By Kinda Mohamadieh
GENEVA, Apr 6 2015 (IPS)

The world’s attention turned to the practices of vulture funds after the U.S. Supreme Court affirmed a lower court opinion in the NML Capital vs Argentina case, which forbids the country from making payments on its restructured debt.

Argentina had defaulted in 2001 and went through two rounds of negotiations to restructure its debt, both in 2005 and 2010. In June 2014, the court ordered Argentina to pay the ‘vulture funds’ that held out and did not accept the terms of the debt swaps.

Kinda Mohamadieh

The vulture funds had held out with the aim of achieving what amounts to a 1,600 percent return on their original investment. The funds concerned had purchased the Argentinian bonds in 2008 at 48 million dollars and the court ruling ordered Argentina to pay them 832 million dollars.

Nobel laureate Joseph Stiglitz noted that this was “the first time in history that a country was willing and able to pay its creditors, but was blocked by a judge from doing so”.

While this case brought the term ‘vulture funds’ into the public sphere, the predatory practices of these entities did not start with Argentina.

According to a former U.N. independent expert on the effects of foreign debt and other related financial obligations of states on the full enjoyment of all human rights, the term ‘vulture funds’ describes “private commercial entities that acquire, either by purchase, assignments or some other form of transaction, defaulted or distressed debts, and sometimes actual court judgments, with the aim of achieving higher returns.”

Basically, vulture funds are hedge funds whose modus operandi focuses on three main steps including: (1) purchasing distressed debt on the secondary market at deep discounts far less than its face value; (2) refusing to participate in restructuring agreements with the indebted state; and (3) pursuing full value of the debt often at face value plus interest, arrears and penalties, including through litigation, seizure of assets or penalties.“The African Development Bank has reported that at least twenty heavily indebted poor countries have been threatened with or have been subjected to legal actions by commercial creditors and vulture funds since 1999”

Many developing countries have been exposed to the predatory practices of vulture funds, especially African and Latin American countries.

The African Development Bank has reported that at least twenty heavily indebted poor countries have been threatened with or have been subjected to legal actions by commercial creditors and vulture funds since 1999. These countries include Sierra Leone, Cote d’Ivoire, Burkina Faso, as well as Angola, Cameroon, Congo, Democratic Republic of the Congo, Ethiopia, Liberia, Madagascar, Mozambique, Niger, Sao Tome and Principe, Tanzania, and Uganda.

Peru was targeted by NML Capital in the year 2000. According to media reports, the fund spent almost four years in the courts to win a ruling that forced Peru to settle for almost 56 million dollars on distressed debt, which the fund had initially bought for 11.8 million dollars.

The African Development Bank has documented that up until the year 2007, 25 judgments in favour of vulture funds had yielded nearly one billion dollars. Out of this amount, 72 percent of the judgments have been against African countries. The reported number of outstanding cases against debtor countries has doubled since 2004.

According to the World Bank and the International Monetary Fund (IMF), 54 court cases were instituted against 12 heavily indebted poor countries between 1998 and 2008. The IMF estimates that in some cases claims by vulture funds constitute as much as 12 to 13 percent of a country’s gross domestic product.  The World Bank estimates that nearly one-third of countries that are eligible for debt relief and other poverty alleviation programmes are the targets of nearly 26 vulture funds.

Concerned about the extent of the threat posed by such predatory practices and their systemic implications, several international authorities and multilateral institutions have voiced their concern about the matter.

The African Development Bank has warned that by precluding debt relief and costing millions in legal expenses, these vulture funds undermine the development of the most vulnerable African countries.

In June 2014, the heads of state and government of the Group of 77 and China, in their declaration issued on the occasion of the ‘For a New World Order for Living Well’ summit held in Santa Cruz de la Sierra, Bolivia, reiterated the importance of “not allowing vulture funds to paralyse the debt restructuring efforts of developing countries” and stressed that “these funds should not supersede the state’s right to protect its people under international law.”

