GOP CONTINUES TO PUSH FOR BIT

UNCLAS SECTION 01 OF 03 ISLAMABAD 000140 SIPDIS E.O. 12958: N/A TAGS: EINV EFIN ETRD PGOV PREL PG PK SUBJECT: GOP CONTINUES TO PUSH FOR BIT REF: 2008 ISLAMABAD 3933 ¶1. (SBU) Summary. Minister Saleem Mandviwalla, Chairman of the GOP Board of Investment, insists the GOP has the political will to finalize the U.S.-Pakistan Bilateral Investment Treaty (BIT) and that President Zardari and Prime Minister Gilani had recently agreed the BIT should go forward as soon as negotiations can be arranged. Mandviwalla gave Post an internal GOP document characterizing U.S.-GOP differences on the BIT, which should be helpful in formulating USG responses. See below for relevant portions of the text. End summary. -------------- A BIT ABOUT THE BIT -------------- ¶2. (SBU) ComCouns and EconOff met January 15 with Minister Saleem Mandviwalla, Chairman of the GOP Board of Investment,and Board of Investment Director Raania Ahsan. Mandviwalla, who took office in October 2008 and previously worked in the private sector, was very eager to discuss potential for U.S.-Pakistani business partnerships and private U.S. investment in Pakistan. He agreed that finalizing a BIT would be an important step towards increasing bilateral business exchanges. ¶3. (SBU) Mandviwalla said he had spoken recently with President Zardari and Prime Minister Gilani about a BIT, and that they all agreed it should be concluded. He gave Econoff an internal GOP note regarding the five points on which the GOP and U.S. had not reached agreement when BIT talks stalled in October 2006. ¶4. (SBU) Mandviwalla also expressed concern that the Reconstruction Opportunity Zones (ROZs) will not attract investors without extensive incentives because of security concerns and lenders who presently are hesitant to extend credit. -------------- A NOTABLE NOTE -------------- ¶5. (SBU) The GOP document comments on five points on which the U.S. and GOP have disagreed during previous BIT negotiations (reftel). The verbatim text regarding these disputes is as follows: Begin text. Note on Bilateral Investment Treaty Between Pakistan and USA...Five Outstanding Issues under Negotiation: --Transparency provisions under Article 11(2) and Article 20(6),briefly, requiring the publication in advance of any proposed or to be adopted laws, rules, regulations, etc., regarding the matters pertaining to the Treaty and similarly any regulation of general application relating to the 
financial services that is proposed to be adopted. Proposal: Transparency standards are practically difficult to achieve, e.g. with SROs (Statutory Regulatory Orders). Therefore, BIT language should not be mandatory but discretionary. There is substantial agreement: USA recognises the genuine difficulties with Ordinances and SROs. Language of BIT should be exhortatory or it should be clarified that transparency requirements must be interpreted in the context of the state of development of each party. --Scope of Treaty: The language of the draft is considered vague and ambiguous and described as "open ended." With reference to Article 2 of the draft, the level of protection provided under the treaty would be far greater than that required under International Law as illustrated by the right to claim a denial of justice for example. Under law, the investor is required to meet a higher threshold of denial of justice to show "obvious futility." Furthermore, the retroactive effect of the agreement would provide protection to all investments and disputes including those that existed prior to the coming into effect of this treaty. Pakistan insists that the agreement should be prospective in effect. ISLAMABAD 00000140 002 OF 003 Proposal: GOP is of the view that expressions should be clearly and concisely defined and meanings stated explicitly so that a future BIT tribunal does not interpret the words in a manner contrary to what was intended by Pakistan. Requirements under the treaty should be at parity with requirements under public international law. The agreement by the USA that the BIT shall not have retro-active application needs to be clarified in the Shared Understanding as do concerns pertaining to a number of provisions that create ambiguity. --Claim on behalf of an enterprise: Article 24(1)(b) allows a US investor to file a claim on behalf of the entire enterprise regardless of the proportion of his share. Under international law, only direct loss is recoverable and a person cannot assert claim against his or her own State and likewise BIT protection conferred on a US citizen or entity should not extend to citizens or entities of third countries or even of Pakistan (unless the entity is a juridical person, majority owned or controlled by a US citizen or entity). Proposal: Under international law, only a direct loss is recoverable and a person cannot assert claim against his or her own State and likewise BIT protection conferred on a US citizen or entity should not extend to citizens or entities of third countries or even of Pakistan (unless the entity is a juridical person, majority owned or controlled by a US citizen or entity). There is substantial agreement on this issue as Pakistan's position is consistent with the USA's interpretation of like provisions in NAFTA as submitted by the USA in GAMI Investments, Inc. v. Mexico. Pakistan is awaiting an amendment to the draft of the Shared Understanding from the USA. --Investment Agreement: Article 24(1) requires the host-state to observe any private obligations it has entered into in regard to covered investments. Such a provision makes a contractual or obligatory breach simultaneously a breach of the investment treaty. Thus, failure by an investor (whether corporate or individual) that is a party to an investment will result in a complaint against the country, in addition to any complaints regarding the contractual breach. The result of this dual obligation is that the government, in addition to the enterprise, is held responsible for the insolvency of the multinational partnerships and which will inevitably result in mega million dollar awards that the GOP will not be able to defend or afford. Proposal: Pakistan does not accept that every breach of contract by the State or its Agency should be a breach of the BIT. Pakistan accepts responsibility for its sovereign acts in the exercise of sovereign power. Otherwise, contractual breaches should be remedied through the contractual dispute resolution mechanism provided in the investment agreement. --Additional Rules regarding the arbitration procedure contained in Section B of the draft treaty: whereby Pakistan has maintained its old position that the additional rules are superfluous in view of GOP's acceptance of international arbitration. Proposal: USA should respond to Pakistan's queries and comments. ICSID remedy should be sole remedy unless barred by ICSID itself, as in the case of dual nationals and pre-establishment claims. End text. ¶6. (SBU) The Note also contains the following comments on "Other Substantive Issues:" Begin text. -- Pakistan and its Agencies face serious capacity constraints in complying with the standards imposed by the BIT. -- More favorable provisions of the US BIT may be incorporated into other BITs through an MFN clause in those other BITs. --Shared Understanding: As public international law is in flux, therefore it is imperative that the parties' intentions be clearly specified and Shared Understanding be stated to be an agreement as contemplated under Article 31(3) of the Vienna Convention on the Law of Treaties 1969 to ensure that ISLAMABAD 00000140 003 OF 003 it prevails over the BIT. End text. ¶7. (SBU) Comment: With many new faces in the GOP since the last round of BIT negotiations, it is not clear who will actually be in charge of the negotiations. The Board of Investment has always been involved in the process, but the lead was taken over by then Attorney General Makhdoom Khan in ¶2006. Mandviwalla's enthusiasm marks him a clear BIT advocate and keeping him in the loop will help the U.S. move negotiations forward. The relatively new Minster of Investment, Waqar Ahmad Khan, also strongly favors concluding the BIT. ¶8. (SBU) Mandviwalla may not have been fully aware of critical language regarding the U.S. However, the Note sets out GOP positions on the BIT quite clearly and may be helpful to U.S. negotiators. PATTERSON