1
Analytical and political concern with ‘extractivism’ has rapidly intensified over the last decade.2 Scholarly and activist concern with extractivism can be traced initially to Latin American political ecology/political economy analyses of economic models that involve the extraction of raw materials for export. In this context, the term ‘neo-extractivism’ has been used to describe the model of development adopted particularly in Bolivia and Ecuador in response to a ‘commodity supercycle’ or price boom between 2004–2014, where export earnings from expanding extractive frontiers have been used to fund redistributive social policy (Bowles and Veltmeyer, 2020). Notwithstanding the redistributive ambition underlying neo-extractivist social policy, the attendant expansion of resource frontiers has been accompanied by privatised and state-supported violence against land and environmental defenders (Orellana López, 2021) and the contamination of water sources, with particular impacts on Indigenous women (Rodriguez Fernandez, 2020).
Yet a concern with extractivism in academic literature is no longer centred on Latin America. For Marcus Kröger, ‘extractivism became the dominant political-economic model of many governments around the globe’ during the late 2000s, and extractivism here means ‘accelerated natural resource extraction’ (Kröger, 2020, 3–4). For Kröger, extractivism is still a model of rapid extraction that responded to a commodity price boom even if it can be found beyond Latin America. For other scholars, however, extractivism can be detached from a specific historical context and becomes an economic mode that ‘predated industrial capitalism’ (Bowles and Veltmeyer, 2020, 103), which ‘in its most literal sense, is the pursuit of primary resource extraction’ with a view to export (Grinspun and Mills, 2015, 133; Gago and Mezzadra, 2017, 576). Political ecologists concerned with resistance to fossil fuel extraction in Europe have identified contemporary forms of fracking and coal mining as extractivism, while also arguing that the ‘British imperial state has historically relied on extractivism in its colonies and at home’ (Brock, 2020, 2). Manifestos for degrowth
Perhaps this expansion of extractivism reflects a productive linguistic plasticity that allows coalitions of scholars and activists concerned with expanding fossil fuel extraction, dispossession of Indigenous people and peasants from their lands, and hybrid state–capital violence at the extractive frontier to foster global solidarities. But we may equally want to ask what do we mean—or more importantly, ‘take as given, leave unspoken—when we talk about extractivism? And just why are we talking about extractivism now?’ (Szeman and Wenzel, 2021, 506). Does the broader analytical conception of extractivism—especially the reduction of extractivism simply to resource extraction (sometimes) for export in any historical period—not undermine our ability to think about the global political economic structures and colonial dependencies through which contemporary extractive industries operate? Do some critics of extractivism perhaps ‘confuse technical system with mode of production, and from this confusion [do] they go on to associate extractivism with capitalism, forgetting that there are non-extractivist, industrial, societies that are completely capitalist’ (García Linera, 2013)—even if they are implicated in processes of resource-making and extraction elsewhere?4
In collapsing extractivism into either an ahistorical technical system or a transhistorical form of colonial domination, we may lose the opportunity to examine the different ways in which extractivism as ‘ruthless looting of the environment for the benefit of a distant few—in short, colonialism’ comes into awkward alignment with extractivism as ‘a developmentalist ideology of social welfare premised on the extraction of natural resources’ (Szeman and Wenzel, 2021, 507). To ask about these alignments is not in any way to minimise the
In particular, this chapter is concerned with resource extraction in contemporary Bangladesh. Specifically, it aims to show how extractive politics in Bangladesh hinge on conflicts between durable colonial forms of international investment law and the vestiges of the New International Economic Order (nieo) as they can be detected in legal and ‘resource nationalist’ activism in Dhaka. This resource nationalist activism, and the activism of public interest lawyers in Bangladesh, can be understood as speaking to one pole of extractivism: the postcolonial developmentalist ideology of social welfare that has been advocated by some in Latin America (García Linera, 2013), and subjected to significant criticism by those who see in this model an ‘evident albeit surprising’ siding of progressive national elites with extractive capital, against local communities (between 2004–2014’). As I show here, it is not always the case that national elites side with extractive capital (even if they do not necessarily side with local communities affected by resource extraction), and to understand their alignments we need to attend to the unfinished history of the nieo, and avoid dislocating the study of ‘global extractivisms’ from particular postcolonial histories. One particularly useful site for understanding how the durable remnants of the nieo come into conflict with international extractive capital is investor-state arbitration, and the final section of this chapter involves a sustained engagement with one particular dispute between Bangladesh and a foreign extractive industry corporation.
