The Sixth Annual Forum of Developing Country Investment Negotiators was held on October 29-31, 2012, in Port of Spain, Trinidad and Tobago and co-hosted by the International Institute for Sustainable Development (IISD), the Government of Trinidad and Tobago, the Caribbean Community (CARICOM) Secretariat and the South Centre. Since it was first convened in 2007, interest and participation in the forum has grown steadily. This year’s event attracted 75 participants from 36 countries in Africa, Asia and Latin America and the Caribbean, as well as regional and international organizations, including the Commonwealth Secretariat, the United Nations Conference on Trade and Development (UNCTAD), the United Nations Economic Commission for Africa, the Caribbean Export Development Agency and the Southern African Development Community (SADC).
The forum is the only event of its kind and affords developing country investment negotiators a unique platform for knowledge-building, exchange of experiences and networking. Having attended the forum for the first time last year in Uganda, I found the experience to be invaluable, a view which was cemented after my participation this year.
The forum encourages participants to develop their own critical perspectives on issues which are germane to the negotiation of international investment treaties, such as the costs and benefits of these instruments, the implications of investment treaty provisions for sustainable development, the role of investment treaties in the broader legal framework for investment including domestic law and contracts, and the risks and challenges of the investor-state arbitration system.
The specific objective of this year’s forum was to discuss and examine ways of making the transition to an investment framework that is more balanced and supportive of sustainable development. In that regard, the forum focused on three tools that can assist countries in achieving that goal, all of which were finalised in 2012. Like the IISD’s 2005 Model Investment Agreement for Sustainable Development, these instruments are useful references for countries seeking to build a sustainable investment framework. The first is UNCTAD’s Investment Framework for Sustainable Development, which sets out core principles which can be developed into guidelines for national investment policies and options for investment treaties. The second is the Commonwealth Secretariat’s Investment Guide for Developing Country Negotiators. Formally launched at the forum, the guide identifies best practices in integrating sustainable development into international investment agreements and examines the costs and benefits of alternative approaches. The third is the Model Investment Treaty template for SADC States, which was developed by the Investment Committee of SADC.
The focus of the sessions was broad-ranging and the presentations and discussions were both stimulating and thought-provoking. Participants gained a better understanding of the new models for investment and sustainable development and the ways in which they can guide not only the negotiation of investment treaties but also the elaboration of the domestic legal framework for investment. Attendees also enhanced their appreciation of the challenges in making the transition to a sustainable development model, and possible solutions to addressing past approaches that are at odds with an investment framework that supports sustainable development. In addition, the forum facilitated greater awareness of the growing breadth of investor-State claims and the implications for sustainable development. Importantly, negotiators developed greater insights into options for implementing sustainable development into core provisions of investment agreements, in particular, fair and equitable treatment, expropriation, pre-establishment rights, performance requirements and investor obligations.
The forum enables participants to benefit from the depth of knowledge and experience of a wide-cross section of experts with diverse backgrounds, including those working in intergovernmental organizations, nongovernmental organizations and in private practice. However, an invaluable benefit of participating in the forum is the opportunity for developing country negotiators themselves to share their experiences with their counterparts in various regions of the world. This exchange of experiences is facilitated not only through the participation of negotiators as speakers in the substantive sessions, but also through breakout group sessions in which participants assess the costs and benefits of various options for crafting provisions in investment treaties. This process of peer exchange can serve to generate consensus around the relative merits of pursuing certain options for investment treaty provisions.
The forum also affords participants opportunities to network and forge meaningful relationships with counterparts around the world. Moreover, the annual rotation of the venue of the forum to different regions ensures that negotiators from around the world can benefit from participation. Indeed, the hosting of this year’s forum in the Caribbean enabled officials from most CARICOM countries to attend for the first time.
The close involvement of former participants in the development of the agenda ensures the relevance of the forum to developing country investment negotiators and enhances their sense of ownership of the process and commitment to its future development.
Investment negotiators from developing countries should prioritize participation in the forum as it further equips them to weigh and balance carefully various options and guide the process of making appropriate choices for the investment legal framework for their country or region.
Author: Dr Chantal Ononaiwu is the Trade Policy & Legal Specialist at the Office of Trade Negotiations, CARICOM Secretariat, based in Barbados.