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

Photo: Wikimedia Commons and Getty
Show Hide image

“Rise like lions after slumber”: why do Jeremy Corbyn and co keep reciting a 19th century poem?

How a passage from Percy Shelley’s The Masque of Anarchy became Labour’s battle cry.

“If I may, I’d like to quote one of my favourite poets, Percy Bysshe Shelley,” Jeremy Corbyn politely suggested to a huge Glastonbury audience. The crowd of nearly 120,000 – more accustomed to the boom of headline acts than elderly men reading out romantic poetry – roared its approval.

“Rise like lions after slumber, in unvanquishable number!” he rumbled. “Shake your chains to earth like dew, which in sleep had fallen on you: ye are many – they are few!”

The Labour leader told the crowd that this was his favourite line. It’s the final stanza of Shelley’s 1819 poem, The Masque of Anarchy, written in response to the Peterloo Massacre earlier that year, when a cavalry charged into a non-violent protest for the vote.

Though it was not published in Shelley’s lifetime – it was first released in 1832 – the poem has become a rallying cry for peaceful resistance. It has been recited at uprisings throughout history, from Tiananmen Square to Tahrir Square.

Corbyn’s turn on the Pyramid Stage was not the first time he’s used it. He recited the stanza during his closing speech on election night in Islington, and the audience began quoting along with him:


It was also used by comedian and celebrity Labour supporter Steve Coogan at a rally in Birmingham:


During Corbyn’s second leadership campaign, his ally Chris Williamson MP told a public meeting that this part of the poem should be “our battle cry” . He delivered on this the following year by reciting the poem to me in his Renault Clio while out on the campaign trail in England’s most marginal constituency (which he ended up winning).

You can hear it echoed in Labour’s campaign slogan: “For the many, not the few”.

Corbyn’s election guru, James Schneider, told the Standard at the time that “it would be a stretch” to say the slogan was taken directly from the poem, but that “Jeremy does know Shelley”. Yet even he took the time to recite the whole stanza down the phone to the journalist who was asking.

Corbyn is famously a fan of the novelist and author Ben Okri. The pair did a literary night at the Royal Festival Hall in London’s Southbank in July last year, in which the Shelley lines came up at the end of the event, as reported by Katy Balls over at the Spectator. Okri announced that he wanted to recite them, telling Corbyn and the audience:

“I want to read five lines of Shelley . . . I think there are some poems that ought to be, like you know those rock concerts, and the musician starts to sing and the whole audience knows the lines? And sings along with them? Well this ought to be one of those, and I’d like to propose that we somehow make it so that anytime someone starts with the word ‘Rise’, you know exactly what the lines are going to be.”

Which, of course, is exactly what Corbyn did at Glastonbury.

“We have this huge, abundant literature on the left and it’s hardly known”

The former left-wing Labour leader Michael Foot loved the poem and recited the lines at demos, and Stop the War – the campaign group Corbyn supports and chaired – took a line from it as the title of its 2014 film about anti-Iraq War action, We Are Many.

So why does the Labour left rally around some lines of poetry written nearly 200 years ago?

“It’s a really appropriate poem,” says Jacqueline Mulhallen, author of Percy Bysshe Shelley: Poet and Revolutionary (Pluto, 2015). “Shelley wrote a poem about the fact that these people were protesting about a minority taking the wealth from the majority, and the majority shouldn’t allow it to happen.

“He was writing at the beginning of industrial capitalism, and protested then, and 200 years later, we’ve still got the same situation: food banks, homeless people, Grenfell Tower, more debts – that’s why it has great resonance when Corbyn quotes it.”

“Shelley said there’s loads of us, it’s just a little corrupt crew – well, of course that applies now”

Michael Rosen, the poet and former Children’s Laureate, also describes the poignancy of Shelley’s words in Corbyn’s campaign. “You’ve got a sense of continuity,” he tells me. “Shelley was campaigning for freedom, for free thought, for free love. He was campaigning for a fairer society; it was a time of incredible oppression. He said there’s loads of us, it’s just a little corrupt crew – well, of course that applies now.”

Rosen celebrates the poem’s place in the Labour movement. “When any of us from the left quote people from the past, we’re saying that we have traditions... We’re making a claim on our authenticity,” he says. “Just in the same way as the right and the establishment draw on the pageantry of the Queen, or talk about Parliament or quote Winston Churchill. These are our traditions, which are different. You hardly ever come across it, either in newspapers or history lessons or anything.”

Rosen, a friend of Corbyn’s, believes his speech brings a left-wing tradition alive that is often forgotten. “We have this huge, abundant literature on the left and it’s hardly known. What’s great about Jeremy calling on it is to remind us . . . This stuff sits in old museums and libraries, gathering dust until it’s made active and live again. It’s made active and live particularly when being used in an environment like that [Glastonbury]. He was making the words come alive.”

Read more: 7 things we learned from Jeremy Corbyn on The One Show

The Masque of Anarchy’s final stanza has been recited at high-profile protests throughout history – including at the 20,000 garment workers’ strike in 1909 in New York, the student-led demo in China’s Tiananmen Square in 1989, anti-Poll Tax protests, and at Tahrir Square in Egypt during the Arab Spring, according to Mulhallen. The way civilians were treated by the authorities in many of these protests echoes what happened at Peterloo.

So does Corbyn’s penchant for the verse mark a similar radical turning-point in our history? “It’s indicating a change in attitude that people should start thinking about redistributing the wealth again,” says Mulhallen. “People are becoming much more aware.”

Anoosh Chakelian is senior writer at the New Statesman.

0800 7318496