

Currently released so far... 12553 / 251,287
Browse latest releases
2010/12/01
2010/12/02
2010/12/03
2010/12/04
2010/12/05
2010/12/06
2010/12/07
2010/12/08
2010/12/09
2010/12/10
2010/12/11
2010/12/12
2010/12/13
2010/12/14
2010/12/15
2010/12/16
2010/12/17
2010/12/18
2010/12/19
2010/12/20
2010/12/21
2010/12/22
2010/12/23
2010/12/24
2010/12/25
2010/12/26
2010/12/27
2010/12/28
2010/12/29
2010/12/30
2011/01/01
2011/01/02
2011/01/04
2011/01/05
2011/01/07
2011/01/09
2011/01/10
2011/01/11
2011/01/12
2011/01/13
2011/01/14
2011/01/15
2011/01/16
2011/01/17
2011/01/18
2011/01/19
2011/01/20
2011/01/21
2011/01/22
2011/01/23
2011/01/24
2011/01/25
2011/01/26
2011/01/27
2011/01/28
2011/01/29
2011/01/30
2011/01/31
2011/02/01
2011/02/02
2011/02/03
2011/02/04
2011/02/05
2011/02/06
2011/02/07
2011/02/08
2011/02/09
2011/02/10
2011/02/11
2011/02/12
2011/02/13
2011/02/14
2011/02/15
2011/02/16
2011/02/17
2011/02/18
2011/02/19
2011/02/20
2011/02/21
2011/02/22
2011/02/23
2011/02/24
2011/02/25
2011/02/26
2011/02/27
2011/02/28
2011/03/01
2011/03/02
2011/03/03
2011/03/04
2011/03/05
2011/03/06
2011/03/07
2011/03/08
2011/03/09
2011/03/10
2011/03/11
2011/03/13
2011/03/14
2011/03/15
2011/03/16
2011/03/17
2011/03/18
2011/03/19
2011/03/20
2011/03/21
2011/03/22
2011/03/23
2011/03/24
2011/03/25
2011/03/26
2011/03/27
2011/03/28
2011/03/29
2011/03/30
2011/03/31
2011/04/01
2011/04/02
2011/04/03
2011/04/04
2011/04/05
2011/04/06
2011/04/07
2011/04/08
2011/04/09
2011/04/10
2011/04/11
2011/04/12
2011/04/13
2011/04/14
2011/04/15
2011/04/16
2011/04/17
2011/04/18
2011/04/19
2011/04/20
2011/04/21
2011/04/22
2011/04/23
2011/04/24
2011/04/25
2011/04/26
2011/04/27
2011/04/28
2011/04/29
2011/04/30
2011/05/01
2011/05/02
2011/05/03
2011/05/04
2011/05/05
2011/05/06
2011/05/07
2011/05/08
2011/05/09
2011/05/10
2011/05/11
2011/05/12
Browse by creation date
Browse by origin
Embassy Athens
Embassy Asuncion
Embassy Astana
Embassy Asmara
Embassy Ashgabat
Embassy Apia
Embassy Ankara
Embassy Amman
Embassy Algiers
Embassy Addis Ababa
Embassy Accra
Embassy Abuja
Embassy Abu Dhabi
Embassy Abidjan
Consulate Auckland
Consulate Amsterdam
Consulate Adana
American Institute Taiwan, Taipei
Embassy Bujumbura
Embassy Buenos Aires
Embassy Budapest
Embassy Bucharest
Embassy Brussels
Embassy Bridgetown