The chapter proceeds by first introducing the history of the New International Economic Order, its relationship to developmentalist models of resource extraction, and the need to attend to this history in order to understand global extractivisms more fully (Section 1.1). Subsequently, in Section 2, the landscape of resource exploration and extraction in Bangladesh is sketched out, and I introduce the forms of ‘resource nationalist’ opposition to foreign extractive industries that have been organised by middle-class professional activists in Dhaka, and highlight Bangladesh’s history of legal disputes with foreign extractive corporations. In Section 3, I turn to one particular case that reveals the relationship between colonial extractivism (the ruthless looting of the environment for the benefit of a distant few) and postcolonial extractivism (the developmentalist ideologies of social welfare that seek to keep the vestiges of the nieo alive): the case of Niko Resources and the Chhatak and Feni gas blowouts. In the conclusion, I argue that in order to understand the
Methodologically, the chapter draws on a series of interviews and participation in industry events conducted with engineers, geologists and lawyers working in the extractive industries in Dhaka in 2013, follow-up interviews in 2019, the analysis of Bangladeshi court filings and judgements, and ongoing conversations with members of groups including the Bangladesh Environmental Lawyers’ Association (bela) and National Committee to Protect Oil, Gas, Port-Power and Mineral Resources in Bangladesh (ncbd). Since the initial period of fieldwork in 2013, I have been following the progression of one particular case—Niko vs. Bangladesh—through the International Centre for the Settlement of Investment Disputes (icsid). This chapter thus draws on an analysis of the rulings made in iscid documents, as well as dissenting evaluations of those rulings in the international law literature. The final methodological strand running through this chapter is a focus on the intellectual biographies of key persons implicated in the Niko v. Bangladesh case, and their involvement in historical efforts to craft a New International Economic Order (nieo), as well as contemporary contributions to literature and practice in international investment law. These intellectual biographies and ‘scholactivist’ careers have provided the scaffolding through which to both historicise Niko v. Bangladesh in relation to the legacy of the nieo and durable colonial legal structures, and interrogate contemporary analysis of extractivism in relation to Niko v. Bangladesh set in historical context.
1.1 Extraction, Resource Sovereignty and the nieo
In 1974, the UN General Assembly adopted the Declaration on the Establishment of a New International Economic Order. Building on a number of previous resolutions, and on rights and demands articulated by the G77 and Non-Aligned Movement, the Declaration asserted the rights of newly independent, postcolonial, developing nations to determine their own form of economic organisation, to participate in international trade on an equitable footing, and to declare Permanent Sovereignty over Natural Resources (psnr). A later report to the United Nations General Assembly (unga) drafted by Georges Abi-Saab (unga, 1984) argued clearly that both the right to determine one’s own
The twail network emerged in the 1960s and 1970s among lawyers from newly independent postcolonial states concerned with challenging the notion that postcolonial states entered on an equal footing into an international legal order that was ‘universal’ or ‘legitimate’. twail scholars have argued that international law—especially international investment law—is a product of a European concern to ensure the right of colonising agents to carry out commerce and secure property ownership. As such, the sovereignty of ‘less civilised’ nations has long been treated as conditional, recognised only when it does not pose an impediment to the right of entities from the global North to trade (Anghie, 2004). More specifically, as TWAILers like s.k.b. Asante have argued, investment law has had a clear concern with protecting Northern property in ‘alien’ lands, and these norms were established ‘without [postcolonial nations’] participation and consent’ (Asante, 1988, 627). State responsibility has, through the decisions made by global North nations, without the participation of former colonies, been configured in international investment law as ‘primarily preoccupied with the protection of foreign investment against the legitimate sovereign interests of the host state’ (Asante, 1988).
The organisation of the G77 and Non-Aligned Movement created anxieties for transnational corporations operating in states keen to assert psnr or their right to nationalise where necessary for social welfare. These anxieties have been partially assuaged by the proliferation of Bilateral Investment Treaties (bits) since the 1960s. These treaties contain provisions for arbitration should it be found that host states are not doing their utmost to protect ‘alien property’, even if this comes at the expense of public interest regulation. While the number of bits signed in the 1960s was low (in the single figures apart from 1964–65), the 1970s oil shocks and Third World Debt crisis undermined the capacity of Southern states to push for the nieo and to resist Northern standards for protecting alien property (Asante, 1988, 591; Sornarajah, 2016, 1976).5
twail scholars have been unsurprisingly critical of theses bits and the isds system, arguing that the system means ‘the state is pressed to avoid measures that are needed to prevent poverty and encourage sustainable social development through distributive methods of taxation, environmental measures, and observance of human rights standards where those might impact on the foreign investors’ profits’ (Linarelli, Salomon and Sornarajah, 2018, 161). A number of Southern states have renegotiated bits in recent years, following concerns that public interest regulation designed to redress racial and economic injustice could be undermined (Mossallam, 2015), or following concerns that isds arbitration tribunals were making unfairly punitive awards. Even analytical legal scholars unconnected to twail have noted that there are plenty of ‘unreasoned awards [and] awards with only extremely succinct reasons’ where precedents are used selectively and unsystematically (Schultz, 2014, 636). The lack of an appeal mechanism or systematic use of precedent means that even where recently negotiated ‘balanced’ bits concerned with sustainable development are in force, ‘the ingrained tendency of the arbitrators’ is to interpret state liability in a narrow manner, prioritising alien property over developmental concerns (Sornarajah, 2020, 2). Arbitrators’ ingrained tendencies have resulted in an expansive interpretation of investors’ ‘legitimate expectations’, such that the protection of investors’ legitimate expectations (of profit, ongoing asset ownership) is no longer balanced against public interest regulation in many rulings (Ortino, 2022; see also Gilbert, 2020).
