A/70/301 47. Fair and equal treatment and stabilization clauses have particular potential to constrain the capacity of Governments. For example, the fair and equal treatment requirements in the United States model bilateral investment treaty ha ve been interpreted by some investment tribunals as paralyzing new laws and regulations. Arbitration judgements have upheld that new laws or regulations cannot be enforced if they are adverse to the foreign investor. Fair and equal treatment clauses have a lso been a very successful way for investors to sue Governments in disputes under trade and/or investment treaties. A high proportion of cases won by investors have invoked fair and equal treatment clauses. Some sources estimate that 81 per cent of cases won by investors cite fair and equal treatment violations. 14 48. Concerns about that constriction of the policy and legislative space of Governments have a further direct impact on indigenous communities. The “chilling effect” of investment and free trade agreements could reduce the often already-low political will of States to take actions to fully implement the rights of indigenous peoples. For example, in 2010 in Guatemala, the Government suspended operations at the Marlin mine following protests from indigenous peoples and recommendations by the Inter-American Commission on Human Rights and ILO. However, press reports suggest that Government documents obtained through the freedom of information policy of Guatemala revealed that the State ’s fears that closing the mine down permanently could give rise to an investor -State dispute settlement case under its United States free trade agreement investment chapter played a role in allowing the mine to stay open. 15 49. Concerns about the “chilling effect” have been expressed in the context of the new Trans-Pacific Partnership agreement between the United States, Canada and several Asia-Pacific countries. The Waitangi Tribunal is a body that was set up in 1975 in New Zealand to investigate grievances of the Maori again st the Government of New Zealand. The tribunal established an urgent inquiry into the Government ’s actions in relation to negotiating the Trans-Pacific Partnership. A law professor asked to give evidence on the inquiry noted that the imposition of new cond itions could have a negative impact on initiatives to protect indigenous rights. Potential scenarios she cited as breaching fair and equal treatment clauses in the Partnership could even include efforts to gain the prior consent of a local tribe before dri lling, and the decision of a local board to refuse to issue a land -use licence after hearing evidence of Maori concerns. 16 Loss of public funds 50. The “chilling effect” could be exacerbated by the practical impact of the loss of public funds during investor-State dispute settlement hearings and the costs of Governments defending themselves within tribunals. As described above, some tribunal awards can be valued at billions of dollars, and there are inevitable legal costs associated with fighting investor-State dispute settlement claims. Awards are binding and ultimately have to be paid with funds from taxpayers. The loss of public __________________ 14 15 16 16/24 Public Citizen, “Memorandum”, 5 September 2012. Available from citizen.org/documents/MST Memo.pdf. Claire Provost and Matt Kennard, “The obscure legal system that lets corporations sue countries”, The Guardian, 10 June 2015. New Zealand Ministry of Justice, “Affidavit of Professor Elizabeth Jane Kelsey”, June 2015. Available from https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_92914254/ Wai%202522%2C%20A0001.pdf. 15-12526