Embassy Bratislava
Embassy Brasilia
Embassy Bogota
Embassy Bishkek
Embassy Bern
Embassy Berlin
Embassy Belmopan
Embassy Belgrade
Embassy Beirut
Embassy Beijing
Embassy Banjul
Embassy Bangkok
Embassy Bandar Seri Begawan
Embassy Bamako
Embassy Baku
Embassy Baghdad
Consulate Barcelona
Embassy Copenhagen
Embassy Conakry
Embassy Colombo
Embassy Chisinau
Embassy Caracas
Embassy Canberra
Embassy Cairo
Consulate Curacao
Consulate Ciudad Juarez
Consulate Chennai
Consulate Casablanca
Consulate Cape Town
Consulate Calgary
Embassy Dushanbe
Embassy Dublin
Embassy Doha
Embassy Djibouti
Embassy Dili
Embassy Dhaka
Embassy Dar Es Salaam
Embassy Damascus
Embassy Dakar
Consulate Dubai
Embassy Helsinki
Embassy Harare
Embassy Hanoi
Consulate Ho Chi Minh City
Consulate Hermosillo
Consulate Hamilton
Consulate Hamburg
Consulate Halifax
Embassy Kyiv
Embassy Kuwait
Embassy Kuala Lumpur
Embassy Kinshasa
Embassy Kingston
Embassy Kigali
Embassy Khartoum
Embassy Kathmandu
Embassy Kampala
Embassy Kabul
Consulate Kolkata
Embassy Luxembourg
Embassy Luanda
Embassy London
Embassy Ljubljana
Embassy Lisbon
Embassy Lima
Embassy Lilongwe
Embassy La Paz
Consulate Lahore
Consulate Lagos
Mission USOSCE
Mission USNATO
Mission UNESCO
Embassy Muscat
Embassy Moscow
Embassy Montevideo
Embassy Monrovia
Embassy Minsk
Embassy Mexico
Embassy Mbabane
Embassy Maputo
Embassy Manila
Embassy Manama
Embassy Managua
Embassy Malabo
Embassy Madrid
Consulate Munich
Consulate Mumbai
Consulate Montreal
Consulate Monterrey
Consulate Milan
Consulate Melbourne
Embassy Nicosia
Embassy Niamey
Embassy New Delhi
Embassy Ndjamena
Embassy Nassau
Embassy Nairobi
Consulate Naples
Consulate Naha
Embassy Pristina
Embassy Pretoria
Embassy Prague
Embassy Port Of Spain
Embassy Port Louis
Embassy Port Au Prince
Embassy Phnom Penh
Embassy Paris
Embassy Paramaribo
Embassy Panama
Consulate Peshawar
REO Basrah
Embassy Rome
Embassy Riyadh
Embassy Riga
Embassy Reykjavik
Embassy Rangoon
Embassy Rabat
Consulate Rio De Janeiro
Consulate Recife
Secretary of State
Embassy Suva
Embassy Stockholm
Embassy Sofia
Embassy Skopje
Embassy Singapore
Embassy Seoul
Embassy Sarajevo
Embassy Santo Domingo
Embassy Santiago
Embassy Sanaa
Embassy San Salvador
Embassy San Jose
Consulate Strasbourg
Consulate St Petersburg
