Promotion and Protection of Investment Bill [B18-2015]: deliberations

Meeting report

The Chairperson noted that the Committee would go through the Working Draft of the Promotion and Protection of Investment Bill with green text indicating non-contentious proposed amendments and red text indicating non-agreed upon proposed amendments. The Chairperson called for all members to be given and to read the submission from Anglo-American South Africa.

The Chairperson announced that, if members do not raise a hand or indicate objection, then she will assume that they agree with the proposed amendment in green text.

Discussion of the Clauses of the Bill
Title and Long Title
The Chairperson noted the change to the Title to read “Protection of Investment Bill”.

Advocate Johan Strydom, DTI Legal Advisor, said that the ‘A-list’ of proposed amendments makes for bad reading and the draft ‘B-Bill’ reads far more coherently. For example, it better reflects changes to the Title. Should the Committee adopt this amendment, the new Long Title would read ‘to provide for the protection of investors and their investment’. Unfortunately, the ‘B-Bill’ does not have line numbers.

Adv A Alberts (FF+) asked why the text ‘for the protection’ is in red but the rest of the sentence is not.

Adv Strydom explained that red text reflects phrases or amendments that, in the DTI’s opinion, have not been broadly and formally agreed upon by the Committee.

The Chairperson said that red text will require formal agreement from the Committee.

The Committee agreed to the changes to the Title and the Long Title.

Mr Mustaqeem De Gama, DTI Counsellor, said that Member’s concern is valid. He noted that the word ‘legislative’ has been deleted but that the rest actually should not have been in red.

The Chairperson agreed and felt that everyone was on track.

Preamble
The Chairperson noted that the Committee has agreed to substitute ‘need’ with ‘obligation’.

The Committee agreed on the clause ‘emphasising the rights related to access to just administrative action, access to justice, access to information and all other rights set out in the Bill of Rights’.

The Chairperson suggested using a semi-colon to avoid saying ‘access’ multiple times. The legal advisors had no objection.

The Chairperson called for agreement on the removal of ‘promotion’.

Mr A Williams (ANC) agreed.

Ms Phumelele Ngema, Senior State Legal Advisor, noted that another phrase in the Preamble mentions ‘promoting investment’.

Mr De Gama said that it is appropriate in the Preamble to reference promotion as a subsidiary goal of the Bill.

Mr N Koornhof (ANC) agreed with Mr De Gama.

The Chairperson saw no other objections, and thus said that the Committee is in agreement on retaining that mention of ‘promoting investment’.

Table of Contents
The Chairperson saw that there were no issues.

Mr De Gama noted that the new title of Clause 6 is ‘Establishment’; it was ‘Right of Establishment’ previously.

Definitions
The Chairperson noted changes to the definitions of ‘Department’, ‘dispute’, and ‘measures’ were in green text.

Mr Mkongi said that green text meant that they were agreed upon in principle. Can the Committee just focus on the red text?

The Chairperson said that perhaps the Committee should check everything; errors are easy to make.

The Chairperson called attention to the definition of “investment”.

The Chairperson called for the removal of the phrase ‘inter alia’ in favour of plain English.

Adv Strydom explained the definition of ‘lien’ to mean a form of security interest granted over an item of property to secure the payment of a debt.

Mr Mkongi said that township people may not understand the concept of a ‘lien’.

The Chairperson said that a discussion on the level of English for bills would be necessary in Parliament later.

The Chairperson asked whether instances of ‘South Africa’ should be replaced with ‘The Republic’.

Mr Mkongi called for consistency and an affirmation of the reason that South Africa is a Republic.

Adv Strydom said that the Constitution begins ‘The Constitution of The Republic of South Africa’.

The Chairperson said that the Bill should stick to that.

The Chairperson asked whether some instances of ‘or’ should be changed to ‘and’.

Adv Strydom replied that there is a significant difference in legislation between the two. When listing types of assets for investment, ‘or’ is necessary lest one has to have every type.

Interpretation of Act
The Chairperson pointed to the red text ‘the interpretation of the Bill of Rights contemplated in section 39 of the Constitution’.

Mr Mkongi observed that the Bill does not refer to the Constitution until page 7. Is that correct?