In the remainder of this chapter, I build on this review of the nieo, twail, and its relationship to contemporary investor-state dispute settlement and arbitral practice. In Section 2, I show that putative resource nationalist politics that does not reflect the concerns of those most directly affected by extractive
2 Energy Futures and the Afterlives of Extraction in Bangladesh
Bangladesh does not extract resources for export at any great scale. In fact, it is precisely the threat of exporting fossil fuels extracted from Bangladesh’s subsoil that has mobilised many so-called resource nationalist activists in the last two decades. As such, questions can be raised regarding how far an understanding of extractivism based on extracting raw materials for export (Grinspun and Mills, 2015) can be globalised in this case. Yet if extractivism speaks to situations in which expanded extractive frontiers are accompanied by threats to land and environmental defenders carried out in tandem by state and private security forces (Bowles and Veltmeyer, 2020; Orellana López, 2021), it can perhaps be identified in Bangladesh where a number of protestors and landowners have lost their lives protesting against coal mines and coal power plans in recent years (Gilbert and Khan, 2021). The political economy of resource extraction in Bangladesh has less, however, to do with extraction
Bangladesh’s export-oriented ready-made garments sector is frequently plagued by power outages and load-shedding, and multilateral investment banks have prioritised power infrastructure development given its saliency as a concern for potential investors in Bangladesh’s export-oriented industries. Historically, Bangladesh has been gas-dependent, following the first commercial discoveries in Titas (1957) and Chhatak (1959) during the Pakistan era. In 1961, a parastatal oil and gas development corporation was formed with Soviet assistance, and after Independence in 1971 this became Petrobangla (1974), which subsequently spun off an exploration wing, the Bangladesh Petroleum Exploration and Production Company Limited (bapex) in 1989. Between 1974 and 1977, the first Production Sharing Contracts (pscs) were written up in Bangladesh, under the auspices of constitutional architect and twail lawyer Kamal Hossain, based on the Indonesian template. pscs were established to deal with a central concern of the nieo and twail: the granting of concessions to extractive industry firms that allowed them to gain windfalls and pay minimal tax and royalties when commodity prices boomed (Hossain, 1979). This was a particular problem where favourable concessions had been granted during the colonial period, and the retrospective sovereignty of postcolonial states was not recognised, preventing renegotiation of these concessions (Anghie, 2004). The pscs also contained provisions for sale to the host state and non-market rates, and contractor contribution to national ‘capacity building’. At all times, resources remained vested in the Republic.
It was precisely the attempt of Southern states to renegotiate royalty and taxation rates following the commodities boom in the 2000s that led Northern political risk analysts to stoke anxieties about resource nationalism, and ‘resource-drunk’ politicians posing threats to alien property (Bremmer and Johnston, 2009, 150). The history of the nieo, the legal foundations for psnr (Abi-Saab, 2016; unga, 1984), and the possibility of Southern states legitimately curtailing the profitability of extractive operations for redistributive (or other developmental) purposes was rendered a non-question in this industry-academic discourse. In Bangladesh, while a number of multinationals established onshore gas operations in Sylhet, most notably Chevron (Gardner, 2012), exploration declined and effectively dried up after 2012. This was because of a provision in the 2012 psc that reversed investor-friendly terms from the 2008 psc, setting limits on the price at which Bangladesh would purchase gas from multinational producers, and prohibiting natural gas export (in 2008, prices were uncapped and export unrestricted). These progressive, developmental provisions were reversed yet again in 2016 following an exploration strike and
During this period of low to no exploration, and declining gas reserve estimates, successive Bangladeshi governments embarked, responding to World Bank advice, on a plan to provide quick-rental power plant contracts to make up for energy generation shortfalls and the forecast of declining gas availability. The result has been multiple contracts being awarded to firms close to the Awami League government since 2009, usd 744 million in subsidies being paid between 2008 and 2014 for importing fuel oil for this power plan, and massive capacity payments paid to power plants who cannot feed in to an inadequate transmission grid (Mirza, 2020). In the 2016 Power System Master Plan, Bangladesh, guided by Japan’s International Cooperation Agency (jica), set out plans to compensate for declining gas reserves by increasing domestic coal reliance from 0.7 to 11 megatonnes (Mt) per annum, and imported coal from 0 to 60 Mt per annum, though an upcoming Integrated Energy and Power Master Plan looks likely to make more room for renewables in the energy development strategy.
Energy experts and policymakers aligned with transnational extractive corporations in Bangladesh have often blamed the exploration strike in 2012 on ‘resource nationalist’ activists. Those activists, drawn mostly from professional and academic cadres in Dhaka, have also been criticised for supporting (domestically owned) extractive industry despite opposition from Indigenous and peasant communities impacted by planned resource extraction—appearing perhaps to be the developmentalist elites, who appear in many critiques of extractivism. Notwithstanding the gap between these elite activists’ concerns and those of the dispossessed (or soon-to-be-dispossessed) living on the edge of the extractive frontier, their ‘resource nationalism’ can perhaps be better understood by thinking about the vestiges of the nieo, in Bangladesh’s constitution, public interest litigation, and left-wing political organisation. The remainder of this section examines critiques of these resource nationalist activists, and their disputes with experts on either side of investor-state dispute settlement cases brought by foreign extractive firms against Bangladesh. In Section 3, I go on to examine one of these cases, Niko vs. Bangladesh, in more detail.
