ASEAN Regional Forum on Investment (21-22 September, Manila)

Time to revisit Investment policies say ASEAN campaigners
22 စက်တင်ဘာလ 2011

Between 20 and 21 September 2011, 40 ASEAN campaigners and experts met in Manila to share knowledge and experiences, articulate common strategies and discuss alternatives to the current investment regime. 

The presentations exposed how International investment agreements (IIAs), such as Free Trade Agreements and Bilateral Investment Treaties (BITs), pose a threat to economic, social, cultural and environmental rights, as well as to democracy and people's sovereignty.


You can downalod the presentations by clicking on the name of the speakers

21 September





Introduction: Objectives of the Forum  (Cecilia Olivet, TNI)


FDI trends in ASEAN

Dr. Lawan Thanadsillapakul, Sukhothai Thammathirat Open University, Thailand (presentation 1)



Looking at global and regional investment agreements


Unpacking the international investment regime


* Busting the myths about investment treaties

Nathalie Bernasconi, IISD, Switzerland (presentation 2)


* Investment treaties and the constraints on policy space: the relevant host state obligations


* Investor-to-state arbitration: Bypassing national court systems + ASEAN cases as examples


Open Forum





Panel discussion on ASEAN Investment policies


* ASEAN investment policy (ACIA)

Dr. Lawan Thanadsillapakul, Sukhothai Thammathirat Open University, Thailand

(presentation 3)




National Investment regimes in ASEAN


* Quick scan of national policies on investment in ASEAN countries (including instruments to attract FDI at national level)

Herjuno Ndaru Kinasih, IGJ, Indonesia (presentation 4)

Charles Santiago, MSN, Malaysia

Elpidio Peria, Biodiversity, Innovation, Trade and Society (BITS) Policy Center, Philippines (presentation 5)

Nguyen Ngoc Thang, Vietnam Chamber of Commerce and Industry (presentation 6)

Kannikar Kijtiwatchakul, FTA watch, Thailand (presentation 7)

Ratana PEN, Heinrich Boell Foundation, Cambodia (presentation 8)

Open Forum



Impacts of FDI on:

  • Food & Water (Indonesia)

Taufiqul Mujib, Indonesian Human Rights Committee for Social Justice (IHCS), Indonesia  (presentation 9)

  • Mining  (Philippines)

Judy Pasimio, Legal Rights and Natural Resources Center- Friends of the Earth, Philippines (presentation 10)

  • Sugar cane (Cambodia)

Eang Vuthy, Bridges Across Borders, Cambodia (presentation 11)

  • Agrofuels (Philippines)

Beverly Besmanos, AFRIM, Philippines (presentation 12)

Open Forum


22 September


State of play investment chapters in FTAs

Changes in EU competence and EU FTAs

Nathalie Bernasconi, IISD, Switzerland

Open Forum



Coffee Break



Investment chapters in EU FTAs negotiations: the case of Malaysia

Charles Santiago, MSN, Malaysia

IPR and BITs

Elpidio Peria, Biodiversity, Innovation, Trade and Society (BITS) Policy Center, Philippines  (presentation 13)

IPR and Investment: Access to Medicines

Kanikaar Kijtiwatchakul, FTA Watch, Thailand (presentation 14)

Open Forum







The presentations exposed how International investment agreements (IIAs), such as Free Trade Agreements and Bilateral Investment Treaties (BITs), pose a threat to economic, social, cultural and environmental rights, as well as to democracy and people's sovereignty.

Nathalie Bernasconi, from IISD in Switzerland, provided insights into the legal aspects and dangerous clauses of international investment agreements (IIAs) and warned campaigners that IIAs undermine the right of governments to regulate financial speculation and in favour of public interest, decent work, human rights, right to health and environmental sustainability. She also warned that IIAs give transnational corporations extraordinary rights without any obligations, and highlighted in particular the right of companies to sue governments at secretive and biased international arbitration tribunals when these governments try to regulate in favour of its citizens and the environment.

Dr. Lawan Thanadsillapakul, Professor of Law Sukhothai Thammathirat Open University in Bangkok, provided a through account of Foreign Direct Investment trends in ASEAN and analysis about the newly signed ASEAN investment policy (ACIA). ACIA is a comprehensive Investment Agreement intended to create an investment regime in the region that is "comparable to international best practices" in order to increase intra-ASEAN investments and enhance ASEAN's competitiveness in attracting inward investments into ASEAN. She presented a list of National Incentives and Regional incentives that ASEAN countries have implemented over the last decades to promote FDI. She also identified the China, Indonesia, Malaysia and Thailand as the major sources of intra-Asia FDI and the key sectors which are mainly attracting foreign investment: Agriculture, Forestry, Fishery, Mineral and Industrial Production. Dr. Lawan concluded that there is a need to strengthen regional cooperation rather than competition and go back to an investment regime that was based on rule of law. She also warned about the problems arising from IIAs that give too many rights to investors and supported the idea of rolling back international investment regime.

