International Investment Agreements and the Escalation of Private Power in the Global Agri-Food System
Using food regime analysis, this paper critically analyzes how corporate actors amass, secure and apply power in the global agrifood system through International Investment Agreements (IIAs). IIAs are a key enabler of increasing corporate power in the agrifood system. We focus on three sets of investment provisions in IIAs: (a) the stringent enforceability mechanism of the investor-state dispute settlement (ISDS) system, (b) the expansion of the concept of expropriation, and (c) limitations or prohibitions on host countries to impose performance requirements on foreign investors. We argue that these provisions compromise fairness in the international economic system. Attracted by promises of technology transfer, economic growth and employment, host states often prioritize policies that favor foreign investors even if such policies compromise domestic policy space. We provide analysis and examples of escalating corporate power at different stages of the industrial and transgenic model of agriculture.
KeywordsFairness International Investment Agreements Corporate food regime
Bilateral Investment Treaty
EU-Canada Comprehensive Economic and Trade Agreement
Comprehensive and Progressive Agreement for Trans-Pacific Partnership
Food and Agriculture Organization of the United Nations
Foreign direct investment
Free Trade Agreement
General Agreement on Tariffs and Trade
International Center for the Settlement of Investment Disputes
International Investment Agreement
Investor-state dispute settlement
North American Free Trade Agreement
Trade and Investment Related Measures
Trade-Related Aspects of Intellectual Property Rights
United Nations Commission on International Trade Law
United Nations Conference on Trade and Development
United States of America
United States-Mexico-Canada Agreement
World Trade Organization
- Bernasconi-Osterwalder, N., & Smaller, C. (2017). Farmland investments are finding their way to international arbitration. International Institute for Sustainable Development. Accessed February 19, 2019, from https://www.iisd.org/blog/farmland-investments-are-finding-their-way-international-arbitration.
- Broad, R. (2015). Corporate bias in the World Bank Group’s International Centre for settlement of investment disputes: A case study of a global mining corporation suing El Salvador. University of Pennsylvania Journal of International Law,36(4), 851–874.Google Scholar
- CCSI, IIED and IISD. (2018). Agricultural investments under international investment law. Columbia Center on Sustainable Development, International Institute for Environment and Development & International Institute for Sustainable Development. Accessed November 24, 2018, from http://ccsi.columbia.edu/files/2018/10/CCSI-IIED-IISD_Agricultural-Investments-under-IIL.pdf.
- Chang, H. J. (2002). Kicking away the ladder: Development strategy in historical perspective. London: Anthem Press.Google Scholar
- Choudry, A. (2006). Bilateral free trade and investment agreements and the US Corporate Biotech Agenda. A publication of Pesticide Action Network Asia Pacific (PANAP) and People’s Coalition on Food Sovereignty (PCFS) Special Release.Google Scholar
- Correa, C. (2004). Bilateral investment agreements: Agents of new global standards for the protection of intellectual property rights? GRAIN. Accessed February 20, 2019, from https://www.grain.org/article/entries/125-bilateral-investment-agreements-agents-of-new-global-standards-for-the-protection-of-intellectual-property-rights.
- Cotula, L., Vermeulen, S., Leonard, R., & Cotula, J. K. (2009). Land grab or development opportunity? Agricultural investment and international land deals in Africa. London: FAO, IIED and IFAD. Accessed February 20, 2019, from http://www.fao.org/3/a-ak241e.pdf.
- Creswel, J. W. (2009). Research design: Qualitative, quantitative, and mixed methods approaches. Los Angeles: University of Nebraska-Lincoln.Google Scholar
- Damodaran, H. (2016, May 24). GM technology: Compulsory licensing rules withdrawn after outcry from crop research majors. The Indian Express.Google Scholar
- Economy Watch. (2010). Industrial agriculture. Economy Watch, Follow the Money. Accessed February 21, 2019, from http://www.economywatch.com/agriculture/types/industrial.html.
- FAO. (2018). The state of food security and nutrition and the world. Building climate resilience for food security and nutrition. Rome: Food and Agriculture Organization. Accessed February 21, 2019, from http://www.fao.org/3/I9553EN/i9553en.pdf.
- FAO. (2019). Sustainable development goals. Rome: Food and Agriculture Organization. Accessed February 16, 2019, from http://www.fao.org/sustainable-development-goals/goals/goal-2/en/.
- Forbes. (2018). Global 2000. Accessed February 22, 2019, from https://www.forbes.com/global2000/#7128a512335d.
- Friedmann, H. (1987). International regimes of food and agriculture since 1870. In T. Shanin (Ed.), Peasants and peasant societies (pp. 58–276). Oxford: Basil Blackwell.Google Scholar
- Fuchs, D. (2005). Commanding heights? The strength and fragility of business power in global politics. Journal of International Studies,33(3), 771–801.Google Scholar
- Ganguly, S. (1999). The Investor-State Dispute Mechanism (ISDM) and a sovereign’s power to protect public health. Columbia Journal of Transnational Law,38, 113–168.Google Scholar
- GATT. (1947). The General Agreement on Tariffs and Trade. Accessed November 7, 2019 from https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm.
- GATT. (1989). Submission by India, negotiating group on trade-related investment measures, Group of Negotiations on Goods, General Agreement on Tariffs and Trade, Document # MTN.GNG/NG12/W/18.Google Scholar
- Gaukrodger, D., & Gordon, K. (2012). Investor-state dispute settlement: A scoping paper for the investment policy community. 2012/03 OECD Working Papers on International Investment, Paris.Google Scholar
- Genest, A. (2017). Performance requirement prohibitions in international investment law. Ph.D. Dissertation, Faculty of Law, University of Ottawa and Faculty of Law Leiden University.Google Scholar
- Gómez, K. F. (2011). Latin America and ICSID: David versus Goliath? Law and Business Review of the Americas,17(2), 195–230.Google Scholar
- Hart-Landsberg, M. (2011). Korea–US Free Trade Agreement: The Investment Chapter. Accessed November 24, 2018, from https://economicfront.wordpress.com/2011/01/26/korea-us-free-trade-agreement-the-investment-chapter/Reports from the Economic Front.
