The weakening of BIT protection is bad for business

Bilateral Investment Treaties (BITs) are an important safeguard for investors.

Investors sometimes forget that the converse side of lucrative returns for investing in overseas territories is that host governments sometimes seize their assets. Expropriation, confiscation and nationalisation of assets, often referred to as resource nationalism, is one of the most significant challenges confronting companies operating in developing markets.

Bilateral Investment Treaties (BITs) have for many years acted as a safeguard for investors.  These agreements between states are designed to provide investors with protection in the event of government action or inaction that makes investments unviable. The United Nations estimates BITs cover approximately two-thirds of global FDI and one-fifth of possible bilateral investment relationships.

Today there are over 2,800 BITs in existence. At the heyday of such agreements in 1995, four new agreements were signed every week. By 2012 this figure had declined to a rate of one per week. As it is theoretically possible for over 40,000 BITs to be in existence when one considers that there are around 200 countries in the world, the reason for the decline is more to do with the efficacy of BITs in the presence investment environment, rather than an exhausting of the possibilities.

The appeal of signing BITs has decreased amongst sovereign governments because the stability they bring to the investment environment is perceived to thwart their room for independent action. For foreign investors the appeal of BITs is that they generally offer arbitration under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, better known as the ICSID, the dispute resolution arm of the World Bank. ICSID arbitration has become an increasingly popular and effective forum for dispute resolution, with victorious investors being able, for example, to reclaim assets seized by a host nation overseas. The number of arbitrations against host countries has grown enormously in recent years. In 1997 the number of known Investor v. State disputes in arbitration was seven. By 2012 this number had reached fifty-eight.

South American countries, assisted by the outstanding efforts of Venezuela, which nationalised over a thousand companies during Hugo Chavez’s tenure as president, account for 30 percent of cases registered with ICSID. As one might expect, the developing world accounts for the majority of cases lodged with ICSID, as governments in Russia, Uzbekistan, Bolivia and Uganda have resorted to the outright expropriation of assets to seize a greater share of returns from the exploitation of their natural resources. In contrast, although just six percent of cases concern North America and western European countries, these governments have proved themselves as adept as their counterparts in the developing world at taking the money of foreign investors. In 2012 Canada was sued by a petroleum company for USD250 million, challenging a moratorium on fracking enacted by the government of Quebec.

The ICSID has become a victim of its own success. Aggrieved investors, who have received recompense through the system, believe it performs well. Host nations who have been instructed to honour claims have been less pleased.  There is a widely held view among governments that BITs are too investor friendly, and place too much restriction on a government’s ability to make changes to the legal or regulatory changes that might be in the broader public interest. Governments are citing this apparent bias and lack of freedom as their reasoning not to renew individual treaties. In 2009 the South African government announced that it would not be renewing a treaty with the Belgo-Luxembourg Economic Union when it expired in 2013, and would be allowing all other BITs with European Union states to lapse as well.  

As fewer new BITs are signed and some of those already in existence are permitted to lapse, we will see a broad deterioration in the investment landscape. Future agreements are likely to offer host governments more flexibility to make legal and regulatory changes, which will of course be to the detriment of investors. We are also likely to see less recourse, in treaties which are new or renewed, to robust and independent arbitration forums such as ICSID.

Careful due diligence and the adoption of effective risk management strategies will become even more crucial as protection offered by BITs declines. For those risks that cannot be managed can often be insured. The credit & political risk insurance market continues to evolve and for well structured transactions can offers a final safety net that neutralises many of the more pernicious aspects of country risk.

Dr Elizabeth Stephens is JLT Head of Credit & Political Risk Advisory

Washington, DC – 12 October 2013: (L-R) Federal Reserve Chairman Ben Bernanke of the U.S., Finance Minister Luc Frieden of Luxembourg, IMF Managing Director Christine Lagarde and Finance Minister Tharman Shanmugaratnam of Singapore attend an annual IMF Wo

JLT Head of Credit & Political Risk Advisory

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“I felt very lonely”: addressing the untold story of isolation among young mothers

With one in five young mothers lonely “all the time”, it’s time for employers and services to step up.

“Despite having my child with me all the time, I felt very lonely,” says Laura Davies. A member of an advisory panel for the Young Women’s Trust, she had her son age 20. Now, with a new report suggesting that one in five young mums “feels lonely all the time”, she’s sharing her story.

Polling commissioned by the Young Women’s Trust has highlighted the isolation that young motherhood can bring. Of course, getting out and about the same as you did before is never easy once there’s a young child in the picture. For young mothers, however, the situation can be particularly difficult.

According to the report, over a quarter of young mothers leave the house just once a week or less, with some leaving just once a month.

Aside from all the usual challenges – like wrestling a colicky infant into their jacket, or pumping milk for the trip with one hand while making sure no-one is crawling into anything dangerous with the other – young mothers are more likely to suffer from a lack of support network, or to lack the confidence to approach mother-baby groups and other organisations designed to help. In fact, some 68 per cent of young mothers said they had felt unwelcome in a parent and toddler group.

Davies paints what research suggests is a common picture.

“Motherhood had alienated me from my past. While all my friends were off forging a future for themselves, I was under a mountain of baby clothes trying to navigate my new life. Our schedules were different and it became hard to find the time.”

“No one ever tells you that when you have a child you will feel an overwhelming sense of love that you cannot describe, but also an overwhelming sense of loneliness when you realise that your life won’t be the same again.

More than half of 16 to 24-year-olds surveyed said that they felt lonelier since becoming a mother, with more than two-thirds saying they had fewer friends than before. Yet making new friends can be hard, too, especially given the judgement young mothers can face. In fact, 73 per cent of young mothers polled said they’d experienced rudeness or unpleasant behaviour when out with their children in public.

As Davies puts it, “Trying to find mum friends when your self-confidence is at rock bottom is daunting. I found it easier to reach out for support online than meet people face to face. Knowing they couldn’t judge me on my age gave me comfort.”

While online support can help, however, loneliness can still become a problem without friends to visit or a workplace to go to. Many young mothers said they would be pleased to go back to work – and would prefer to earn money rather than rely on benefits. After all, typing some invoices, or getting back on the tills, doesn’t just mean a paycheck – it’s also a change to speak to someone old enough to understand the words “type”, “invoice” and “till”.

As Young Women’s Trust chief executive Dr Carole Easton explains, “More support is needed for young mothers who want to work. This could include mentoring to help ease women’s move back into education or employment.”

But mothers going back to work don’t only have to grapple with childcare arrangements, time management and their own self-confidence – they also have to negotiate with employers. Although the 2003 Employment Act introduced the right for parents of young children to apply to work flexibly, there is no obligation for their employer to agree. (Even though 83 per cent of women surveyed by the Young Women’s Trust said flexible hours would help them find secure work, 26 per cent said they had had a request turned down.)

Dr Easton concludes: “The report recommends access to affordable childcare, better support for young women at job centres and advertising jobs on a flexible, part-time or job share basis by default.”

Stephanie Boland is digital assistant at the New Statesman. She tweets at @stephanieboland