Consulate Shenyang
Consulate Shanghai
Consulate Sapporo
Consulate Sao Paulo
Embassy Tunis
Embassy Tripoli
Embassy Tokyo
Embassy The Hague
Embassy Tel Aviv
Embassy Tehran
Embassy Tegucigalpa
Embassy Tbilisi
Embassy Tashkent
Embassy Tallinn
Consulate Toronto
Consulate Tijuana
USUN New York
USEU Brussels
US Office Almaty
US Mission Geneva
US Interests Section Havana
US Delegation, Secretary
UNVIE
Embassy Ulaanbaatar
Embassy Vilnius
Embassy Vienna
Embassy Vatican
Embassy Valletta
Consulate Vladivostok
Consulate Vancouver
Browse by tag
APECO
ASEC
AMGT
AFIN
APER
ACABQ
AORC
AEMR
AF
AE
AR
AGMT
AU
AY
ABLD
AS
AG
AJ
APCS
AX
AM
AMEX
ATRN
ADM
AMED
AFGHANISTAN
AZ
AL
ASUP
AND
ARM
ASEAN
AFFAIRS
AQ
ATFN
AMBASSADOR
AODE
APEC
ACBAQ
AFSI
AFSN
AO
ABUD
AC
ADPM
ADCO
ASIG
ARF
AUC
ASEX
AGAO
AA
AER
AVERY
AGRICULTURE
AIT
AADP
ASCH
AORL
AROC
ACOA
ANET
AID
AMCHAMS
AINF
AMG
AFU
AN
ALOW
ASECKFRDCVISKIRFPHUMSMIGEG
ACS
ADANA
AECL
ACAO
AORG
AGR
BEXP
BR
BM
BG
BL
BA
BTIO
BO
BP
BC
BILAT
BK
BU
BD
BRUSSELS
BB
BF
BBSR
BIDEN
BX
BE
BH
BT
BY
BMGT
BWC
BTIU
BN
CA
CASC
CFED
CO
CH
CS
CU
CE
CI
CM
CMGT
CJAN
COM
CG
CIS
CVIS
CR
CKGR
CHR
CVR
COUNTER
CIA
CLINTON
CY
CPAS
CD
CBW
COUNTERTERRORISM
CITEL
CDG
CW
CODEL
COUNTRY
CLEARANCE
COE
CN
CARICOM
CB
CONDOLEEZZA
CWC
CACS
CSW
CIDA
CIC
CITT
CONS
CL
CACM
CDB
CDC
CAN
CF
CJUS
CTM
CBSA
CARSON
CT
CLMT
CBC
CEUDA
CV
COPUOS
CTR
CROS
CAPC
CAC
CNARC
CICTE
CBE
ECON
ETRD
EIND
ENRG
EC
ELAB
EAGR
EAID
EFIS
EFIN
EINV
EUN
EG
EPET
EAIR
EU
ELTN
EWWT
ECIN
ERD
EI
ETTC
EUR
EN
EZ
ETC
ENVI
EMIN
ET
ENVR
ER
ECPS
EINT
EAP
ES
ENIV
ECONOMY
EXTERNAL
EINN
EFTA
ECONOMIC
EPA
EXBS
ECA
ELN
ETRDEINVECINPGOVCS
ENGR
ECUN
ENGY
ECONOMICS
ELECTIONS
EIAR
EINDETRD
EREL
EUC
ECONEFIN
EURN
EDU
ETRDEINVTINTCS
ECIP
ENERG
EFIM
EAIDS
EK
ETRDECONWTOCS
EINVETC
ECONCS
EUNCH
ESA
ECINECONCS
EUREM
ESENV
EFINECONCS
ETRC
ENNP
EAIG
EXIM
EEPET
EINVECONSENVCSJA
EUMEM
ETRA
ERNG
ETRO
ETRN
EINVEFIN
ICTY
IN
IS
IR
IC
IZ
IA
INTERPOL
IAEA
IT
IMO
IO
IV
ID
IRAQI
IEA
INRB
IL
IWC
ITU
ICAO
ISRAELI
ICRC
IIP
IMF
IBRD
ISLAMISTS
ITALY
ITALIAN
ILO
IPR
IQ
IRS
IAHRC
IZPREL
IRAJ
IDP
ILC
ITF
ICJ
IF
ITPHUM
INMARSAT
ISRAEL
IACI
IBET
ITRA
INR
IRC
IDA
ICTR
IGAD
INRA
INRO
IEFIN
INTELSAT
INTERNAL
INDO
ITPGOV
KWMN
KSCA
KDEM
KTFN
KIPR
KCRM
KPAL
KE
KPAO
KPKO
KS
KN
KISL
KFRD
KJUS
KIRF
KFLO
KG
KTIP
KTER
KRCM
KTIA
KGHG