- ICSID. (2005a). Bernardus Henricus Funnekotter and others v. Republic of Zimbabwe. International Centre for Settlement of Investment Disputes: Case No. ARB/05/6. Accessed February 21, 2019, from https://investmentpolicyhub.unctad.org/ISDS/Details/216.
- ICSID. (2005b). Ioan Micula, Viorel Micula and others v. Romania (I). International Centre for Settlement of Investment Disputes Case No. ARB/05/20. Accessed February 20, 2019, from https://investmentpolicyhub.unctad.org/ISDS/Details/180.
- ICSID. (2017). Agro EcoEnergy Tanzania Limited, Bagamoyo EcoEnergy Limited, EcoDevelopment in Europe AB, EcoEnergy Africa AB v. United Republic of Tanzania, International Centre for Settlement of Investment Disputes Case No. ARB/17/33. Accessed February 20, 2019, from https://investmentpolicyhub.unctad.org/ISDS/Details/846.
- Jha, V., & Bernasconi-Osterwalder, N. (2011). Drafting provisions on the definition of expropriation, performance requirements, and the free movement of capital. Presented at the fifth annual forum of developing country investment negotiators—Investment and Sustainable Development: Developing Country Choices for a Better Future, Kampala, 17–19 October 2011.Google Scholar
- Jones, R. C. (2002). NAFTA Chapter 11 investor-to-state dispute resolution: A shield to be embraced or a sword to be feared? Brigham Young University Law Review,2, 527–559.Google Scholar
- Landau, A. (2005). Analyzing international economic negotiations: Towards a synthesis of approaches. International Negotiation,5(1), 1–19.Google Scholar
- Marlles, J. R. (2007). Public purpose, private losses: Regulatory expropriation and environmental regulation in international investment law. Journal of Transnational Law and Policy,16(2), 275–336.Google Scholar
- McCarthy, J., & Prudham, S. (2004). Neoliberal nature and the nature of neoliberalism. Geoforum,35(3), 257–283.Google Scholar
- McMichael, P. (2004). Global development and the corporate food regime. Institute for Agriculture and Trade Policy. Accessed February 24, 2019, from http://www.iatp.org/documents/global-development-and-the-corporate-foodregime.
- Nguyen, A. P. (2009). Viet Nam: The emergence of a rapidly growing industry. Food and Agriculture Organization of the United Nations. Accessed February 21, 2019, from http://www.fao.org/3/I0588E11.htm.
- Oxfam Australia. (2016). Still banking on land grabs. Australia’s big four banks and Land Grabs. Accessed February 20, 2019, from http://resources.oxfam.org.au/pages/view.php?ref=1734&k=a99ea07b2b.
- Rawls, J. (1971). A theory of justice. Cambridge, MA: Belknap Press of Harvard University Press.Google Scholar
- Samuel, W. (1999). Small island economies in the new international environment. Social and Economic Studies,48(1/2), 155–189.Google Scholar
- Sands, C. (2019). Unpacking the USMCA for congressional approval in 2019. Centre for Strategic & International Studies. Accessed February 7, 2019, from https://www.csis.org/analysis/unpacking-usmca-congressional-approval-2019.
- Thrasher, R., Bevilacqua, D., & Capaldo, J. (2015). Trade agreements and the land: Investment agreements and their potential impacts on land governance. Global Development and Environment Background Paper # 15–01, Medford.Google Scholar
- UNCTAD. (2003). Foreign direct investment and performance requirements: New evidence from selected countries. New York: United Nations Conference on Trade and Development.Google Scholar
- UNCTAD. (2012). Expropriation–UNCTAD series on issues in International Investment Agreements II. UN Doc: UNCTAD/DIAE/IA/2011/7. New York: United Nations Conference on Trade and Development.Google Scholar
- UNCTAD. (2018). Investor–state dispute settlement: Review of developments in 2017. IIA Issues Note Issue 2/2018. New York: United Nations Conference on Trade and Development. Accessed February 22, 2019, from https://investmentpolicyhub.unctad.org/Publications/Details/1188.
- UNCTAD. (2019). Investment dispute settlement navigator. New York: United Nations Conference on Trade and Development. Accessed August 16, 2019, from https://investmentpolicyhub.unctad.org/ISDS.
- USTR. (2018). The President’s 2018 Trade Policy Agenda. United States Trade Representative. Accessed February 14, 2019, from https://ustr.gov/sites/default/files/files/Press/Reports/2018/AR/2018%20Annual%20Report%20I.pdf.
- Van Harten, G., & Malysheuski, P. (2016). Who has benefited financially from investment treaty arbitration? An evaluation of the size and wealth of claimants. Osgoode Legal Studies Research Paper # No. 14/2016.Google Scholar
- Vervest, P., & Feodoroff, T. (2015). Licensed to grab: How international investment rules undermine Agrarian justice. Transnational Institute (TNI). Accessed February 10, 2019, from https://www.tni.org/files/download/licensed_to_grab.pdf.
- WTO. (2019). Regional trade agreements. The World Trade Organization (WTO). Accessed August 31, 2019, from https://www.wto.org/english/tratop_e/region_e/region_e.htm.