The Chairperson said that that is not the case.

Mr D Macpherson (DA) agreed to the red text.

Purpose of Act
The Chairperson noted that an instance of the word ‘promotion’ had been removed.

Mr Williams agreed.

The Chairperson noted the DA’s submission of the phrase ‘confirm the protection of investments in respect of national treatment and physical security of property’.

Mr Hill-Lewis wanted this phrase shortened to ‘confirm the protection of investments’ lest protection be limited.

Mr Williams agreed to this change.

Ms Xolelwa Mlumbi-Peter: DTI Acting Deputy Director General: International Trade and Economic Development Division, said that this could be deleted since it is a repetition of the Purpose of Act.

Mr Williams and Mr Hill-Lewis agreed to delete this phrase from the Bill.

The Chairperson noted that the Committee agreed to the rest of the green text in this Clause.

Application of Act
The Chairperson pointed to a submission by one of the legal advisors, Ms Ngema.

Ms Ngema explained that her submission concerns the use of the phrase ‘lawful investments’. If one looks at this term, there could be a wider interpretation than intended. She has studied various court cases on the word ‘lawful’ and that this use of the word ‘lawful’ here could reference international law, common law, or perhaps even something else; this ambiguity is inadvisable. She suggested the deletion of the word ‘lawful’ from the Application of Act.

Adv Strydom said that he has not researched this, but Ms Ngema’s explanation seemed sensible.

Mr De Gama said that the phrasing here does have a long history. The definition of ‘investment’ in this Bill does say a ‘lawful enterprise’. The use of ‘lawful’ here is mainly for emphasis and does not do any harm.

Adv Allan Small, Senior State Legal Advisor, said that, in State Law Advisor practice, one would not put the word ‘lawful’ here. One would not ever allow an unlawful investment. However, this is a matter of choice for the Committee.

Mr Mkongi asked whether the emphasis is a matter of principle. Is it necessary?

The Chairperson remembered that there are other instances of the word ‘lawful’ in the Bill such as ‘lawful enterprise’. There have been situations where something is legal in one country but not in South Africa; perhaps that is why this language is necessary.

Adv Alberts thought that this instance of ‘lawful’ may be superfluous but that it should not matter much either way. The Bill has sufficiently ensured that investments will be lawful.

Mr Hill-Lewis said that his suggestion of wording for this clause was in order to clean up the previously bad wording of this clause. He had no problem with deleting lawful.

Mr Williams called for the deletion of the word ‘lawful’.

The Chairperson saw that the Committee had decided about this.

Mr Alberts asked where the submissions he made to this Bill were; this draft appears to only include DTI submissions.

The Chairperson said that members must protest and raise their submissions as they progress through the Bill.

Mr Alberts gave his submission as follows, to be added on to the one sentence of the “Application of the Act: “and confirms the South African government’s obligation with regards to the protection of the Republic’s investors outside the Republic”. He said that his submission aims to guarantee protection to South African investors overseas if, for example, a Bilateral Investment Treaty (BIT) has been cancelled.

Mr Alberts confirmed that he approved of the removal of the word ‘lawful’.

Mr Mkongi said that at the last meeting, the Committee rejected Mr Alberts’ submission because the SA government cannot protect investors overseas. There had been a lengthy debate.

The Chairperson noted Adv Small’s opinion on the legality of Mr Alberts’ submission. She asked for him to highlight the pertinent areas of his opinion.

Adv Small said that court cases have held that South African legislation can only stand within our borders.

Adv Strydom said that what Mr Alberts’ submission proposes is the extra-territorial application of law. This is problematic legally right from the outset. Other countries have their own sovereignty. The submission reads ‘and confirms the South African government’s obligations…’ which presupposes that the SA government has such obligations in the first place. This assumes that there are such existing obligations to confirm.

Mr Alberts pointed out that this proposal was not rejected at the last meeting, but rather that the DTI would research the issue and respond. The DTI is setting up a straw-man; this does not call for extra-territorial jurisdiction. Why would the government not want to protect South African investors? Extra-territorial jurisdiction is a basic law principle; all lawyers know this. The opinion is unhelpful.