The IMF had cautioned that upholding the decision against Argentina would harm future sovereign debt restructuring attempts. In 2013, the IMF stated that “if upheld, [the Court of Appeals decision] would likely give hold-out creditors greater leverage and make the debt restructuring process more complicated”.

In 2007, G8 finance ministers had expressed concern about actions of some litigating creditors against heavily indebted poor countries, and agreed to work together to identify measures to tackle this problem based on the work of the Paris Club.

In September 2014, a resolution on the activities of vulture funds and the effects of foreign debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social and cultural rights, was presented by Argentina and adopted at the 27^th session of the U.N. Human Rights Council which took place in Geneva.

It is also worth noting that the 26^th session of the Human Rights Council in June 2014 had adopted a resolution titled ‘Elaboration of an international legally binding instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights’.

This resolution sets in place a process of negotiations towards an international legally binding instrument on transnational corporations and their liability in the area of human rights. (END/IPS COLUMNIST SERVICE)

Edited by Phil Harris   

The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, IPS – Inter Press Service. 

* This column is based on a longer version published in published in the South Centre’s South Bulletin 83 of 12 February 2015.

Excerpt:

Workers arrive early in the morning at the One World Apparel factory in Port-au-Prince to assemble garments for export from Haiti. Credit: Ansel Herz/IPS

By Carey L. Biron
WASHINGTON, Aug 26 2014 (IPS)

Civil society groups from several continents are stepping up a campaign urging the World Bank to strengthen a series of changes currently being made to a major annual report on countries’ business-friendliness.

The World Bank is in the final stages of a years-long update to its Doing Business report, one of the Washington-based development institution’s most influential analyses yet one that has also become increasingly controversial. Critics now say the first round of changes, slated to go into effect in October, don’t go far enough."It’s a public relations exercise but with reasonably solid metrics behind it, and it’s the joining of these two things that makes Doing Business valuable in the policy world.” -- Scott Morris of the Center for Global Development

On Monday, a coalition of 18 development groups, watchdog organisations and trade unions called on the World Bank Group to take “urgent action” to implement “significant changes” to the Doing Business reforms. In particular, they are asking the bank to adhere more closely to detailed recommendations made last year by a bank-commissioned external review panel chaired by Trevor Manuel, a former planning and finance minister for South Africa.

“It looks like the flaws found by the Independent Panel chaired by Trevor Manuel will be ignored and its recommendations are nowhere close to being implemented,” Aldo Caliari, director of the Rethinking Bretton Woods Project at the Center of Concern, a Catholic think tank here, told IPS. “This is in spite of a wide chorus of civil society organisations and shareholders that supported them.”

While the World Bank’s mission is to fight global poverty, Caliari and others dispute whether the Doing Business report’s metrics are pertinent to poor communities. Others say they can be outright detrimental.

Both civil society investigations and the Manuel commission have suggested “how little relevance the areas and indicators have to the reforms that matter to small and medium companies in developing countries,” Caliari says. “They seem far more oriented to support operations of large transnationals in those countries.”

Such concerns stem from the outsized influence that the Doing Business report has built up, particularly in the developing world, since it was introduced in 2003. Reportedly, the report is used by some 85 percent of global policymakers.

The core of the report remains a simple aggregated ranking of countries, known as the Ease of Doing Business index. While based on a complex series of business-friendliness metrics, the high profile of the index results has inevitably led governments to compete among one another to raise their country’s ranking and, hopefully, strengthen foreign investment.

Yet a direct effect of this competition, critics say, is governments being pushed to adhere to a uniform set of policy recommendations. These include lowering taxes and wages and weakening overall industry regulation, thus potentially endangering the poor.

“[T]he report’s role is to inform policy, not to outline a normative position, which the rankings do,” the 18 groups wrote to World Bank Group President Jim Kim at the end of July. “Doing Business needs to become better aligned with moves towards greater country-owned and led development and an appreciation of the importance of a country’s circumstances, stage of development and political choices.”

