencies.
Precisely how many BITs will come under review remains the subject of some uncertainty, with initial press reports referring to 32 treaties, later corrected to 26.
A special report published by local newspaper El Telégrafo in May this year provides a table of the 26 BITs apparently under scrutiny. But the list includes a number of treaties that have either already been terminated by decree or (in the case of a BIT with Costa Rica) apparently never came into force.
The table also omits mention of Ecuador’s BIT with Italy, which was declared unconstitutional by Ecuador’s Constitutional Court in May this year; and a 1996 treaty with Russia that was apparently never published and also appears not to be in effect, according to a list issued by UNCTAD in June this year.
If UNCTAD’s list is accurate, CAITISA’s enquiry will be focused on 16 treaties still in force: those with Argentina, Bolivia, Canada, Chile, China, France, Germany, Italy, the Netherlands, Peru, Romania, Spain, Sweden, Switzerland, the UK, the US, and Venezuela.
Ecuador is also currently seeking to annul a US$2.3 billion award issued last year in favour of the US’s Occidental Petrolem. The ad hoc committee hearing the request granted a stay of enforcement of the award on 30 September. Occidental had argued that the CAITISA decree “confirms the inevitability” that an Ecuadorean court will refuse to enforce the award, and that the CAITISA commission’s scrutiny of the award would be incompatible with Ecuador’s obligations under the ICSID Convention.
The CAITISA panel in full
- Betty Tola, Secretary of Policy Management
- Alejandro Olmos (Argentina) (nominated as a delegate of Ricardo Patiño, Ecuadorean Minister of Foreign Affairs)
- Alexis Mera, Legal Secretary of the Presidency
- Pavel Muñoz, Secretariat of Development (SENPLADES)
- Carlos Gaviria (Colombia)
- Osvaldo Guglielmino (Argentina)
- Hildegard Rondón de Sansó (Venezuela)
- Cecilia Olivet (Uruguay), Transnational Institute
- Piedad Mancero (Ecuador), Jubilee 2000
- Javier Echaide (Argentina), ATTAC Argentina
- Alberto Arroyo (Mexico), Mexican Action Network on Free Trade (RMALC)
- One Ecuadorean appointee still to be confirmed