2.1 Nationalist Resistance to (Foreign) Resource Extraction
The ncbd was founded by left-leaning organisations and intellectuals (predominantly economists and engineers) in 1998, initially in response to plans for the privatisation of Chittagong port and its transfer to foreign owners. Subsequent campaigns focused on the Magurchara gas blowout (1997), where
The ncbd’s nationalist-developmentalist orientation has been highlighted by a number of scholars of local resistance to mining in Phulbari, and to gas extraction in Sylhet. Gardner notes that ‘the narratives of the dispossessed are rarely heard and are generally dismissed’ but that the well-connected ncbd in Dhaka, for whom ‘national sovereignty rather than global warming is the rallying cry against coal mining or gas extraction’, is frequently heard (Gardner, 2012, 216–224).6 Nuremowla’s (2016) detailed ethnographic study of opposition to mining in townships around Phulbari highlights the disjunct between ncbd concerns and those of local people who migrated to Phulbari following erosion elsewhere, settling on khas (government) land. Narratives from nearby Boropukuria, where compensation has not been paid, or has been paid in instalments (foreclosing the opportunity to resettle), leads to Phulbari residents being rightly suspicious of any compensation and resettlement scheme. The ncbd’s leaflets in Phulbari, reading ‘No to foreign company. No to coal export. Yes to the extraction of coal by a state-owned body for the best interest
The ncbd has been criticised for this position elsewhere, in relation to their opposition to the Rampal power plant, a part-Indian parastatal–funded power plant in the Sundarbans, which has been opposed by a network of Bangladeshi (including the ncbd and bela) and international campaigners. Here again, the ncbd’s ‘professed official positions are deeply contradictory, opposing the Rampal project on environmental grounds and yet supporting coal power generally on nationalist ones’ (Mookerjea and Misra, 2017, 174). Rampal’s disappeared have ‘slipped through the cracks of the ncbd’s capacities to mobilize a broad based “multitude” to protest the Rampal development’ (Mookerjea and Misra, 2017, 79). It would be naive to claim that the ncbd is unproblematically aligned with local concerns, and the concerns of the most vulnerable: it is clear it is not. In aligning with developmentalist extraction for redistributive or social welfare purposes, there are seeming parallels between the ncbd and the Latin American political-economic models that critics of extractivism or neo-extractivism oppose. But the story does not end there: the developmentalist, middle-class activists in the ncbd and other organisations involved in opposing Rampal (and to a degree, Phulbari), such as bela, are by no means aligned straightforwardly with the state, or with extractive capital. In their opposition to extractive industry firms, and engagements with the state and the constitution of Bangladesh, we can detect durable remnants of the nieo and shed light on the political economic structures within which extraction—not necessarily extractivism—takes place in the contemporary global South.
In the next section, I highlight in detail the legal proceedings surrounding the Chhatak blowouts, and the subsequent disputes between Niko Resources and the Government of Bangladesh. It is worth noting that this dispute was infused with the conflict between ‘resource nationalist’ experts and those who allied themselves more closely to foreign extractive industry corporations. Following the blowouts at Chhatak in 2005 (detailed more fully below, in Section 3), a series of commissions was set up. The Tamim commission, headed by an eminent petroleum geologist and advisor to the military caretaker government, determined that 8.9 billion cubic feet had been lost in the Chhatak blowouts. An alternative commission established by the Bangladesh Economic Association disputed this, arguing 115 billion cubic feet of gas had
bapex is not like the international oil companies, it cannot explore at sea, but is good enough onshore. They have been producing for forty years now. There is no problem in bapex drilling wells […] Chhatak was producing under bapex. Then production stopped. Instead of sending a new bapex team, they sent the unknown, Niko. There was no bidding, no competition, then two blowouts in 2005.9
Another geologist, who did not support the ncbd, was still frustrated by the extent to which national technical capacity was superior to that of the ‘unknown’ (in fact, rather long established) Canadian explorer. By contrast, one Niko executive informed me that he would ‘sell everything we had in Bangladesh in a heartbeat if we could’—in part because of the ‘adversarial approach’ of the government, and in part because of the ‘lack of support service companies set up with resources in Bangladesh (like Schlumberger, Weatherford, etc.) making any drilling, workover, facilities construction exercise a monumental effort in importing personnel and equipment’.10 Technical ‘capacity’ became an additional fault line in disputes between Niko and Bangladeshi subsurface experts, with Niko’s (disputed) claims about a lack of Bangladeshi capacity forming an
Nowhere in the world do you pay for gas that has been destroyed. All that with bp in the USA—that is about compensation for the farmers. Otherwise how would you work? If you had an accident and gas leaks out and it will be worth ten times your company? How will you work?