In its report last June, the Manuel commission likewise urged the bank to drop the ranking system entirely, noting that this constituted “the most important decision the Bank faces with regard to the Doing Business report.”

Maintained but reformed

In response, the bank is reforming the methodology behind its ranking calculations. In part, this includes broadening its analysis to use data from two cities in most countries, rather than just one.

More broadly, the new calculations will constitute an effort simultaneously to continue to offer a relative score for each country but also to decrease the importance of the specific ranking.

“This approach will provide users with additional information by showing the relative distances between economies in the ranking tables,” an announcement on the changes stated in April. (The bank was unable to provide additional comment by this story’s deadline.)

“By highlighting where economies’ scores are close, the new approach will reduce the importance of difference in rankings,” the announcement continues. “And by revealing where distances between scores are relatively greater, it will give credit to governments that are reforming but not yet seeing changes in rankings.”

Some development scholars have pushed against the Manuel commission’s recommendations on the index, defending the need for the bank to maintain its aggregate rankings in some form.

“The Doing Business report isn’t a research exercise – it’s a policymaking tool. Because of the rankings it has a unique value, particularly for those countries that have a long way to go on economic reform,” Scott Morris, a senior associate at the Center for Global Development, a think tank here, told IPS after the Manuel commission’s report was published.

“Internally, it gives government officials something simple and targeted to latch onto, much more than a 500-page report would do. It’s a public relations exercise but with reasonably solid metrics behind it, and it’s the joining of these two things that makes Doing Business valuable in the policy world.”

Decent jobs created?

Yet others warn that the rankings themselves continue to be problematic, even in their new form.

The reforms are “not satisfactory, as the rankings will continue to influence the policy agenda of many developing countries despite their methodological flaws,” Tiago Stichelmans, a policy and networking analyst at the European Network on Debt and Development, told IPS in an e-mail.

“The problem of the rankings is the fact that they are based on regulatory measures in a single city (which is due to become two cities) for every country and are therefore irrelevant to many communities. The rankings also have a bias in favour of deregulatory measures that have limited impact on development.”

Of course, many would support the idea of tracking country-by-country policies aimed at encouraging industry to help bolster development metrics. But Stichelmans says this would require major changes, including a move away from the report’s current focus on reforms to the business environment.

“A shift from promoting low tax rates and labour deregulation to taxes paid, decent jobs created and [small and medium enterprises] supported would be a step in the right direction,” he says.

Ideas from NGOs have included indicators on corruption and human rights due diligence, Stichelmans continues, “but this must be accompanied by a drastic overhaul.”

For now, some of the newly announced changes are expected to be incorporated into the Doing Business report for 2015, slated to be released in late October. Other reforms, including some yet to be announced, will be introduced in future reports.

Edited by: Kitty Stapp

The writer can be reached at cbiron@ips.org

India’s decisive stand last week not to adopt the protocol of amendment of the trade facilitation agreement (TFA) unless credible rules were in place for the development issues of the South was met with  “astonishment” and “dismay” by trade diplomats from the North, who described New Delhi’s as “hostage-taking” and “suicidal”. 

It obviously came as something of a shock for representatives of Northern interests that any party should have the brass neck to place the interests of its constituents on the negotiating table.

After all, why should such banal issues as food security and poverty get in the way of a trade agenda heavily weighted in favour of the industrialised countries?New Delhi was demanding nothing more than credible global trade rules to ensure that “development,” including the challenges of poverty, in the countries of the South take precedence over the cut-throat mercantile business interests of the transnational corporations in the North

In fact, it was India’s firm stand for permanent guarantees for public stockholding programmes for food security that turned this trade agenda upside down at the World Trade Organization (WTO) last week, putting paid to the adoption of the protocol of amendment for implementation of the contested TFA for the time being.