KIRC
KU
KPRP
KMCA
KMPI
KSEO
KNNP
KZ
KNEI
KCOR
KOMC
KCFC
KSTC
KMDR
KFLU
KSAF
KSEP
KSAC
KR
KGIC
KSUM
KWBG
KCIP
KDRG
KOLY
KAWC
KCHG
KHDP
KRVC
KBIO
KAWK
KGCC
KHLS
KBCT
KPLS
KREL
KCFE
KMFO
KV
KFRDKIRFCVISCMGTKOCIASECPHUMSMIGEG
KFTFN
KVPR
KTDB
KSPR
KIDE
KVRP
KTEX
KBTR
KTRD
KICC
KCOM
KO
KLIG
KDEMAF
KMRS
KRAD
KOCI
KSTH
KUNR
KNSD
KGIT
KFSC
KHIV
KPAI
KICA
KACT
KHUM
KREC
KSEC
KFRDCVISCMGTCASCKOCIASECPHUMSMIGEG
KCMR
KPIN
KESS
KDEV
KNAR
KNUC
KPWR
KENV
KWWMN
KWMNCS
KPRV
KOM
KBTS
KCRS
KNPP
KWNM
KRFD
KVIR
KTBT
KAID
KRIM
KDDG
KRGY
KHSA
KWMM
KMOC
KSCI
KPAK
KX
KPAONZ
KCGC
KID
KPOA
KIFR
KFIN
KWAC
KOMS
KCRCM
KNUP
KMIG
KNNPMNUC
KERG
KTLA
KCSY
KJUST
MOPS
MARR
MASS
MNUC
MX
MCAP
MO
MR
MI
MD
MK
MA
MP
MY
MTCRE
MOPPS
MASC
MIL
MTS
MLS
MILI
MAR
MU
MEPN
MAPP
MTCR
MEPI
MZ
MEETINGS
MG
MW
MAS
MT
MCC
MIK
ML
MARAD
MV
MERCOSUR
MTRE
MPOS
MEPP
MILITARY
MDC
MQADHAFI
MUCN
MRCRE
MAPS
MEDIA
MASSMNUC
MC
NZ
NZUS
NL
NU
NATO
NP
NO
NIPP
NE
NH
NR
NA
NPT
NI
NSF
NG
NSG
NAFTA
NC
NDP
NEW
NRR
NATIONAL
NT
NS
NASA
NAR
NV
NORAD
NSSP
NK
NPA
NGO
NSC
NATOPREL
NW
NPG
NSFO
OPDC
OTRA
OIIP
OREP
OVIP
OSCE
OEXC
OIE
OPRC
OAS
OPIC
OTR
OMIG
OSAC
OFFICIALS
OECD
OSCI
OBSP
OFDA
OPCW
ODIP
OFDP
OES
OPAD
OCII
OHUM
OVP
ON
OIC
OCS
PHUM
PREL
PGOV
PINR
PTER
PARM
PREF
PM
PE
PINS
PK
PHSA
PBTS
PRGOV
PA
PORG
PP
PS
PGOF
PL
PO
PARMS
PKFK
PSOE
PEPR
PAK
POL
PPA
PINT
PMAR
PRELP
PREFA
PALESTINIAN
PBIO
PINF
PNG
PMIL
PFOR
PUNE
PGOVLO
PAO
POLITICS
PHUMBA
PSEPC
PTBS
PCUL
PROP
PNAT
PNR
POLINT
PGOVE
PROG
PHALANAGE
PARTY
PDEM
PECON
PROV
PHUMPREL
PGOC
PY
PCI
PLN
PDOV
PREO
PGIV
PHUH
PAS
PU
POGOV
PF
PINL
POV
PAHO
PRL
PG
PRAM
POLITICAL
PARTIES
POLICY
PGOVSMIGKCRMKWMNPHUMCVISKFRDCA
PGGV
PHUS
PSA
PHUMPGOV
PEL
PSI
PAIGH
POSTS
PBT
PTERE
RS
RU
RW
RM
RO
RP
REGION
RSP
RF
RICE
RCMP
RFE
RIGHTS
RIGHTSPOLMIL
ROBERT
RUPREL
RELATIONS
ROOD
REACTION
RSO
REPORT
SENV
SNAR
SCUL
SR
SC
SOCI
SMIG
SI
SP
SU
SO
SW
SY
SA
SZ
SAN
SF
SN
STEINBERG
SG
ST
SIPDIS
SNARIZ
SNARN
SSA
SK
SPCVIS
SOFA
SAARC
SL
SEVN
SARS
SIPRS
SHUM
SANC
SWE
SHI
SYR
SNARCS
SPCE
SYRIA
SEN
SH
SCRS
SENVKGHG
TRGY
TSPL
TPHY
TSPA
TBIO
TI
TW
THPY
TX
TU
TS
TZ
TC
TH
TT
TIP
TO
TERRORISM
TRSY
TINT
TN
TURKEY
TBID
TL
TV
TNGD
TD
TF
TP
TFIN
TAGS
TK
TR
UNSC
UK
UNGA
UN
US
UNHRC
UG
UP
UNMIK
UNHCR
UE
USTR
UNVIE
UAE
UZ
UY
UNO
UNESCO
USEU
USOAS
UV
UNODC
UNCHS
UNFICYP
UNEP
UNIDROIT
UNDESCO
UNDP
UNPUOS