3 The Niko Case: Blowouts at Chhatak and Feni
In 1999, bapex entered into a framework of understanding with Canadian oil and gas firm Niko Resources for the development of the Feni and Chhatak gas fields. The fields had been declared ‘marginal/abandoned’ following a period of production from 1960 to 1985 (Chhatak) and 1988 to 1998 (Feni), and as such Niko was able to enter into a joint venture with bapex on seemingly favourable terms in 2003. The Joint Venture Agreement restates the extent to which all minerals were vested in the Republic, and that the government had the ‘exclusive right and authority to explore, develop, exploit, produce, process, refine & market Petroleum resources’.12 While the joint venture negotiations appeared to go fairly smoothly, a separate Gas Price Sale Agreement negotiation proved more problematic. Gas price negotiations went on from May 2004 to December 2006, with Niko asking for usd 2.75 per thousand cubic feet (mcf), and the Gas Pricing Committee offering usd 1.75/mcf. The same tensions that were
By November 2005, there was still no gas pricing agreement, but Petrobangla (the parent company of bapex) made a usd 4 million holding payment to Niko for gas delivered thus far, on the understanding this would not prejudice the outcome of the pricing negotiations. Niko threatened to withdraw, but Petrobangla noted that this ‘will be seriously prejudicial to our national interest and we shall be constrained to act accordingly’.13 On 16 November 2005, the High Court Division of Bangladesh’s Supreme Court restrained further payment, and Niko accepted usd 1.75/mcf until final determination by an ‘expert’. However, Niko went on to announce a shutdown of the Feni field in January 2006. The response from Petrobangla was that this ‘is a violation of [Joint Venture Agreement] article 24.3 since Petrobangla is the only authority and agent of [the Government of Bangladesh] that purchases, sells, monitors and controls the transmission and distribution systems of gas in the country’.14 The vesting of the subsoil resources in the Republic, as well as the re-assertion of the Republic’s control of gas transmission and distribution in the Joint Venture Agreement, were again foregrounded by Petrobangla/bapex.
By December 2006, Niko had agreed on usd 1.75/mcf, and on 10 January 2007 invoiced the Government of Bangladesh, but was not paid. The reason given was that in 2005, on 7 January and 24 June, there had been two blowouts at Niko’s Chhatak field. A commission of inquiry had concluded that Niko was at fault, and the Government had filed a case with a district court demanding usd 79 million (bdt 746 crore) in compensation from Niko for the blowouts. Earlier, in 2005, the High Court Division had constrained the Government and Petrobangla from paying Niko further in response to a writ petition filed by bela. bela has frequently been involved in coalitions of activists opposing coal power developments, such as the Rampal coal power plant in the Sundarbans (see Section 2.1), but has also been at the centre of pioneering public interest litigation in Bangladesh. The first public interest litigation case in the country in which locus standi15 was granted to a person not directly aggrieved by a specific rights violation was filed in 1996 (Dr Mohiuddin Farooque v. Bangladesh)
Through filing its writ petition,17 bela exercised its constitutional right to challenge the Government for an account of why the Niko joint venture should not be declared illegal. bela made its challenge on the grounds that Niko had been given a productive field on the basis that it was technically ‘marginal’. bela also asked why the joint venture should not be declared illegal, and in violation of Article 143 of the Constitution, which vests in the Republic ‘all minerals and other things of value underlying any land of Bangladesh’. Included in the evidence attached to the petition was a letter from Niko in which it petitioned for the Chhatak East field to be included in the joint venture in order to ‘mitigate the reserve risk that we face in Chhatak West’.18 The finding of the petition, given in 2010, and which considered responses from Niko, bapex, Petrobangla and the Government of Bangladesh, was that Niko did owe the amount of compensation stated in the Government’s 2008 money suit. In addition, Mr Justice Quamrul Islam Siddiqui ruled that the Bangladesh Government and parastatal respondents were ‘restrained by an order of injunction from making any payment’ to Niko for gas that had already been delivered.19
Niko’s response to this injunction was to activate the arbitration clause in the Barbados-Bangladesh Bilateral Investment Treaty, given that Niko Resources (Bangladesh Ltd) was in fact incorporated in Bridgetown (and in Cyprus), even if the ultimate control seemed to be in the hands of Canadian executives and the Niko Resources (Ltd) head office in Calgary. Niko filed two requests for arbitration, in April and June 2010, requesting an award for payment of outstanding invoices, and a declaration it was not liable for compensation
3.1 Corruption, Canada and Arbitrary Decisions
The bela writ petition filed with the High Court Division of Bangladesh’s Supreme Court, which invoked Article 143 of Bangladesh’s constitution and the Republic’s psnr, reflects one fragmentary strand of the nieo’s persistence. As Sornarajah (2016) has noted, the nieo cannot be entirely erased given its presence in the constitutions of many formerly colonised states. The persistence of the nieo can also be detected in Bangladesh’s nominations for the arbitration tribunal, following Niko’s filing of cases at icsid in April and June 2010. Bangladesh proposed first Georges Abi-Saab, the twail lawyer and ‘ghostwriter’ of the unga (1984) template for enacting psnr as part of the nieo, and S. K. B. Asante, another twail lawyer attuned to North-South dependencies and the injustice of investment laws designed to protect (Northern) alien property at the expense of postcolonial sovereignty and public interest regulation (Asante, 1981; 1988). Both proposals were vetoed by Niko, whose proposal of nafta negotiator Guillermo Aguilar Alvarez was in turn vetoed by Bangladesh, and a mutually agreed panel of arbitrators chaired by Jan Paulsson was eventually agreed. Paulsson is notable for advancing the case for ‘arbitration without privity’, and providing the legal justification for investors to initiate arbitration even without breach of contract to which they are a party (Paulsson, 1995), thereby allowing arbitrators to gain authority without the legitimacy that should be derived from the consent of both (investor and state) parties (Sornarajah, 2015, 139–141).
