Resources and Events

Resources

Policy Brief #4: Investment in Agriculture, “Investing in Land for Water: The converging legal regimes”

By Makane Moïse Mbengue, Susanna Waltman & Laura Turley, Published by IISD, July 2016

Investment in farmland is motivated in large part by access to water resources, but water-related impacts tend to be an afterthought in the “land grabbing” debates. These same water resources are lifelines for local farmers, pastoralists and other communities, which makes sound legal frameworks all the more necessary. This policy brief presents the different sources of law that are triggered by the use of water for farmland investments, and makes recommendations to help reconcile different legal regimes while ensuring water issues are adequately addressed. Available at https://www.iisd.org/library/investing-land-water-converging-legal-regimes-policy-brief-4-investment-agriculture

Establishing Judicial Authority in International Economic Law

By Joanna Jemielniak, Laura Nielsen & Henrik Palmer Olsen (Eds.), Published by Cambridge University Press, July 2016

The intensified juridification of international relations by a growing number of international courts is a central development in international law. This book discusses how international judicial authority is established and managed in key fields of international economic law: trade law, investor–state arbitration and international commercial arbitration. The analysis explores the interplay between these areas of economic dispute resolution, tracing their parallel developments and identifying the ways they influence each other on mechanisms and solutions. Drawing together contributions from many scholars, this volume considers issues such as the usage of precedent and the role of legitimacy, suggesting that the consolidation of judicial authority is a universal trend which impacts on state behaviour. Available at http://www.cambridge.org/academic/subjects/law/international-trade-law/establishing-judicial-authority-international-economic-law

IIA Mapping Project

By United Nations Conference on Trade and Development (UNCTAD), Published by UNCTAD, July 2016

The IIA Mapping Project is an ongoing effort that aims to map all IIAs for which texts are available (about 2,700). Individual treaties are mapped by law students from over 25 participating universities worldwide, under the supervision of their professors and with the overall guidance and coordination of UNCTAD. The database launched in July 2016 is part of UNCTAD’s International Investment Agreements (IIA) Navigator and contains a detailed mapping of 1,400 IIAs. It offers a tool for policymakers, researchers and other investment and development stakeholders to understand trends in IIA drafting, assess the prevalence of different policy approaches and identify treaty examples. It allows users to view elements of the mapped treaties, select treaties based on key elements (for example, qualifiers for fair and equitable treatment, scope of the expropriation clause or investor–state dispute settlement) and compare treaty elements over time and across countries. Available at http://investmentpolicyhub.unctad.org/IIA/mappedContent

World Investment Report 2016, “Investor Nationality: Policy Challenges

By UNCTAD, Published by UNCTAD, June 2016

IIA reform is intensifying and yielding the first concrete results. About 100 countries have used UNCTAD’s Investment Policy Framework and its Road Map for IIA reform to review their IIA networks. During this first phase of IIA reform, countries have built consensus on the need for reform, developed new model treaties and started to negotiate new, more modern IIAs. Despite significant progress, much remains to be done. Phase two of IIA reform will require countries to focus more on the existing stock of treaties. Promoting and facilitating investment is crucial for the post-2015 development agenda. The report presents a Global Action Menu for Investment Facilitation to further enhance the enabling environment for investment in sustainable development. The report also looks at the policy challenges arising out of investor nationality. Indirect ownership structures and mailbox companies have the potential to significantly expand the reach of IIAs. The blurring of investor nationality has made the application of rules and regulations on foreign ownership more challenging. About one-third of investor–state dispute settlement (ISDS) claims are filed by claimant entities that are ultimately owned by a parent in a third country. About one-third of apparently intra-regional foreign affiliates in major mega-regional treaty areas, such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), are ultimately owned by parents outside the region. Available at http://unctad.org/wir

IIA Issues Note, “Investor–State Dispute Settlement: Review of Developments in 2015”

By UNCTAD, Published by UNCTAD, June 2016

The issues note reviews developments in ISDS in 2015. A record high of 70 ISDS cases were filed in 2015, with a continued large share of cases against developed countries. The overall number of publicly known ISDS claims reached 696 (key information on each case is available on UNCTAD’s ISDS Navigator at http://investmentpolicyhub.unctad.org/ISDS). Arbitral decisions rendered in 2015 touch upon a number of important legal issues concerning the scope of treaty coverage, the conditions for bringing ISDS claims, the meaning of substantive treaty protections, the calculation of compensation and others. On some issues, tribunals followed previous decisions, while on some other issues they adopted approaches that departed from earlier decisions. Available at http://investmentpolicyhub.unctad.org/Publications/Details/144

Foreign Investor Protections in the Trans-Pacific Partnership

By Gus Van Harten, Published by Canadian Centre for Policy Alternatives (CCPA), June 2016