UNC
UNAUS
USUN
UNCHC
UNCHR
UNCND
UNICEF
UNCSD
UNDC
USNC
USPS
USAID
Browse by classification
Community resources
courage is contagious
Viewing cable 09QUITO973, GOE "EXPLAINS" TERMINATION OF INVESTMENT TREATIES...
If you are new to these pages, please read an introduction on the structure of a cable as well as how to discuss them with others. See also the FAQs
Understanding cables
Every cable message consists of three parts:
- The top box shows each cables unique reference number, when and by whom it originally was sent, and what its initial classification was.
- The middle box contains the header information that is associated with the cable. It includes information about the receiver(s) as well as a general subject.
- The bottom box presents the body of the cable. The opening can contain a more specific subject, references to other cables (browse by origin to find them) or additional comment. This is followed by the main contents of the cable: a summary, a collection of specific topics and a comment section.
Discussing cables
If you find meaningful or important information in a cable, please link directly to its unique reference number. Linking to a specific paragraph in the body of a cable is also possible by copying the appropriate link (to be found at theparagraph symbol). Please mark messages for social networking services like Twitter with the hash tags #cablegate and a hash containing the reference ID e.g. #09QUITO973.
Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
09QUITO973 | 2009-11-17 22:43 | 2011-04-29 17:00 | CONFIDENTIAL | Embassy Quito |
Appears in these articles: http://www.eluniverso.com/2011/04/26/1/1355/cable-235229.html |
VZCZCXYZ0000
RR RUEHWEB
DE RUEHQT #0973/01 3212243
ZNY CCCCC ZZH
R 172243Z NOV 09
FM AMEMBASSY QUITO
TO RUEHC/SECSTATE WASHDC 0347
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEHBO/AMEMBASSY BOGOTA
RUEHC/DEPT OF AGRICULTURE WASHINGTON DC
RUEHCV/AMEMBASSY CARACAS
RUEHGL/AMCONSUL GUAYAQUIL
RUEHPE/AMEMBASSY LIMA
RUEHQT/AMEMBASSY QUITO
C O N F I D E N T I A L QUITO 000973
SIPDIS
DEPT FOR WHA/AND, WHA/EPSC AND EEB/IFD/OIA
DEPT PLEASE PASS TO USTR FOR BENNETT HARMAN
E.O. 12958: DECL: 2019/11/17
TAGS: EINV ECON EC
SUBJECT: GOE "EXPLAINS" TERMINATION OF INVESTMENT TREATIES...