India and the United States failed Thursday at the WTO to reach agreement on construction of a legally binding decision on a “permanent peace clause” that would further strengthen what was decided for public distribution programmes for food security in developing countries at the ninth ministerial meeting in Bali, Indonesia, last year.

The Bali decision on food security was one of the nine non-binding best endeavour outcomes agreed by trade ministers on agriculture and development.

For industrialised and leading economic tigers in the developing world, the TFA – which would harmonise customs procedures in the developing world on a par with the industrialised countries – is a major mechanism for market access into the developing and poorest countries.

The failure to reach agreement came during a closed-door meeting between India and the United States organised by WTO Director-General Roberto Azevedo in an attempt to break the impasse between the world’s two largest democracies.

New Delhi was demanding nothing more than credible global trade rules to ensure that “development,” including the challenges of poverty, in the countries of the South take precedence over the cut-throat mercantile business interests of the transnational corporations in the North.

Trade diplomats from several developing and poorest countries in Africa, South America, and Asia say India’s “uncompromising” stance will force countries of the North to return to the negotiating table to address the neglected issues in the Bali package concerning agriculture and development.

These issues are at the heart of unfinished business in the Doha Development Agenda (DDA) negotiations, the current round of trade negotiations aimed at further liberalising trade.

“It is important to keep the battle alive and India has ensured that the big boys cannot simply walk away with the trade facilitation agreement (TFA) without addressing the concerns on food security and other major issues,” one African official said.

The industrialised countries and some rising economic tigers in the developing world are unhappy that they cannot now take home the TFA without addressing the problem raised by India and other developmental issues in the Doha Development Agenda negotiations.

Many developing and poor countries in Africa and elsewhere were opposed to the TFA but they were “arm-twisted” and “muzzled” by the leading super powers over the last three months. African countries, for example, were forced to change their stand after pressure from the United States, the European Union and other countries.

The TFA was sold on false promises that it would add anywhere up 1 trillion dollars to the world economy. During the Bali meeting last year, the Economist of London, for example, gave two different estimates – 64 billion dollars and 400 billion dollars – as gains from the TFA, while the International Chamber of Commerce gave an astronomical figure of 1 trillion dollars without any rational basis.

“Those predicted gains [from TFA] evaporate when one looks at the assumptions behind them, such as the assumption that all countries in the world would gain the same amount of income from a given increase in exports,” said Timothy A. Wise and Jeronim Capaldo, two academics from the Global Environment and Development Institute at the U.S. Tufts University.

At one go, the TFA will provide market access for companies such as Apple, General Electric, Caterpillar, UPS, Pfizer, Samsung, Sony, Ericsson, e-Bay, Hyundai, Huawei and Lenova to multiply their exports to the poorest countries.

It would drive away scarce resources for addressing bread-and-butter issues in the poor countries and direct them towards creating costly trade-related infrastructure for the sake of exporters in the industrialised world.

Here are ten reasons why trade diplomats from the developing and poorest countries say India’s stand will bolster their development agenda:

1.  India’s stand on food security brings agriculture, particularly unfinished business in the DDA negotiations, back to centre-stage.

2.  The Doha trade negotiations were to have been concluded by 2005 but remain stalled because a major industrialised country put too many spanners in the negotiating wheel.

3.  Major industrialised countries have been cherry-picking issues from the DDA which are of interest to them while giving short shrift to core “developmental” issues.

4.  Issues agreed in the Doha negotiations, such as the ”July package” agreed on August 1, 2004, the Hong Kong  Ministerial Declaration of December 2005 and the un-bracketed understandings of the December 2008 Fourth Revised Draft Modalities for Agriculture, have all been pushed to the back burner because one major country does not want to live up to them.

5.  The Fourth Revised Draft Modalities for Agriculture provided an explicit footnote to enable the developing countries to continue with their public stockholding programmes for food security. That footnote was the result of sustained negotiations and a compromise solution among key WTO members such as the United States, the European Union, India, Brazil, Australia and China, but the United States refused to accept the footnote because of opposition from its powerful farm lobbies.

