CELAC Declaration repeats calls for a regional investment dispute settlement centre for Latin America and the Caribbean, by José Ángel Rueda

CELAC, the Community of Latin American and Caribbean States (Comunidad de Estados Latinoamericanos y Caribeños in Spanish / Comunidade dos Estados Latino-Americanos e Caribenhos in Portuguese),[1] has called for the creation of an investment dispute settlement centre for Latin America and the Caribbean.

At the end of the first Summit of Heads of State and Government of CELAC in Santiago, Chile on 28 January 2013 the 33 Member States adopted the so-called Santiago Declaration[2] that at para. 68 states as follows, “We recommend the Working Group established by the First Meeting of Ministers of Economy and Finance of CELAC to conduct a study on the feasibility of implementing a Latin American and Caribbean dispute resolution body, devoted to settling disputes in matters of intra- and extra-community investments” (free translation).[3]

The new Latin American inter-governmental organization has assumed an earlier project by UNASUR, the Union of South American Nations, that in 2011 drafted a convention for the establishment of a centre for dispute settlement within South America. CELAC’s Finance Ministers agreed to set up that Working Group during their meeting in Viña del Mar, Chile in December 2012.

We understand, according to press comments published in Latin American media, that the new CELAC initiative is backed by Argentina, Bolivia, Ecuador and Venezuela.[4] As it is widely known, Bolivia, Ecuador and Venezuela have already denounced ICSID Convention[5] while it has been reported that Argentina might be thinking to do the same.

This move took place just one day after the tenure of the first CELAC-EU Summit meeting in the same city under the theme, “Alliance for Sustainable Development: Promoting Investments of Social and Environmental Quality.” That Summit ended with the adoption of another Santiago Declaration[6] that reflects usual North-South tensions:

a) on the one hand, see Latin American and Caribbean position to keep the right to regulate (para. 10 in fine:“We commit to maintain a supportive business environment for investors, recognising nonetheless the right of countries to regulate in order to meet their national policy objectives in accordance with their international commitments and obligations. Likewise, it is also vital that investors comply with national and international law, in particular, inter alia, on taxes, transparency, protection of the environment, social security and labour”); and,

b) on the other hand, see EU’s undisguised interest in legal certainty for foreign investment (para. 45: “…we emphasise the importance of working together to promote investments that support sustainable and sound use of natural resources, environmental care, and economic and social development, and to maintain a favourable investment climate, with legal certainty and respect of national and international law, taking into account the principle of complementarity based on common interests and similar efforts developed at the multilateral level. In this regard, we stress the importance of a stable and transparent regulatory framework that provides certainty to investors, while recognising the sovereign right of States to regulate.”)

[1] CELAC is composed of 33 out of 35 independent States in America: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay and Venezuela (see http://www.parlatino.org/en/proyecto-de-la-celac.html [in Spanish]). The two American countries that do not participate in the CELAC are Canada and the United States of America. All 35 States are members of the Organization of American States (see www.oas.org).

[2] The official text in Spanish is available at the website of the Government of Chile at http://www.gob.cl/media/2013/01/Declaraci%C3%B3n-de-Santiago.pdf; as well as the website of the Brazilian Ministry for Foreign Affairs: http://www.itamaraty.gov.br/sala-de-imprensa/notas-a-imprensa/i-cupula-de-estados-latino-americanos-e-caribenhos-celac-declaracao-de-santiago.

[3] Spanish original states as follows, “Recomendamos al Grupo de Trabajo creado por la I Reunión de Ministros y Ministras de Economía y Finanzas de CELAC, que realice un estudio sobre la viabilidad de implementar una instancia de solución de controversias latinoamericana y caribeña, dedicada a dirimir las disputas en materias de inversiones intra y extra comunitarias.