Al Jazeera Tries to Make Egypt Pay for Media Crackdown

Al Jazeera has notified (pdf) the government of Egypt it may pursue an arbitration case with an international tribunal, prompted by what the media network describes as continued harassment and intimidation of its journalists by the Egyptian military.

Al Jazeera’s Egyptian license was revoked in the aftermath of last year’s overthrow of Mohamed Morsi’s government, and four of its journalists remain in custody. In essence, the Egyptian government doesn’t like what the voice of the Arab World had to say about it and, according to the network, took illegal actions to mute it.

The potential arbitration demand is based on a 1999 investment treaty between Egypt and Qatar, the owner of Al Jazeera, which requires that foreign investments receive “fair and equitable treatment.” Filing a notice of dispute is a required precursor to arbitration, and the network is seeking $150 million in compensation in addition to “the treatment of Al Jazeera and its employees in accordance with their legal rights,” according to Carter-Ruck, the London law firm representing the network.

“Al Jazeera has invested substantial sums in Egypt since it began broadcasting in Egypt in 2001,” the network explained in a statement, “and the effect of this sustained campaign against Al Jazeera is that its investment has been expropriated.” If the matter isn’t resolved within six months, Al Jazeera will proceed with an arbitration case.

An arbitration clause is typically included in bilateral investment treaties to give foreign investors a way, other than the local courts, to challenge the host government if they believe their investment was expropriated or somehow diminished by unfair treatment. Similar clauses have come under withering criticism in recent years over allegations that companies use them to overturn environmental and financial regulations and even court judgments.

Luke Eric Peterson, the publisher of Investment Arbitration Reporter, notes that Al Jazeera’s claim is just the latest brought by media companies against host governments. Most of the other cases have dealt with business disputes, he said, rather than mistreatment tied to journalism or publishing.

In one instance, however, a small publishing house, a subsidiary of a Lithuanian company, claimed it was harassed by the government of Ukraine after it printed materials for an opposition politician. The arbitration panel ultimately ruled against the publishing house, Taki spravy, saying it wasn’t entirely clear that the government’s actions were motivated by politics.

Peterson said the Al Jazeera case could hinge on whether arbitrators believe freedom of expression is guaranteed by investment treaties. Even if it isn’t, he said, arbitrators could decide that other treaties were violated. It’s an avenue suggested by Al Jazeera’s statement, which cites “international human rights treaties” covering freedom of expression and the right not be arbitrarily detained.

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