The Regional Comprehensive Economic Partnership (RCEP) is being negotiated in secret by 16 countries* and a leaked copy of its investment chapter includes proposals to allow foreign investors to sue governments at an international tribunal.
These investor suits can be for unlimited cash damages and compound interest. If the proposals are accepted, this investor-to-state dispute settlement (ISDS) would allow foreign investors to sue RCEP governments if they regulate in ways that disadvantages the foreign investor, eg by reducing its profits, including by introducing new laws/policies or changing their laws/policies, even if it is for public interest reasons.
Past ISDS cases have successfully challenged health, environmental, tax, financial regulation and many other laws and a losing government in one case had to pay an investor as much as US$40billion. This is difficult enough for any government to afford, but RCEP includes three least developed countries: Cambodia, Laos and Myanmar who would find it particularly burdensome to pay foreign investors this much.
There are 696 known ISDS cases against 107 countries and the number filed each year has been rapidly increasing (the most ever were filed in 2015). These cases which broadly interpret investors’ rights and restrict governments’ ability to regulate have caused many developed and developing country governments to rethink their support for these investment protection provisions (including ISDS) in bilateral investment treaties (BITs) and free trade agreement (FTA) investment chapters. For example, in RCEP countries alone:
- India and Indonesia are withdrawing from their BITs,
- Singapore’s Attorney General and the Chief Justice of Australia’s highest court have expressed concerns about ISDS and
- The New Zealand Chief Justice noted that human rights based determinations of domestic courts may give rise to ISDS claims.
In countries outside RCEP, there is also opposition to ISDS including:
- Other countries such as South Africa and Ecuador are withdrawing from their BITs,
- Germany’s Economic Minister opposes ISDS in Europe’s FTA negotiations with the USA,
- the Dutch, French and Austrian Parliaments oppose ISDS in their FTA negotiations with Canada and the USA and
- All US state-level parliaments oppose ISDS in any treaty.
Various United Nations (UN) human rights bodies have also stated their serious concerns about ISDS including 10 UN Special Rapporteurs/Independent Experts on human rights who said that the ISDS cases demonstrate ‘that the regulatory function of many States and their ability to legislate in the public interest have been put at risk’ and governments have been chilled from regulating. They recommended that in negotiations of FTAs like RCEP, the negotiating texts are published and the negotiations are conducted transparently with the participation of stakeholders including civil society.
RCEP trade ministers will meet in Laos on 5 August 2016 to try and resolve some of the issues that are stuck in the negotiations.
Given this, the 95 national and regional civil society organisations listed below which cover all RCEP countries (a number of persons requested additionally to sign on as individuals) strongly urge RCEP countries to reject ISDS in the agreement.
*The RCEP countries are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, Viet Nam, Australia, China, India, Japan, Korea and New Zealand
SIGNATORIES
| Organization | Coverage |
| 1. GRAIN | Global |
| 2. Third World Network | Global |
| 3. Transnational Institute (TNI) | Global |
| 4. World Federation of Public Health Associations | Global |
| 5. LDC Watch
6. Asia Pacific Forum on Women, Law & Development (APWLD) |
Global
Asia & Pacific |
| 7. Public Services International Asia & Pacific | Asia & Pacific |
| 8. Southeast Asia Tobacco Control Alliance | Asia & Pacific |
| 9. The Building and Wood Workers’ International Asia-Pacific | Asia & Pacific |
| 10. Focus on the Global South | Philippines, Thailand, India, Cambodia, Laos |
| 11. Australian Fair Trade and Investment Network | Australia |
| 12. Australian Services Union | Australia |
| 13. The Grail Global Justice Network | Australia |
| 14. People’s Health Movement Australia
15. Public Health Association of Australia 16. New South Wales Nurses & Midwives’ Association |
Australia
Australia Australia |
| 17. Cambodian Grassroots Cross-sector Network | Cambodia |
| 18. SILAKA | Cambodia |
| 19. Social Action for Change | Cambodia |
| 20. The Messenger Band | Cambodia |
| 21. Women’s Network for Unity | Cambodia |
| 22. Worker’s Information Center | Cambodia |
| 23. All India Drug Action Network | India |
| 24. Alliance for Sustainable and Holistic Agriculture (ASHA) | India |
| 25. Delhi Network of Positive People | India |
| 26. Food Sovereignty Alliance | India |
| 27. Forum Against FTAs | India |