The Chairperson said that she was not at that meeting and the minutes of that previous meeting are not available. She hoped that discussion on this could stay substantive and not focus on what was and was not said in a previous meeting.

Mr De Gama said that Mr Alberts did in fact ask for a written opinion from the DTI, which was provided today. The goal of Mr Alberts’ submission can be dealt with in a few ways. First, any citizen can petition his or her government for intervention. However, government may deny this request. The due process of the government denying a request is part and parcel of the Constitution, regardless of this Bill. This submission is thus already covered by common law.

Mr Hill-Lewis said that he does not have legal training, but that a South African citizen abroad with an SA passport can seek help from the SA consulate. This assistance is provided for by domestic legislation. Why should companies be different? BITs were by name bilateral/ two-way. This submission calls for some bilateral protection.

Mr J Esterhuizen (IFP) said that this Bill needs to replace BITs. At the time of BITs, these BITs reassured investors sufficiently. This Bill is concerning to foreign investors, especially when seen with other legislation in the works.

Mr Williams said that the ANC rejects Mr Alberts’ submission.

Mr Alberts said that the common law did not protect South African investors in Zimbabwe. The government decided not to act, and thus companies lost millions of rand in Zimbabwe. This government should codify an obligation to South African investors overseas. Why would this government not want to uphold the principle of reciprocity? Even in international law it says that, if your local law is prejudiced against you, you do not need to pursue local remedies before international remedies. Discretion cannot be left to government on the treatment of this citizen.

The Chairperson said that this issue should be flagged. It would be discussed at the 28 October meeting.

Mr Lionel October, DTI Director-General, expressed sympathy for Mr Alberts’ intention. Mr Alberts wants us to write this obligation into law. However, the separation of powers must be considered. Constitutional judges have clearly said that laws cannot apply in Germany or Zimbabwe; the Executive cannot do that.

The Chairperson said that she would study this legal position, as should others. This issue is not closed.

Fair Administrative Treatment
The Chairperson noted that this clause is new and is a submission from the DTI.

Ms Mlumbi-Peter said that this clause addresses concerns from the DA about the standards of treatment. This new clause borrows from Clause 3 and from the Constitution. The proposal includes guarantees of procedural justice, transparency, and the processing of disputes in a timely fashion.

Mr Hill-Lewis welcomed the proposal and pointed to one typo.

Mr Williams agreed to the new clause.

Adv Strydom asked where the typo was.

Mr Hill-Lewis noted that there was a subject-verb agreement issue with the word ‘decision’.

Establishment
Ms Mlumbi-Peter noted that this clause was previously called the ‘right of establishment’.

Adv Strydom said that the numbering would be fixed later.

The Chairperson noted that everyone agreed on the ‘Establishment’ clause in its entirety.

The Chairperson said that there had been an issue about ‘post-establishment’. Can we address this flag now?

Ms Mlumbi-Peter said that the sub-clauses had been swapped around to make the clause start with the less negative sub-clause. Members can review the language here if necessary. It is important to emphasise that South Africa has a post-establishment system; investors here are not guaranteed establishment.

Mr Hill-Lewis said that this does not insinuate some sort of pre-vetting panel or process.

The Chairperson saw that the DTI confirms this.

[The Committee elected Mr Williams as Acting Chairperson as Ms Fubbs had to leave for an appointment].

National Treatment
Mr Hill-Lewis said that the Committee had agreed to delete sub-clause 4(g).

The Acting Chairperson saw that everyone agreed.

Physical Security of Property
The Acting Chairperson noted that the title of this clause was in red.

Mr Mkongi said that it should be ‘Physical Security of Investment’.

The Acting Chairperson noted that everyone agreed.

Ms Mlumbi-Peter submitted a minor language change from ‘in line’ to ‘in accordance’.

Mr Hill-Lewis agreed.

Legal Protection of Investment
The Acting Chairperson commented that everyone agreed with the change to the Title of this Clause.

Mr Hill-Lewis noted that he had submitted a Clause 10/new Clause 9 proposal that does not appear here.