6.  Trade-distorting practices in cotton which are harming producers in Benin, Burkina Faso, Mali and Chad are supposed to be addressed “ambitiously”, “expeditiously” and “specifically” by the distorting countries in the North. But cotton is now being swept under carpet because a major industrialised country does not want to address the issue because of its farm programme.

7.  Trade facilitation was one of the Doha issues but not the main item of the agenda at all.  It was actually dropped from the Doha agenda in Cancun, Mexico, in 2003 and was brought back in 2004 due to pressure from the United States and the European Union. The core issues of the Doha agenda were agriculture, services and developmental flexibilities.

8.  A major industrialised country which pocketed several gains during the negotiations refuses to engage in “give-and-take” negotiations based on the above mandates and has turned the Doha Round upside down.

9.  Industrialised countries along with some developing countries have formed a coalition of countries willing to pursue what are called “plurilateral” negotiations, only to undermine the DDA negotiations which are multilateral and based on what is called a “single undertaking” (that is, nothing is agreed until everything is agreed). Currently, these countries are negotiating among themselves on services, expansion of information technology products and environmental goods even though these issues are being negotiated in the Doha Round.

10.  Delay in the adoption of protocol will pave way for a healthy debate to reinvigorate the multilateral trading system which is being undermined by those who created it in 1948. The developing and poor countries want credible and balanced multilateral trading rules to replace what was agreed over 25 years ago in order to continue their “developmental” programmes with a human face.

Herein lies the crux of the issue – are the major powers of the North prepared to go along with a global trading system that puts the interests of the majority of the world’s people before their own interests?

(Edited by Phil Harris)

For many months, the Transatlantic Trade and Investment Partnership (TTIP) debates between the European Commission (EC) and the U.S. government were a matter for insiders.

In July 2013, government officials and representatives of international corporations agreed behind closed doors that such a free trade agreement (FTA) would be a great step forward towards homogenising social, environmental, health, industrial, and labour standards across the Atlantic Ocean.

Until recently, only a handful of civil society organisations, mostly based in Brussels, questioned the wisdom of such an agreement, and revealed the secret dealings of governments, in particular those referring to the so-called ‘investor protection clauses’ and the downgrading of social and environmental standards in Europe, to the detriment of European consumers and parliaments.

But, under pressure from civil society groups, the EC agreed earlier this year to launch a process of public consultation on the TTIP. And, since early May, after demonstrations by numerous consumer, environmental protection and labour groups, the TTIP has become a theme debated across society, and criticism of the way the EC and the U.S. government, in close cooperation with corporate lobbyist groups, have managed the secret negotiations is now general.Criticism of the way the EC and the U.S. government, in close cooperation with corporate lobbyist groups, have managed the secret negotiations is now general

By early May, some 500,000 people in Germany alone had signed a petition against the TTIP, complaining that the agreement would “undermine democracy and the rule of law… endanger our health… and (would be) practically irreversible.”

Even sectors of governments have become outspoken critics of the TTIP. During a conference on the TTIP held in Berlin on May 20, the German Minister of State for Culture and Media, Monika Gruetters, said: “We Europeans have plenty to lose,”  if the FTA with the United States were to forbid state subsidies for theatre, music, public radio, and cinema production.

Gruetters even used a slogan typical of anti-globalisation activists, by saying that “culture is not a commodity.” That’s why, Gruetters explained, European states subsidise cultural production, “to permit arts to be critical, complex, (and) heterogeneous.”

However, she said, for the U.S. government such subsidies are “protectionist measures.” To confirm this view, Gruetters quoted a “recent conversation” she had with the U.S. ambassador to Berlin, John B. Emerson.

“State privileges for cultural production belong to the European self-conception,” Gruetters insisted. “We oppose a new deregulation of culture (as demanded by the TTIP) because we are afraid we would lose our unique cultural landscape.”