id: 235229
date: 11/17/2009 22:43
refid: 09QUITO973
origin: Embassy Quito
classification: CONFIDENTIAL
destination: 09QUITO905|09QUITO938|09QUITO949
header:
VZCZCXYZ0000
RR RUEHWEB
DE RUEHQT #0973/01 3212243
ZNY CCCCC ZZH
R 172243Z NOV 09
FM AMEMBASSY QUITO
TO RUEHC/SECSTATE WASHDC 0347
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEHBO/AMEMBASSY BOGOTA
RUEHC/DEPT OF AGRICULTURE WASHINGTON DC
RUEHCV/AMEMBASSY CARACAS
RUEHGL/AMCONSUL GUAYAQUIL
RUEHPE/AMEMBASSY LIMA
RUEHQT/AMEMBASSY QUITO
----------------- header ends ----------------
C O N F I D E N T I A L QUITO 000973
SIPDIS
DEPT FOR WHA/AND, WHA/EPSC AND EEB/IFD/OIA
DEPT PLEASE PASS TO USTR FOR BENNETT HARMAN
E.O. 12958: DECL: 2019/11/17
TAGS: EINV ECON EC
SUBJECT: GOE "EXPLAINS" TERMINATION OF INVESTMENT TREATIES
REF: 09 QUITO 905; 09 QUITO 949; 09 QUITO 938
CLASSIFIED BY: Andrew Chritton, Charge, State, Exec; REASON: 1.4(B),
(D)
Summary
¶1. (SBU) Ecuadorian Foreign Minister Falconi explained the
reasoning behind the GoE's decision to terminate 13 bilateral
investment treaties (BITs) during a November 12 meeting with
Embassy representatives of the affected countries. Falconi
reiterated the GoE's claim that Ecuador's 2008 Constitution was
forcing the government's hand, but said the GoE was preparing a
model to use for negotiation of new investment agreements, which it
expected to commence in January. The GoE's new model would limit
settlement of State-Investor disputes to regional, rather than
international, arbitration, and eliminate provisions providing
"national treatment" for foreign investors. Although the National
Assembly has not yet responded to the GoE's request to approve
termination of the BITs, we expect the GoE will eventually receive
this approval and submit formal notification to terminate the
U.S.-Ecuador BIT. End Summary.
Background
¶2. (SBU) On September 29, 2009, President Correa sent a letter to
the National Assembly requesting approval to terminate thirteen of
the country's bilateral investment treaties (BITs). The affected
treaties were with: Argentina, Canada, Chile, China, Finland,
France, Germany, the Netherlands, Sweden, Switzerland, the United
Kingdom (includes Ireland), the United States, and Venezuela. The
GoE did not request approval to terminate BITS with Spain, Italy,
Peru and Bolivia. The National Assembly has not yet responded to
the President's request. (See Ref A for Post's initial reporting
on this decision and Ref B for National Assembly President
Cordero's comments on this process.)
MFA Scrambling to Minimize Diplomatic Fallout
¶3. (SBU) On November 12, Minister of Foreign Affairs Falconi
convened a meeting of ambassadors and representatives from those
Missions with BITs that the GoE plans to terminate. Falconi opened
the meeting by apologizing to those Ambassadors whom the MFA had
been unable to meet with individually, but said the public
attention the issue was receiving had prompted the MFA instead to
call quickly a joint meeting. He said he wanted to explain in
person the legal and policy reasons for the government's action,
the transition process, and to assure the affected Missions that
foreign investment is not unprotected in Ecuador.
¶4. (SBU) Reinforcing what had been conveyed to the Ambassador on
October 26 by then Acting Foreign Minister Pozo (refA), Falconi
reiterated that the GoE was obligated under Ecuador's 2008
Constitution to terminate any treaty that would submit the
Ecuadorian state to international arbitration in a dispute with a
private investor. He asserted that there was no other option.
Falconi also noted that constitutional provisions, and GoE policy,
require that foreign direct investment be in alignment with
Ecuador's National Development Plan.
¶5. (SBU) Falconi took pains to emphasize that foreign investment
was protected in Ecuador, not only through bilateral investment
treaties, but by Ecuador's Constitution and legal framework. Under
the Constitution, legal security -- even for investment -- was
considered a human right and arbitration was recognized as a valid
mechanism for dispute resolution, as long as it was conducted in a
national or regional forum. He asserted that Ecuador was
supportive of foreign investment, but that the country was now
applying an alternative model in which it was seeking social
justice. Falconi claimed that under the new model, Ecuador had
already received important foreign investments from China
(hydro-electrical project financed by China, ref C) and Venezuela.
