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We, the undersigned civil society organisations from the 15 member countries* of the Regional  Comprehensive Economic Partnership (RCEP), call upon RCEP governments to continue to exclude  Investor-State Dispute Settlement (ISDS) from the RCEP. 

After strong civil society opposition and much public debate, governments agreed to exclude ISDS  from the RCEP, which came into force for all members by June 2023. However, there was a  commitment to “enter into discussions” of ISDS within two years of RCEP’s entry into force. There is  no timetable and no obligation to conclude discussions, and any decision would require consensus  from all governments. We understand that such discussions may commence soon. 

During the negotiations for the RCEP in August 2016, 94 civil society organisations wrote an open  letter to RCEP governments urging them to exclude ISDS from the agreement. The letter explained  that ISDS is a fundamentally unbalanced system that enables foreign investors to claim millions or  

even billions in compensation from governments if they can convince an international tribunal that a  change in law or policy would reduce their future profits and/or they were not consulted sufficiently  about it, even if the change was in the public interest. There were increasing numbers of ISDS cases  against laws protecting workers’ rights, public health and the environment, and awards of billions of  dollars which were especially damaging to low income countries. Governments were cancelling ISDS  arrangements because of its impact on their national finances and sovereignty. 

Today, as known ISDS cases have more than doubled to 1,401, there is even more public and  government resistance to ISDS and more evidence to support the permanent exclusion of ISDS from  the RCEP. There is no compelling evidence that agreements with ISDS result in increased Foreign  Direct Investment. There are increasing numbers of huge claims against developing, and even  developed, countries. In 2019, Pakistan had to pay $ US 5.8 billion to a mining company, which was  almost equivalent to an emergency loan from the International Monetary Fund to address Pakistan’s  economic crisis. 

More developing country governments are resisting ISDS arrangements. India, Indonesia, South  Africa and Ecuador have cancelled old investment agreements with ISDS. Brazil has never agreed to  ISDS. Capital exporting countries are now also resisting ISDS. Australia and New Zealand have policies  against ISDS. ISDS is a growing threat to the urgent government action needed to address climate  change. Increasing numbers of fossil fuel companies are using ISDS against government actions to  reduce carbon emissions. 

The European Union and the United Kingdom have withdrawn from the Energy Charter Treaty  because its ISDS provisions were being used by fossil fuel companies against government policies to  address climate change. 

A United Nations report has warned that ISDS is a major obstacle to addressing the climate change  crisis. The Organisation for Economic Co-operation and Development (OECD) has acknowledged that  ISDS is not aligned with the global transition to a sustainable, low-carbon economy and canvassed  options, including coordinated government withdrawals from ISDS arrangements. 

The current global trend of competition to secure critical mineral supplies for green energy transition  is pushing for the expansion of mining investment into mineral-rich countries. ASEAN is well endowed with critical mineral resources, and most of the members have intensified their efforts to  process these minerals to add value, rather than export raw materials. Certainly, it will consolidate 

the role of multinational corporations as key investors who are likely to push for more investment  protection rules. This dynamic may, in turn, spur major mining multinationals to engage in lobbying  efforts, aiming to incorporate the ISDS mechanism into the RCEP review process, particularly in the  context of mounting resource nationalism practices in mineral-rich developing countries. Foreign  mining companies’ lawsuits against Indonesia’s policy ban on raw materials exports are a concrete  example of why ASEAN Governments should avoid the ISDS Mechanism. 

Amid the current economic turmoil caused by the US Trump administration’s application of unilateral  tariffs, RECP governments should not add the additional risk of possible ISDS cases. 

Given the overwhelming evidence against ISDS, we call on all RCEP governments to continue to  exclude ISDS from the RCEP. 

* The RCEP signatories are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines,  Singapore, Thailand, Viet Nam, Australia, China, Japan, Korea, and New Zealand. 

List of endorsing organisations 

National organisations from RCEP countries 

Aotearoa New Zealand

  • Greenpeace Aotearoa
  • Coromandel Watchdog of Hauraki Incorporated
  • New Zealand Council of Trade Unions Te Kauae Kaimahi
  • Campaign Against Foreign Control of Aotearoa
  • Environment and Conservation Organisations of NZ Inc
  • Endangered Species Foundation of New Zealand
  • Extinction Rebellion Tāmaki Makaurau

Australia

  • Australian Fair Trade and Investment Network
  • Combined Retired Union Members Association
  • Pax Christi Australia
  • Missionaries of the Sacred Heart Justice and Peace Centre
  • ActionAid Australia
  • Catholics in Coalition for Justice and Peace
  • Australian Nursing & Midwifery Federation
  • Migrante Australia in New South Wales
  • Union Aid Abroad–APHEDA
  • GeneEthics
  • Reconciliation for Western Sydney
  • Electrical Trades Union
  • Uniting Church in Australia, Synod of Victoria and Tasmania
  • Sutherland Shire Environment Centre
  • Oxfam Australia
  • The Alliance for Responsible Mining Regulation
  • Jubilee Australia Research Centre
  • UnionsWA
  • Aid/Watch
  • New South Wales Retired Teachers’ Association
  • SEARCH Foundation
  • Friends of the Earth Australia
  • The Wilderness Society (Australia)
  • Maritime Union of Australia
  • Currie Country Social Change Indigenous Organisation

Cambodia

  • Social Action for Community and Development (SACD)

Indonesia

  • Indonesia for Global Justice
  • Federasi Perjuangan Buruh Indonesia
  • Kesatuan Perjuangan Rakyat Indonesia
  • Puanifesto Indonesia
  • Indonesia Aids Coalition
  • Serikat Petani Indonesia
  • Koalisi Rakyat untuk Keadilan Perikanan (KIARA)
  • Resistance and Alternatives to Globalization (RAG)
  • Sahita Institute
  • Perkumpulan INISIATIF
  • FIAN Indonesia
  • Publish What You Pay (PWYP) Indonesia
  • Koalisi Rakyat untuk Hak atas Air (KRuHA) / People’s Coalition for the Right to Water
  • Konfederasi Serikat Buruh Seluruh Indonesia

Malaysia

  • Consumers’ Association of Penang
  • Forum Kedaulatan Makanan Malaysia (FKMM)
  • Positive Malaysian Treatment Access & Advocacy Group (MTAAG+)
  • Sahabat Alam Malaysia (Friends of the Earth)

Myanmar

  • Karen Environmental and Social Action Network (KESAN)

Philippines

  • Alyansa Tigil Mina (Alliance to Stop Mining)
  • Kilusan Para sa Repormang Agraryo at Katarungang Panlipunan (KATARUNGAN)
  • Public Services Labor Independent Confederation (PSLINK)
  • IBON International
  • Freedom from Debt Coalition (FDC)
  • Sentro ng mga Nagkakaisa at Progresibong Manggagawa (SENTRO)
  • Trade Justice Pilipinas

Thailand

  • FTA Watch

 

International and regional organisations with members in RCEP countries 

  • Third World Network (TWN)
  • Focus on the Global South 
  • Transnational Institute 
  • Public Services International  
  • Peoples’ Health Movement  
  • International Association of People’s  Lawyers 
  • Oil Change International 
  • GRAIN 

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