Campaigners from Indonesia, Malaysia, Philippines, Vietnam, Thailand and Cambodia provided a quick scan of national policies on investment in ASEAN countries. The presentations highlighted the considerable reforms that ASEAN countries have undergone in terms of investment policies, causing a shift from being generally restrictive on participation of foreign investors in key sectors of society to a more liberal regime that encourages and gives incentives for foreign investments to penetrate sensitive sectors such as extractives industries (mining), public services (water and electricity) and agriculture. While there are differences in the liberalization process of investments in each country, all presentations stated the trend towards a reliance on attraction of FDI as the solution to development as well as the believe by ASEAN countries that Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs) are the most important tools to attract FDI.

One of the objectives of the forum was to analyse, based on evidence from the ground, the claim by ASEAN governments that FDI is a tool for development. Presentations of impacts of FDI in Indonesia (Food and Water sector), Philippines (Mining and Agrofuels sector) and Cambodia (Sugar cane sector) provided ample evidence of the devastating effects that foreign transnational corporations are having on communities and the environment. In the case of Indonesia, the government opening of the agriculture, mining and privatisation of drinking water is undermining the right to food and water of Indonesian people.

In the case of Philippines, mining has been one of the sectors were foreign companies were granted the possibility to have 100% ownership and control. Currently, more than 81,000 hectares are dedicated to mining and the aggregate amount of $3.835 billion has been invested in the sector over the last six years. Contrary to the usual government claims of the positive impacts of FDI on jobs and the economy, mining has almost non-existent forward linkages with the Philippine economy. Most mining operations involve extraction and immediate exportation of minerals for processing abroad. In fact, 85% to 90% of mining gross production value is export value of minerals. Also, job creation was only at 158,000 in 2008, only 184,000 in 2011 in 0.5% of the country's labour force. On the average, from 2000 to 2009, the mining industry accounted for no more than 0.91% of Philippine GDP. So, not only mining has not contributed towards economic development, but is has negative impacts, such as access to water (32 liters of fresh water is needed per ounce of gold) and destruction of the environment (In 2006-07, forest cover has gone down by about 20%-21%).

In the case of Cambodia, the expansion of sugar production covers at least 80,000 hectares of land. Cambodian government has granted land concessions for 99 years for sugar production to foreign investors causing widespread and serious human rights violations such as forced evictions, food insecurity and pollution. Companies from Thailand and UK are among the foreign investors acting in Cambodia.

Finally, participants discussed the new EU investment policy and EU FTAs. Nathalie Brnasconi presented the changes in competences regarding investment policies in the European Union and the implications for EU-ASEAN FTAs. She explained that since 2009, with the entry into force of the Lisbon Treaty, the EU Member States do not longer have the competence to negotiate investment protection. It is now the European Commission, on behalf of the Member States, that negotiate investment protection. When EU started negotiations for FTAs with ASEAN countries, these did not include investment protection. But, at the moment, the EC will include negotiation for investment protection in the FTAs. So, it's a different game. Now, investment becomes part of the negotiating package. Currently, the EU is pursuing negotiations for FTAs which include a chapter on investment protection with Singapore and Malaysia. Indonesia, Thailand and Philippines have indicated willingness to also join negotiations in the coming years.

Lastly, the interrelations between investment protection policies, as currently embedded in BITs and FTAs, with the issue intellectual property rights and access to medicine were highlighted. Kannikar Kijtiwatchakul, an expert on Intellectual property rights and member of the campaign to essential medicine, highlighted that up to now, countries have been able to produce generic medicines and release compulsory licenses using TRIPs flexibilities which has helped to reduce price of medicine massively. However, the EU is demanding TRIP+ obligations so if Free Trade Agreements with ASEAN countries are signed, pharmaceutical companies could sue countries if governments decide to override a medicine patent, control and regulate the price of medicine or regulate in relation to health policies. The recommendations in this regard included: to remove Intellectual Property from the definition of investment, remove the Investor-state dispute settlement mechanism, and exclude data exclusivity and IPR enforcement measures.

At the end of the 2 day discussions, key conclusions emerged from the presentations:

a) the trend in ASEAN countries is liberalisation and higher protection of investment, particularly by signing Investment Agreements such as BITs, FTAs and through ACIA.

b) So far, the impact of FDI has been very destructive in certain sectors and will get worst if foreign investors are allowed to take over sensitive sectors

c) There is no evidence that signing IIAs has contributed to attracting FDI

d) ASEAN governments should consider implementing strategies that would attract quality investment that contributes to job creation instead of an indiscriminate opening of sensitive sectors that should be protected, such as natural resources and public services.