Assembly Approval Expected
¶6. (C) On the process and timing of BIT termination, Falconi said
the National Assembly would make a pronouncement within 15 days on
President Correa's request for approval to terminate the BITs. He
appeared confident that the Assembly's approval would be
forthcoming. (Note: National Assembly President Cordero expressed
some misgivings about terminating the BITs in a November 6 meeting
with the Ambassador (ref B). End note.) An inter-ministerial
group is developing a new model investment agreement which they
hope to complete soon. Through its new investment model, Falconi
said the GoE seeks to balance the interests of the investor and the
regulatory role of the State. He emphasized that the GoE wants to
promote investment, but that private foreign investment was viewed
as "complementary" to State investment (Constitution Art. 339).
Decision - Part of Longtime Policy Review
¶7. (SBU) In order to provide context for the GoE's actions,
Falconi outlined events leading up to Correa's letter to the
Assembly. Falconi said review of the country's investment policies
began before the Correa Administration, noting the work of a COMEXI
advisory council in 2004 to analyze the commercial and policy
impacts of the country's existing BITs. In 2007, a report found
little correlation between the existence of a BIT and decisions
made by investors. Accordng to Falconi, the report concluded that
issues such as taxation, market size, labor laws, political
stability and legal security were instead the major determinants of
investment decisions.
¶8. (SBU) Falconi noted that in 2008 the GoE terminated without
fanfare nine BITs, which they had determined had not produced
significant investment flows. Later that year, the GoE decided to
suspend negotiation of new BITs until a policy was better defined.
In October 2008, Ecuador's new Constitution was approved. In
February 2009, Ecuador's Foreign Trade Council (COMEXI) issued
Resolution 474 which directed the MFA to renegotiate the country's
BITs, prompting President Correa's letter to the Assembly in
September. In July 2009, Ecuador withdrew from the World Bank
International Center for Settlement of Disputes (ICSID) with the
aim of maintaining Ecuador's sovereignty and achieving impartiality
in the settlement of disputes, according to Minister Falconi.
Falconi explained that BITs with Spain, Italy, Peru and Bolivia
were not being terminated because the terms of those treaties do
not allow termination at this time.
More Details from MFA Advisor
¶9. (SBU) Minister Falconi then turned the meeting over to MFA
legal advisor, Marco Abuja, and departed. Abuja claimed the
administration was working with urgency on its plan to renegotiate
all the investment treaties out of concern that the existing
treaties are vulnerable to a constitutional challenge that could
render them null and void. On this point, the EU representative
expressed concern that the Constitution, a document limited to
internal affairs, could be used to void an international treaty.
While noting respect for Ecuador's sovereignty, he opined that
provisions of the Constitution represent internal issues and should
not affect bilateral treaties.
¶10. (SBU) With regard to international arbitration, Abuja stated
that Article 422 of Ecuador's Constitution does not permit Ecuador
to enter into international agreements in which the State would be
subject to rulings by international dispute settlement bodies in
State-investor disputes. According to Abuja, the Constitution
requires that State-investor disputes only be heard before national
or regional dispute settlement bodies. Ecuador aims to develop a
new arbitration mechanism that guarantees equity and equal
conditions for all parties within UNASUR or ALBA. Abuja also
mentioned that the Organization of American States (OAS) is
considering the establishment of a dispute settlement body in
Central America or the Caribbean. Abuja noted that the
restriction regarding international arbitration did not apply in
cases of State-State disputes. After Abuja's presentation, the
Canadian ambassador commented that Canadian investors were very
concerned with the GoE's decision and pointed out that it would be
impossible to negotiate a new investment agreement calling for
regional arbitration when these regional dispute settlement bodies
do not yet even exist. The German ambassador challenged Abuja's
interpretation of Article 422 claiming that even regional
arbitration did not appear to extend to nationals that were not
citizens within Latin American. Abuja claimed that the GoE
interpretation of the article was that it applied to investors of
any nationality. (Note, the EU representative affirmed during the
meeting that any new investment agreement would be negotiated
between Ecuador and the EU, rather than with individual EU member
states.)