Mr De Gama said that the aim of this Bill is not to overlap with the Expropriation Bill which currently under debate in Parliament. The DTI felt that the DA submission is unnecessary.

Mr Hill-Lewis disagreed. The Bill does not unpack Section 25 of the Constitution sufficiently. Investors share this concern. His proposal covers two issues from public submissions. First, the courts have distinguished between ‘expropriation’ and ‘deprivation’; the Constitutional Court in this case made very clear that that decision was a specific case and not precedent-setting. There should be legislative support of this judgment to prevent arbitrary deprivation. The Bill should provide concrete peace of mind to investors. If there is no legal impediment to his submission, then it should be included. Mr De Gama has said that the Bill should have a demonstrative effect to ensure protection.

Mr Mkongi said that Section 25 of Constitution explains in detail various protections. The whole Bill speaks about the Bill of Rights. The first sentence of the Bill calls for protection. Why is more necessary?

Mr D Macpherson (DA) said that the Bill should be substantive, clear, and definitive in its entirety.

The Acting Chairperson said that the Committee should flag this. There is clearly a debate here, and we have heard both sides. He noted that the clauses ‘Transfer of Funds’ and ‘Right to Regulate’ have no green or red text and thus he moved past them.

Dispute Resolution
Mr De Gama said that this clause now automatically establishes certain criteria instead of leaving them to the discretion of the Minister later. There are now criteria for selecting qualified mediators, though parties in a dispute could reach their own agreement. Parties ‘may request the Department/Competent Authority to appoint a mediator’. Some provisions are based on the recently published Investment Charter between the EU and the US.

Mr Hill-Lewis agreed with the language submitted by the DTI for sub-clause 2, though he had concerns about the rest of the clause.

Mr Mkongi asked why brackets around ‘department’ and ‘competent authority’ appear in sub-clause 2(c).

Mr De Gama said that, in certain circumstances, the DTI would not be able to act as a competent authority to appoint a mediator when parties do not agree on appointing a mediator.

The Acting Chairperson called for the Committee to choose between ‘department’ and ‘competent authority’.

Mr Mkongi noted that investors will have conflicts with the State, not necessarily the DTI specifically. ‘Department’ should specifically state that it means the DTI. What happens if the DTI itself is in a conflict?

The Acting Chairperson said that perhaps the word ‘or’ should be employed.

Mr Hill-Lewis agreed.

The Acting Chairperson called for comment from the legal advisors. He was concerned about who would choose the ‘competent authority’.

Mr October said that perhaps the Bill should specify which authority. The DTI will come back on this.

Mr Koornhof suggested that the authority be defined under definitions.

Mr Mkongi also called for the definition of ‘parties’.

Mr Hill-Lewis called for the replacement of the word ‘Territory’ with ‘Republic’ and the deletion of the phrase ‘facsimile number’.

Mr Mkongi asked why the phrase ‘Foreign Investor’ is capitalised here.

Mr De Gama said that many submissions have complained that, if a request for representation in international arbitration is made to government, government could just say no. Now, government does have the right and should have the right to vet what cases it takes. However, a plain ‘no’ would not be allowed. There will be a procedure and an appeal process for the consideration of government representation that is spelled out here.

Mr Hill-Lewis said that this clause is still not sufficient reassurance to investors here to deny investors ‘investor-state’ dispute settlement (ISDS). Government’s right to deny representation to investors may certainly arise from the fact that the case is frivolous, but it may also occur when taking a case is not geo-politically or diplomatically advisable.

There was an argument before the parliamentary recess that the international trend is towards state-state dispute settlement. The recent trade agreement between the EU and the US includes ISDS, but with some key innovations of which we should take note. For example, it requires that dispute resolution proceedings take place in the open and that all investor documents be publicly disclosed. The awards and final judgments of the arbitration must also be made public. It makes provisions for the expedited review of frivolous claims; there are strong mechanisms for awarding costs against the frivolous claimant. There are new rules against parallel proceedings pursuing the same claim. There is a specific code of conduct for the appointment and behaviour of arbitrators. These provisions should assuage the DTI of its fears of endless frivolous dispute cases. Including such provisions would strengthen the Bill and reassure investors.