German Minister for Economic Affairs and Energy, Sigmar Gabriel, has also adopted the critical position of civil society groups against the investor protection clause that makes up the bulk of the TTIP. According to this clause, transnational corporations would be allowed to challenge national labour, health, environmental and other standards before non-governmental tribunals.

The deliberations of such tribunals are secret and their verdicts are definitive and cannot be appealed against.

Pia Eberhardt, expert for trade and investment at the Corporate Europe Observatory (CEO), says that transnational companies around the world “are using such clauses contained in practically all FTAs to claim compensations for perfectly legitimate government policies to protect health, the environment and other public interests – because they claim these policies have the indirect effect of undermining corporate profits.”

The Brussels-based CEO, an anti-lobbying watchdog organisation, is one of the leading civil society groups questioning the TTIP. It has forced the European Commission to reveal secret protocols of the deliberations between European and U.S. government officials, and has also shown that the EC most of the time adopts the positions presented by industrial lobbyists as its own.

A typical example of such corporate actions against states is the ongoing lawsuit that U.S. tobacco company Philip Morris, based in Switzerland, launched in 2010 against Uruguay. Philip Morris is demanding two billion dollars as compensation for alleged economic losses from Uruguay, claiming that the South-American country’s anti-smoking legislation devalues its cigarette trademarks and investments.

In a similar case, the oil and gas company Lone Pine Resources is suing the Canadian government for 250 million dollars for, as the company’s lawsuit puts it, the “arbitrary, capricious and illegal revocation of (Oil Pine Resources’) valuable right to mine for oil and gas under the Saint Lawrence River.”

In 2012, Quebec’s regional government suspended fracking, the controversial method to exploit shale gas fields. According to Lone Pine Resources, the measure violates Chapter Eleven of the North American FTA.

For civil society groups in Canada, such a lawsuit is “outrageous”.

“Based on the principle of precaution, Quebec government’s response to the concerns of its population is appropriate and legitimate,” said Martine Châtelain, president of Eau Secours!, the Quebec-based coalition for a responsible management of water. “No companies should be allowed to sue a State when it implements sovereign measures to protect water and the common goods for the sake of our ecosystems and the health of our peoples.”

For Maritta Strasser, leading activist behind the German petition against the TTIP, the investor protection clauses are “a tool to blackmail legitimate governments and parliaments.”

Strasser’s fears are well founded. As a former Canadian government official has been quoted as saying, “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law. Virtually all of the new initiatives were targeted and most of them never saw the light of day.”

For Eberhardt of CEO, the law suits against governments prove that FTAs “create two different systems of justice. One, full of privileges for corporations, and another one for the rest of the society.”

Many consumer groups are also concerned that the TTIP would facilitate the import of U.S. food stuffs, that otherwise would not satisfy present European health standards, into the European Union, such as genetically modified agricultural products, or hormone- or chemically-treated meat and poultry.

By now, even for German Economic Affairs Minister Sigmar Gabriel, “it is unconceivable that an investor protection clause would annul German or European laws.” Gabriel also opposes non-governmental tribunals ruling over conflicts between governments and corporations.

“Both the United States and Europe are democratic state structures that guarantee the rule of law,” Gabriel said. There is no reason, then, “to allow special jurisdiction tribunals to rule over our laws and over our social, environmental and health standards.”

He also demands that from now on the negotiations between the EU and the U.S. government be “carried out in the most transparent way,” adding that “if the European Commission believes that it can leave the national parliaments out of the negotiations, than the TTIP will be a sound failure.”

This has not, however, dented European Trade Commissioner Karel de Gucht’s interpretation of the negotiations. “The U.S. government demands that the TTIP negations remain confidential and that the agreement contains an investor protection clause,” he told the German ZDF public television channel.

The result is that most of the protocols of the negotiations continued to be classified, as demanded by the U.S. government, and only private corporations and a restricted number of European government officials and members of the European Parliament have access to the documents.