| 28. India FDI Watch | India |
| 29. Indian Social Action Forum – INSAF | India |
| 30. Initiative for Health & Equity in Society | India |
| 31. International Treatment Preparedness Coalition (ITPC) -South Asia | India |
| 32. Sunray Harvesters | India |
| 33. Thanal | India |
| 34. The Centre for Internet and Society | India |
| 35. Toxics Watch Alliance (TWA) | India |
| 36. Ahimsa Society | Indonesia |
| 37. Aliansi Masyarakat Sipil Untuk Perempuan Politik (ANSIPOL) | Indonesia |
| 38. Aliansi Nasional Bhineka Tunggal Ika (ANBTI) | Indonesia |
| 39. Aliansi Petani Indonesia | Indonesia |
| 40. Bina Desa | Indonesia |
| 41. Creata | Indonesia |
| 42. Forhati Jatim | Indonesia |
| 43. Himpunan Wanita Disabilitas Indonesia (HWDI) | Indonesia |
| 44. IHCS (Indonesian Human Rights Committee for Social Justice) | Indonesia |
| 45. Indonesia AIDS Coalition | Indonesia |
| 46. Indonesia for Global Justice (IGJ) | Indonesia |
| 47. Jaringan Advokasi Tambang (JATAM) | Indonesia |
| 48. Koalisi Rakyat Untuk Hak Atas Air (KRuHA) | Indonesia |
| 49. Konsorsium Pembaruan Agraria (KPA) | Indonesia |
| 50. Maju Perempuan Indonesia (MPI) | Indonesia |
| 51. Pengembangan Inisiatif dan Advokasi Rakyat (PIAR) NTT | Indonesia |
| 52. Pengurus Wilayah Lembaga Kajian dan Pengembangan Sumberdaya Manusia Nahdlatul Ulama (PW LAKPESDAM NU DKI) | Indonesia
Indonesia |
| 53. Sawit Watch | Indonesia |
| 54. Serikat Petani Indonesia (SPI) (LVC Indonesia) | Indonesia |
| 55. Solidaritas Perempuan (Women’s Solidarity for Human Rights) | Indonesia |
| 56. Southeast Asia Freedom of Expression Network | Indonesia |
| 57. Yogya Interfaith Forum | Indonesia |
| 58. Japan Family Farmers Movement | Japan |
| 59. Pacific Asia Resource Center (PARC) | Japan |
| 60. Jaringan Rakyat Tertindas (JERIT) | Malaysia |
| 61. Malaysian Council for Tobacco Control (MCTC) | Malaysia |
| 62. Malaysian Women’s Action for Tobacco Control & Health (MyWATCH) | Malaysia |
| 63. Penang Research Center in Socio Economy (PReCISE) | Malaysia |
| 64. Persatuan Kesedaran Komuniti Selangor (Empower Malaysia) | Malaysia |
| 65. Positive Malaysian Treatment Access & Advocacy Group (MTAAG+) | Malaysia |
| 66. Primary Care Doctors Organisation Malaysia (PCDOM) | Malaysia |
| 67. NGO Gender Group | Myanmar |
| 68. Glocal Solutions Ltd | New Zealand |
| 69. Doctors for Healthy Trade | New Zealand |
| 70. It’s Our Future Aotearoa New Zealand | New Zealand |
| 71. MANA Movement of the People | New Zealand |
| 72. New Zealand Council of Trade Unions | New Zealand |
| 73. New Zealand Public Service Association | New Zealand |
| 74. New Zealand Tertiary Education Union | New Zealand |
| 75. Ngai Tai Iwi Authority | New Zealand |
| 76. Public Health Association
77. New Zealand Public Service Association |
New Zealand
New Zealand |
| 78. Alyansa Tigil MIna (Alliance Against Mining) | Philippines |
| 79. GABRIELA Alliance of Filipino Women | Philippines |
| 80. IBON Foundation | Philippines |
| 81. Initiatives for Dialogue and Empowerment through Alternative Legal Services (IDEALS) | Philippines |
| 82. Women’s Legal and Human Rights Bureau (WLB), Inc. | Philippines |
| 83. Association of Physicians for Humanism | Republic of Korea |
| 84. IPLeft | Republic of Korea |
| 85. Knowledge Commune | Republic of Korea |
| 86. Korean Federation of Medical Groups for Health Rights, KFHR | Republic of Korea |
| 87. Korean Pharmacists for Democratic Society, KPDS | Republic of Korea |
| 88. Trade & Democracy Institute | Republic of Korea |
| 89. Trade Commission of MINBYUN-Lawyers for a Democratic Society | Republic of Korea |
| 90. Assembly of the Poor | Thailand |
| 91. Foundation for Women | Thailand |
| 92. FTA Watch | Thailand |
| 93. Indigenous Women’s Network of Thailand | Thailand |
| 94. Thai Poor Act | Thailand |
| 95. Vietnam Network of People living with HIV | Vietnam |
| Individual Signatories | Country | ||
| 1. Andi Yuliani Paris | Indonesia | ||
| 2. Athea Sarastiani | Indonesia | ||
| 3. Chairunnisa Yusuf | Indonesia | ||
| 4. Hendrik Siregar | Indonesia | ||
| 5. Ida Fauziyah | Indonesia | ||
| 6. Indah Suksmaningsih | Indonesia | ||
| 7. Irma Suryani Chaniago | Indonesia | ||
| 8. Irmawaty Habie | Indonesia | ||
| 9. Lena Maryana Mukti | Indonesia | ||
| 10. Luluk Hamidah | Indonesia | ||
| 11. Maeda Yoppy | Indonesia | ||
| 12. Maria Goreti | Indonesia | ||
| 13. Maulani A Rotinsulu | Indonesia | ||
| 14. Melani Leimena Suharli | Indonesia | ||
| 15. Nia Sjarifudin Nidalia Djohansyah | Indonesia | ||
| 16. Nihayatul Wafiroh | Indonesia | ||
| 17. Ratu Dian Hatifah | Indonesia | ||
| 18. Sarah Lery Mboeik | Indonesia | ||
| 19. Sulistyowati Irianto | Indonesia | ||
| 20. Sumarjati Arjoso | Indonesia | ||
| 21. Tumbu Saraswati | Indonesia | ||
| 22. Biswajit Dhar | India | ||
| 23. Gajanan Wakankar | India | ||
| 24. Vu Ngoc Binh | |||