Mr October said that ISDS is flawed with jurisdictional problems and other issues. These attempts by the EU to improve ISDS are a band-aid; the best option is to do away with ISDS. There is no democratic government that will not protect its investors. The way forward is state-state dispute settlement. The Minister would have to follow just and fair administrative practices when denying a request for arbitration; that process could be challenged in court as well.

Mr Wamkele Mene: Director: Trade in Services Trade Policy & Negotiations at International Trade and Economic Development (ITED) pointed to the Marrakesh Agreement establishing the WTO, and said that it does not enable companies to, by themselves, pursue disputes. This agreement from 1994 requires companies to petition their governments for representation.

Mr Alberts was concerned about the willingness of government to protect everyone. What about a small investor that cannot afford these legal battles? South Africa has many individual investors. These people do not always have the legal resources to access domestic remedies. Space must be created for the eventuality in which any investor is denied representation by government.

Mr Mkongi thought that ISDS might encourage irresponsibility. If a company’s dispute is not frivolous, then the government will back it. Companies can request government representation as disciplined citizens if they have exhausted other means.

Mr Hill-Lewis said that the Marrakesh Agreement was from 1994. Both the modern Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) contain ISDS. These are massive and precedent setting agreements. This clause in the Bill leaves too much to discretion. The fact that the government usually backs investors is not enough. Even if government agrees, government then can still decide whether or not to submit to international arbitration and how. We have an opportunity here to be on the cutting edge of ISDS and attack the difficulties of ISDS head on. A couple of frivolous cases is not enough to prevent this.

Mr De Gama said that the Transatlantic Trade and Investment Partnership has set up joint courts between the EU and the US, so it is still essentially domestic remedies. The context is different.

Ms Mlumbi-Peter said that the EU is proposing an investor court with five independent judges from each side. This shows that there is little trust in ISDS. Investors constantly challenge a government’s right to regulate. This Bill must preserve SA’s right to regulate. We have tried to accommodate concerns with the ‘right to administrative justice’ inserted earlier. The process will not be arbitrary. The SA judicial system ranks number nine worldwide and is efficient, independent, and world class. After that process, investors can ask government for representation and the government may consent after looking at the merits of the case.

The Acting Chairperson hoped to avoid a six-hour debate on this issue and called for a resumption of the discussion when a full contingent of members is present.

Mr Hill-Lewis asked the DTI to point him to the relevant section of the Marrakesh Agreement that prohibits ISDS. The DTI has made the case that the objective here is to avoid frivolous disputes. However, you just said that, even after establishing that a case is not frivolous, the government could still turn the case down. This seems contradictory.

Mr Hill-Lewis said the suggestion about the TTIP’s independent court idea seems like a great one. This would combine domestic procedure with investor concerns. We can build into that a protection for the SA right to regulate without asking investors to rely on the government for consent to protection.

Mr De Gama said that the Marrakesh Agreement refers to the General Agreement on Tariffs and Trade (GATT) of 1947, which was replaced by the GATT of 1994. If one goes to the GATT of 1994, which is one of the annexures of the Marrakesh Agreement, Article 22 and 23 set out procedures for WTO members. These along with Annex 2 of the Marrakesh Agreement all clearly combine to call for state-state dispute settlement.

Mr October said that Mr Hill-Lewis wants people to have access to independent tribunals. However, the judiciary here is already independent. If an investor is aggrieved by the action of the Executive, he or she can pursue review all the way up to the Constitutional Court. This Executive has never pursued arbitrary actions. ISDS undermines domestic judicial processes. International arbitrators are private and unaccountable. If someone has a case, they will win it in this country. Even if an investor loses in the domestic courts, this Bill allows for independent arbitration pending government consent; that government consent will be fair and is subject to fair administrative justice. An independent party will overrule the Minister if he or she acts arbitrarily.

Mr Mkongi pointed to a 2015 agreement of the Association of Southeastern Asian Nations on this matter. Just because Europe is acting in one way does not make an international trend; that body in making its agreement actually quoted South Africa as inspiring it to pursue state-state dispute settlement.

The Acting Chairperson said that this matter would be addressed again next week with a full contingent of members.

