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Laws protecting foreign investors

December 30, 2010

Mahnaz Malik
Mahnaz Malik, an award-winning international lawyer gives presentation on the launch ceremony of her book titled International Law Protections for Foreign Investment in Pakistan at the Overseas Investors Chamber of Commerce & Industry. – File Photo

KARACHI: A book titled International Law Protections for Foreign Investment in Pakistan written by Mahnaz Malik was launched at the Overseas Investors Chamber of Commerce & Industry (OICCI) on December 23 2010.

Malik is an award-winning international lawyer actively involved in advising 18 states and four regional groupings of Asian, African and Caribbean states on international investment agreements, including bilateral and regional negotiations, model treaties and foreign investment policies.

The book talks about the importance of Bilateral Investment Treaties (BITs), the strong protections that BITs provide under international law and the critical limits on the regulatory powers of the governments bonded by BITs. Pakistan has 48 BITs of which 26 are in force.

Malik pointed out at the launch, “The unique and powerful feature in BITs is the right given to the foreign investor to enforce these international law guarantees directly against a host state in an international arbitration, without first having to go to local courts.”

There have been cases where foreign investors have sued the government of Pakistan. A total of four known claims have been made against the government. The first known claim under a BIT was registered against Pakistan by a Swiss company Societe Gerale de Surveillance (SGS) in 2001.  The second claim that was by an Italian company, Impregilo, claimed approximately US $ 450 million plus interest for violations of the Italy-Pakistan BIT.

“Third-party companies these days are even willing to buy your claims and share the losses,” Malik pointed out in her presentation.

In her presentation, Malik also gave an example of Uraguay when it introduced an 80 per cent tax on cigarettes, Philip Morris as a foreign investor in Uraguay sued the government of Uraguay and won the case.

Malik emphasized that Pakistan needs to move ahead by improving the language of each treaty and carefully confirm the legal rights it provides to investors, as even subtle differences in language can have implications on the scope of protection offered to foreign investors.

Speaking at the book launch Mr Anisul Hassnain, Secretary Board of Investment praised the launch of the book and said that the Board of Investment would like to interact more with the OICCI.

“The book we are launching today is essential reading for foreign investors as it is an excellent, handy guide of protections offered to foreign investors through Bilateral Investment Treaties,” said Ms Ameena Saiyid President of OICCI at the launch ceremony.