This tussle over arbitrators—and Bangladesh’s calling upon twail practitioners—reflects the degree to which icsid arbitrations can be a battleground between durable colonial legal orders and the remnants of the nieo. Equally, such arbitrations could be seen as a domain in which the two
The decisions made by the tribunal in the case of Niko v. Bangladesh, in a series of judgements running from 2013 to 2021, have largely not gone in Bangladesh’s favour. In September 2014, the arbitrators ruled that Petrobangla owed Niko usd 25,312,747 plus usd 1,483,197 (bdt 139,998,337) for gas invoiced from the Feni field, and in September 2015 it was agreed this would be held in escrow. Petrobangla and the Government of Bangladesh responded, challenging this ruling, arguing that the Joint Venture Agreement and the Gas Purchase Sale Agreement had been the outcome of corruption, and thus could not be considered an ‘investment’ that would entitle Niko to bring an arbitration claim against them. The High Court Division of Bangladesh’s Supreme Court once again filed an injunction against payment to Niko, but in May 2016, the arbitrators ruled once again on the payment claim, adding interest of usd 5,932,833 and usd 524,316 (bdt 49,489,961) to the earlier award. The arbitrators have refused to hear further petitions questioning their jurisdiction (including on the grounds that Canada has not ratified the icsid treaty, and that the clear owner and authority behind Niko is based in Calgary not Bridgetown), but a number of additional decisions were made on the claim that the Joint Venture and Gas Purchase Sale Agreement were the products of corruption.
The corruption claim is based on the fact that in 2005 Bangladeshi Energy Minister Mosharaf Hossain received a vehicle and expenses for a trip to Canada from Niko during the pricing negotiations. The acknowledged corruption in this case, which resulted in Hossain resigning in June 2005, combined with the reclassification of the Feni/Chhatak fields from ‘suspended’ to ‘marginal’ (see above) has raised suspicion about the degree to which corruption or malfeasance was involved in the negotiation of the Joint Venture Agreement too. Initially, the arbitral panel dismissed the corruption claim on the grounds that the High Court Division of Bangladesh had ruled the Joint Venture was not obtained by flawed means when responding to bela’s 2008 writ petition in 2010. In 2011, Niko was convicted of corruption and fined usd 7.3 million (cad 9.5 million), the largest fine under Canada’s Corruption of Foreign Public Officials Act (1999) to date. The lawyers for Petrobangla/Government of Bangladesh argued that the established legal fact of this corruption, which took place during the negotiation of the Gas Purchase Sale Agreement, should
Lawyers for Bangladesh/Petrobangla have subsequently requested materials from the Royal Canadian Mounted Police investigation into Niko, arguing that these may shed light on aspects of corruption material to the Gas Purchase Sale Agreement/Joint Venture Agreement. Upon learning that Deloitte had been asked to audit Niko when Niko was made aware of the impending corruption investigation, Bangladesh/Petrobangla requested Deloitte’s audit results for their own scrutiny. However, the arbitration tribunal upheld an aspect of Canadian law, namely that since Niko’s lawyers had hired Deloitte, Deloitte’s actions were covered by litigation privilege.21 Ultimately, the corruption claim has been treated as resolved, and the tribunal is now considering the compensation claim.22 Legal fee claims of over usd 2 million have been submitted by Niko, for which Bangladesh is liable. In addition, Bangladesh has been found liable for usd 982,089 of arbitration costs incurred by icsid.23 This is not at all unusual in arbitration decisions. Based on an analysis of 292 cases up to 2014, Van Harten (2016) shows that respondent states have lost on average usd 47 million per case, while large companies have made on average usd 136 million per case, and the arbitration/legal industry has made usd 8 million per case.
The degree to which the Niko decisions on corruption might be considered arbitrary or ‘unreasoned’ (Schultz, 2014) is highlighted by an examination of alternative rulings. There is, for instance, no reason that the tribunal necessarily had to refuse to consider wider corruption investigations into Niko, or refuse to allow Bangladesh access to wider corruption investigations. In earlier cases, tribunals have rejected the notion they are required to defer to local courts in considering whether evidence can be heard about the legality of an ‘investment’.24 Similarly, other high-profile cases have seen arbitrators refuse to consider the merits of a case where bribery was involved, whereas in the Niko case arbitrators insisted on separating specific acts of bribery from related
Numerous scholars concerned with expanding analyses of extractivism from the Latin American context, and developing conceptualisations of ‘global extractivism’, have drawn attention to the degree to which the Canadian state supports extractive imperialism abroad, and domestically (Grinspun and Mills, 2015; Veltmeyer and Bowles, 2014). Elsewhere, the work carried out by Canada’s development agency cida (now incorporated into Global Affairs Canada) on ‘building capacity’ in mineral rich nations has been understood as being less about serving the citizens of developing states, and more about reworking mineral codes to de-risk Canadian extractive investments (Butler, 2015, 136). In this context, icsid tribunals seem to work to uphold the colonial endeavours of both Canadian foreign policy and Canada-based (even if via Barbados) extractive industry firms. Bangladesh’s attempts to revive the principles of the nieo, so that the protection of alien property is not seen as the ultimate purpose of international law, have been frustrated here. Bangladeshi sovereignty over its national resources, the pricing of much needed gas, and the control, monitoring and transmission of that gas, has not been considered seriously by the tribunal, any more than the material impact Niko’s acknowledged corruption might have had in securing a ‘suspended’ field under terms reserved for ‘marginal’ fields. In this case, resource nationalist activists like the ncbd seem somewhat aligned with the Government and Bangladesh, even if they are often at loggerheads domestically. If there is a global extractivism, it does not by any means necessarily align redistributive developmentalism with extractive capital, and may in some cases intensify their opposition.