Regulations
Mr Hill-Lewis said that sub clause (b) grants the Minister powers over this Bill that are far too broad and open-ended. He suggested deleting this sub clause and leaving it at sub clause (a) which reads that ‘the Minister may… make regulations regarding ---- any matter which may or must be prescribed in terms of this Act’.

Adv Strydom said that sub clause (b) does not give a wide power, but rather to create necessary regulations to achieve the Bill. Many other provisions by Parliament give similar powers. He called for the reconsideration of the deletion of this.

Mr Mkongi asked whether the deletion of this sentence will significantly change the Bill?

Adv Small said that this provision has been tested in courts and by state law advisors. The Minister is restricted to the Bill itself. It should remain.

Adv Strydom said that, under sub clause (a) alone, the Minister is curtailed to only regulating under the explicit language of the Bill.

Mr Hill-Lewis said that the Minister’s power should be so curtailed. Parliament too often gives Ministers powers that are far too broad. Parliament must decide exactly what powers to give the Executive, or else what is the point of having a Parliament?

Mr Koornhof said that the Minister would only be able to regulate within the Bill. He called for the deletion of the phrase ‘expedient’.

Adv Strydom agreed that this does not give the Minister unfettered power.

Mr Alberts asked how the courts approach measuring a regulation from the Minister against the purpose of an Act and deciding whether the Minister’s action was appropriate.

Adv Strydom said that he agrees that political functionaries should not be lawmakers. Courts can challenge a Minister’s regulation, and could decide whether a regulation was appropriate within the scope of the Bill.

Mr Macpherson said that the electorate feels that politicians are not accountable; this sub clause feeds into that narrative. If the Minister wants a power added or deleted from the Bill, then the Minister should approach Parliament. There have been many instances of Ministers gazetting whatever they want and the courts have found that power has been abused.

The Acting Chairperson said that there has been in-depth discussion on this matter. The Committee is now at an impasse. It will address the matter further next week.

Mr Mkongi said that Mr Macpherson’s point on accountability is an important debate.

Mr Hill-Lewis asked for the state law advisors to provide multiple court judgments on this matter. He would consider sub clause (b) if it were subject to Parliament; the Minister should ask the legislature permission before pursuing an un-explicit power of regulation. These powers of regulations are for the elected Parliament to decide, not the Minister.

Mr Koornhof said that the Anglo-American submission complains that this Bill is not harmonised with SADC legislation. One might want to incorporate this somehow into the clause on Transitional Arrangements.

The Acting Chairperson said that the Committee would discuss that submission next week.

Transitional Arrangements
Mr Alberts asked what happens when a BIT is ended but that BIT had provisions where, upon its ending, it would still be applicable for ten or twenty years. Would SA law only be applicable after those twenty years?

Ms Mlumbi-Peter said that the first sub clause of Clause 14 covers this concern. The survival clauses that he mentioned would continue.

Mr Hill-Lewis asked about un-terminated BITs, such as the SA BIT with China that has not yet been terminated? Are investments made that would previously have been covered by that BIT now going to be covered by that BIT or by this legislation?

Mr De Gama replied that the objective of the Bill is very clear in its goal to regulate the law in South Africa. The Transitional Arrangements clause was drafted in this way to accommodate BITs, terminated or not. The magic words here are ‘existing and new investments’. Once a BIT is terminated, there is a period of continued existence, but only for investments made prior to termination. Any investment made after a BIT’s termination but before this Bill is promulgated will be covered by general South African law. There is no contradiction in the clause.

Mr October said that the legal principles would continue and would apply: whatever right a citizen has in a country or through an agreement will remain intact.

Short Title and Commencement
The Acting Chairperson noted that ‘promotion’ has been removed.

Mr Mkongi agreed to this change.

The Acting Chairperson asked members to study the submission from Anglo-American. He asked Adv Alberts to submit his concerns about Clause 5 in writing. The flagged clauses from today include Clauses 9, 12(2)(c), 12(5), and 13(b).

Mr Koornhof requested that next week they also consider harmonisation with the SADC investment agenda.

The meeting was adjourned.

[Apologies were given for Mr Kolako and Ms Mantashe]