Timing
¶11. (SBU) Abuja said the MFA plans to terminate (provide written
notification of intent to terminate) the BITs in January 2010 and
then immediately start negotiations on the new investment
agreements. He also described the GoE's view of the relationship
between the new investment agreements it hopes to negotiate and the
existing BITs, which all have provisions that extend protection for
existing investments for a number of years beyond termination. He
described as a "transition period" the time from the GoE's
notification of termination of an existing BIT until a new
investment agreement was negotiated and in force. From the GoE's
perspective, the new investment agreement would replace the BIT,
rendering it and its international arbitration provisions void. In
other words, under the MFA's scenario, the existing BITs would not
be applied for the 10-15 years after termination stipulated in the
treaties, but only until a new agreement is concluded. The MFA
encouraged countries to quickly negotiate new investment agreements
in order to avoid a lapse in coverage for new investments.
Arbitration and National Treatment
¶12. (SBU) Abuja detailed the GoE's concerns with, and the
perceived weaknesses of, current international dispute resolution
mechanisms. From the GoE's perspective, international arbitration
permits legal challenges to Ecuador's public policies in fora
outside Ecuador's national jurisdiction, contrary to what is
permitted under Ecuador's 2008 Constitution. International
arbitration processes are not transparent and do not provide public
access to documents in the cases. Furthermore, ICSID rulings are
in violation of Ecuador's Constitution in the sense that they are
final, without any possibility of annulment by another authority.
Finally, ICSID does not consider Ecuador's Constitution as a
fundamental norm for its rulings. Abuja noted that most of
Ecuador's current BITs specifically identify ICSID as the relevant
dispute settlement body.
¶13. (SBU) Abuja said "national treatment" provisions would also
be eliminated in the new investment agreements envisioned by the
GoE. As justification, Abuja argued that the principle of
"national treatment" actually places local investors at a
disadvantage. He explained that international dispute resolution
bodies allow foreign investors to take their cases directly to
ICSID, while local investors must follow the administrative
procedures in local courts. Abuja also stated that the
administration wants to be able to give preference to local
investors in certain sectors.
New Arbitration Mechanisms
¶14. (SBU) Abuja outlined aspects of the new regional
arbitration bodies being considered by UNASUR, ALBA and the OAS,
such as: application of arbitration procedures only after all
administrative instances have been exhausted; minimal costs;
resolution period of 12 months maximum; public list of arbitrators;
and annulment possible by a superior authority. From the GoE's
perspective, in evaluating investment dispute claims, new concepts
should be considered, such as: standards related to the
pre-establishment of investment, environmental impact,
post-establishment of investment, and the defense of human rights;
the fulfillment of National Development Plan objectives; corporate
social responsibility; and anticorruption norms.
Comment
¶15. (C) Although the GoE may find it convenient to claim that
prior administrations were responsible for initiating the review
process that has led the government to seek termination of its
bilateral investment treaties, the Constitution, the primary
justification for termination of the BITs, is the undisputed child
of the Correa administration. The determinant provisions of the
Constitution reflect the ideology and priorities of this
government. Therefore, there is little internal impetus for the
GoE to seek alternative ways of dealing with the implications of
the new Constitution regarding foreign investment. There may be a
window of opportunity in which the USG and like-minded countries
can reason with the GoE regarding the negative repercussions that
are likely should they follow through with their plan. While
termination of the BITs is not yet a done deal, we suspect that in
the end the GoE will get approval from the National Assembly and
move forward with termination of the BITs, and its efforts to
negotiate new investment agreements. At that point, the USG will
have to decide whether it is preferable to maintain the existing
BIT through its termination phase plus ten years protection for
existing investment, or consider the GoE's offer to negotiate a new
agreement on their terms.
CHRITTON
=======================CABLE ENDS============================