4 Extractive Futures and Policy Possibilities
In this chapter, I have responded to Szeman and Wenzel’s (2021) injunction to ask, what do we leave unspoken when we talk about extractivism? I have suggested that in deterritorialising and even de-historicising the concept of (neo-)extractivism such that it speaks not only to Latin American redistributive policies during the 2000s commodity price boom but also to a general feature of capitalism, we miss much that is important about contemporary resource politics. Framing extractivism as not only a set of political economic structures but as an ideology risks detracting attention from the technical and
While critiques of extractivism focusing on Latin America (Veltmeyer and Bowles, 2014) or on the contemporary global North (Brock, 2020) have focused on alignments between extractive capital and violent states, this chapter has highlighted other (partial and temporary) alignments, between states, ‘resource nationalist’ professionals and academics, and middle-class public interest litigators, against extractive capital. bela, the ncbd and Bangladesh’s legal representatives in icsid tribunals all act in a way that recovers the fragments of the nieo that can be found in Bangladesh’s constitution, in the operations of bapex/Petrobangla, and in attempts to secure central figures from the twail movement as Bangladesh’s representatives in the Niko arbitration. The ncbd, bela and indeed some of Bangladesh’s eminent twail ‘scholactivists’ like Kamal Hossain have all been criticised for their ‘few engagements with directly dealing with rights of the poor’ (Farid, 2016, 76; Mookerjea and Misra, 2017; Hoque, 2006). To question the conceptual efficacy of extractivism is not to deny the violence of extraction, nor the dispossession and deprivation it entails.26
Yet the very real injustices of international investment law’s colonial durability, and the equally real remnants of the nieo that can be found in legal and other ‘resource nationalist’ mobilisation against transnational extractive corporations, need to remain in focus if the injustices of contemporary extraction are to be effectively challenged. To unpick the role of state actors, domestic elites and transnational corporations is not to deny the violence of extractivism. Nor should the argument that state (and other domestic) actors mobilise the remnants of the nieo against transnational extractive corporations be
Numerous challenges remain for advocates of developmentalist attempts to solve the persistent energy crisis in Bangladesh. Groups opposed to foreign-owned extractive operations and the export of fossil fuels, such as the National Committee, have increasingly moved towards advocacy of a renewable-led energy strategy (ncbd, 2017). bela successfully filed a writ petition in response to which the High Court Division ruled that the Government should pursue a 100 per cent renewable energy strategy, in June 2021, and the cancellation of numerous coal power plants was announced by the Government in 2022. But Bangladesh continues to be heavily reliant on gas. Impacted by the spike in liquid natural gas import prices following Russia’s invasion of Ukraine, domestic gas exploration is once again a salient concern. In an echo of the Chhatak case, international drilling firms continue to profit from operations where bapex made original discoveries and could seemingly carry out drilling at vastly lower rates (Rahman, 2022).
Globally, the nieo—as much as it was often a project of domestic elites against transnational corporations—has been eclipsed, not lost,27 enshrined as it is in numerous constitutions. There is a resurgent global interest in reforming international investment law, in an environment where defences of sovereignty against international law are made not only by postcolonial states seeking independence and development, but by right-wing and nativist regimes in the global North. Ongoing efforts to push for reforms—such as including an appellate body and a code of conduct for arbitrators—through the United Nations Commission on International Trade Law (uncitral)28 offer what some view as glimmers of hope (Uribe and Danish, 2021), even if the ‘ingrained tendency’ of the community of arbitrators seems to mitigate the effectiveness of such gradual reforms (Sornarajah, 2020). uncitral’s involvement in establishing a programme of work on isds reform that privileges states’ views over those of arbitrators hints at possible shifts in the regimes
The importance of leveraging durable remnants of the nieo, or indeed of recovering the sense of the possibility of an alternative international law that the nieo seemed to offer, is taking on ever greater policy salience. As noted by Working Group iii of the Intergovernmental Panel on Climate Change (ipcc), trade agreements enshrining isds provisions have tended to prioritise investor rights and constrain host countries’ ability to adopt environmental policies, and may through ‘regulatory chill’ delay the phase out of fossil fuels (ipcc, 2022, 72).29 Contemporary, colonially derived international investment law protects the interests of investors from the global North against the legislative imperatives of states of the global South. While at times domestic elites from Southern states come into alignment with international extractive industry capitalists, the potential for activists, experts and legal/judicial elites to utilise remnants of the nieo to challenge foreign investors should not be dismissed. Recovering the sense of possibility offered by the nieo in order to curtail the interests of foreign extractive industry investors is increasingly vital not only for the pursuit of developmentalist aims, but also to have the freedom to pursue climate change mitigation policies.
