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Every BIT helps

WHEN evaluating suitable jurisdictions for foreign direct investment, resources companies should ...

Michael Cairnduff
Every BIT helps

The World Bank Group's Multilateral Investment Guarantee Agency emissary Colin Roberts broadcast a loud and clear message to people looking at pursuing projects in developing countries: research risk versus reward and plan for the worst.

"My advice is speak to other investors, have a meal or beer with someone that is already there and you will learn so much more than any report can tell you," Roberts said.

In addition to assessing the experience of your peers, Roberts suggested doing extensive research on the chosen country's track record with foreign direct investment, including whether it is a signatory to either the Washington or New York agreements.

He said it was also very important to evaluate all relevant regulatory and legal frameworks, not simply the mining act, but also general investment and corporate policies.

"If we are making an investment in a mining or petroleum project, we expect that project to go on for 20 years and in some developing countries that might mean surviving 20 or more different governments," Roberts said.

And it is for this reason he strongly suggested listed resources companies should seek a bilateral investment treaty (BIT) to provide, among other things, a fair and reasonable dispute resolution mechanism if it all went wrong.

Things that go wrong can include civil war and terrorism; normal economic risks, including exchange transfer; sabotage; sovereign non-payment; expropriation or cancelation of licence to operate; and governance risks, including taxation and corruption.

"BITs give legal rights to companies in regard to sovereign rights," he said.

“Most treaties promise fair payment in the result of expropriation or creeping expropriation, like licence restrictions or cancellation.

"Does the state have the right to expropriate? Well, yes, it does."

The question of what is appropriate, the investment made to date, the opportunity cost as well as where the dispute is going to be here and under what law will often influence outcomes for companies compared to having it heard in the host state.

This is a key benefit of a BIT signed between a sovereign state and a listed company.

If heard in national court, even if you win there is no certainty you will be paid.

If heard in international court it is enforceable wherever a state has come out into the commercial market place, for example, but states tend to pay up particularly when agreement is underwritten by the World Bank.

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