The research presented in this chapter draws on fieldwork funded by an esrc/Sussex dtc +3 Doctoral Scholarship (2011–14), as well as by the Sussex Research Opportunities Fund (2019).
As of 15 November 2021, a Web of Science citation report for ‘extractivism’ shows a rapid upswing in mentions and citations from 2013 to 2020. Prior to 2013, there were fewer than five publications a year mentioning extractivism, and citations were below 30 (apart from a brief spike in 2011 and 2012). Publications mentioning extractivism ballooned after 2013, rapidly rising to 172 in 2020, and citations followed suit rising to 1,073 in the same year.
See Abraham (2021) for a review of Hickel (2021) situating it within a European environmental policy milieu.
It is perhaps also worth noting that in framing extractivism as an ideology through which non-human nature is rendered an inert object, ready for exploitation and extraction, some scholars and critics of extractivism (e.g. Brock, 2020; Hickel, 2021) overlook the considerable body of work on the making of resources, and the processes through which specific geological features can become valuable and worthy of extraction at different times (see, e.g., Kama, 2020). Minimising the sociotechnical processes of resource-making in favour of a generalised ideology of extractivism risks reducing possibilities for intervening in the politics of extractivism. See Section 3, below.
Prior to 1977, most Latin American states adhered to the Calvo doctrine, whereby state sovereignty was considered primary, and ‘national treatment’ took precedent over the US-led ‘international minimum standard’ of treatment of alien property.
It should be noted, however, that as of 2017 the ncbd has been promoting renewable energy expansion as part of an alternative People’s Masterplan that responded to the Government of Bangladesh/jica 2016 Power System Master Plan. In addition, ncbd spokespeople have welcomed the cancellation of ten planned coal power plants which was announced by the Government of Bangladesh in June 2021.
Based on 1 September 2005 exchange rates of usd 1 = bdt 65.69.
A crore is a unit of measure denoting ten million in the Indian numbering system.
Interview, November 2013.
Interview, December 2013.
For example, iisd and igf (2019) give broad-based black economic empowerment (b-bbee) as an example of an ownership-driven local content policy in South Africa. Tellingly, the Foresti et al. v. Republic of South Africa case brought under the Italy-South Africa bit, and that seems to have triggered South Africa’s retreat from a number of bits (Mossallam, 2015), was brought precisely on the basis that b-bbee could be tantamount to discrimination against Foresti et al. As such, local content policies can be seen to open states up to challenge via isds.
Joint Venture Agreement, 16 October 2003. As quoted in icsid Case Nos. arb/10/11 and arb/10/18: Decision on Jurisdiction (19 August 2013), para 44–45.
icsid Case Nos. arb/10/11 and arb/10/18: Decision on Jurisdiction (19 August 2013), para 65.
icsid Case Nos. arb/10/11 and arb/10/18: Decision on Jurisdiction (19 August 2013), para 72.
The position from which one may make a valid legal claim or seek to enforce a right.
bela also successfully filed a writ petition in response to which the High Court Division ruled that the Government should pursue a 100 per cent renewable energy strategy, in June 2021.
Writ Petition Number 6911 of 2005.
Letter from Niko Vice President South Asia Qasim Sharif to the Managing Director, bapex, dated July 8, 2002.
Writ Petition Number 6911 of 2005, p. 42.
icsid Case Nos. arb/10/11 and arb/10/18: Procedural Order No. 16: Concerning the Respondents’ Request for Reconsideration of 30 June 2016 (14 November 2016).
icsid Case Nos. arb/10/11 and arb/10/18: Procedural Order No. 22 (Privilege Asserted Against the Production of the Deloitte Documents) (27 July 2017).
icsid Case Nos. arb/10/11 and arb/10/18 (Decision on the Corruption Claim) (25 Feb 2019).
icsid Case Nos. arb/10/11 and arb/10/18 (Decision on Heads of Recoverable Loss Concerning the Compensation Declaration Proceedings) (18 May 2021).
Inceysa Vallisoletana s.l. v. Republic of El Salvador, icsid Case No. arb/03/26.
Compare World Duty Free Company v Republic of Kenya, icsid Case No. arb/00/7.
As noted by@maxajl (Max Ajl) ‘The *experiences* of dispossession or deprivation some peoples endure during natural resource extraction are not denied when we place this concept under the microscope’. Twitter, 19 Mar 2021,
With thanks to M. Sornarajah for this phrasing.
uncitral’s initial programme of work was also focused on the legal implications of the nieo for the law of international trade.
Another ongoing site of dispute where the legacies of the nieo come into conflict with neo-mercantilist ambitions on the part of Northern extractive industry investors is the ‘frontier’ comprised by deep-sea mining (Zalik, 2018). The area of the seabed categorised as the ‘common heritage of mankind’ runs up against the ambitions of Canadian and other mining capitalists, against a backdrop of hostility to revenue sharing provisions mandated by the International Seabed Authority.
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