This study examines the special privileges, enforced through ISDS, which would be given to foreign investors under the TPP. These include the right to compensation where government laws, regulations, or other decisions are found to interfere with an investor’s interests. It shows that those financially benefitting from such rights in past agreements have mostly been very large companies or wealthy individuals. The author also explains how the TPP expands ISDS rules to cover “investment agreements” between the federal government and foreign investors, and how it weakens protections for financial regulation. The study concludes that expanding and enshrining such investor privileges carries major risks for voters and taxpayers in all TPP countries, with no compelling evidence of a corresponding benefit for the public. Available at https://www.policyalternatives.ca/publications/reports/foreign-investor-protections-trans-pacific-partnership

Can the Mauritius Convention Serve as a Model for the Reform of Investor–State Arbitration in Connection with the Introduction of a Permanent Investment Tribunal or an Appeal Mechanism? Analysis and Roadmap

By Gabrielle Kaufmann-Kohler & Michele Potestà, Published by Geneva Center for International Dispute Settlement (CIDS), June 2016

The paper proposes a possible roadmap that could be followed if states were to decide to pursue a reform initiative of the existing investor–state arbitration regime in international investment agreements (IIAs), based on three main blocks: the design of an International Tribunal for Investments (ITI), the design of an Appeal Mechanism (AM) for investor–state arbitral awards and the establishment of an opt-in multilateral convention to extend those new dispute resolution options to states’ existing IIAs. While concluding that the challenges involved in broader reforms of the investor–state arbitration regime are substantially more complex than the introduction of a transparency standard in investment treaties, the paper also shows that the Mauritius Convention could provide a useful model. Available at http://www.uncitral.org/pdf/english/commissionsessions/unc/unc-49/CIDS_Research_Paper_-_Can_the_Mauritius_Convention_serve_as_a_model.pdf

Signing Away Sovereignty: How Investment Agreements Threaten Regulation of the Mining Industry in the Philippines

By Cecilia Olivet, Jaybee Garganera, Farah Sevilla & Joseph Purugganan, Published by Transnational Institute (TNI), May 2016

Mining firms have been one of the main corporate sectors worldwide to take advantage of ISDS mechanisms to sue states for regulation of mining, having sued governments for a total of US$53 billion so far. The Philippines, one of five countries worldwide with the highest overall mineral reserves, has bet heavily on the mining industry as a development strategy, with 47 large-scale mines in operation and growing evidence of their social and environmental costs. This briefing argues that the country’s ability to properly regulate or close polluting mines will be severely constrained by a network of investment treaties the Philippines has signed, which provide excessive protection for foreign investors. This legal straitjacket will become still tighter if the government goes ahead with the EU–Philippines Free Trade Agreement and the Regional Comprehensive Economic Partnership (RCEP). Available at https://www.tni.org/en/publication/signing-away-sovereignty


Events 2016

September 7

SEMINAR, “DO ARBITRATORS TEND TO STRETCH THEIR JURISDICTION IN INVESTMENT ARBITRATION? A DEBATE BASED ON YUKOS AWARDS,” Arbitration Institute of the Stockholm Chamber of Commerce (SCC), Stockholm, Sweden, http://www.sccinstitute.com/about-the-scc/event-calendar/stockholm-do-arbitrators-tend-to-stretch-their-jurisdiction-in-investment-arbitration/

September 18–23

IBA ANNUAL CONFERENCE 2016, International Bar Association, Washington, D.C., United States, http://www.ibanet.org/Conferences/Washington2016.aspx

September 19–22

 MASTER CLASS ON INVESTMENT ARBITRATION, Association for International Arbitration (AIA) & Brussels Diplomatic Academy (Vrije Universiteit Brussel), Brussels, Belgium, http://arbitration-adr.org/activities/?p=conference&a=upcoming

September 27–28

ICSID COURSE, “NAVIGATING AN ICSID ARBITRATION FROM START TO FINISH,” & ICSID–CRCICA JOINT CONFERENCE, “KEY ISSUES IN INTERNATIONAL INVESTMENT ARBITRATION,” International Centre for Settlement of Investment Disputes (ICSID) & Cairo Regional Centre for International Commercial Arbitration (CRCICA), Cairo, Egypt, https://webapps.worldbank.org/apps/ICSIDWEB/Documents/Cairo%20Conference%20and%20101-Flyer%20and%20Program.pdf

October 24–28

INTERGOVERNMENTAL FORUM ON MINING, MINERALS, METALS AND SUSTAINABLE DEVELOPMENT (IGF) ANNUAL GENERAL MEETING (AGM) 2016, “THE SUSTAINABLE DEVELOPMENT GOALS (SDGS) AND MINING,” IGF & IISD, Geneva, Switzerland, http://globaldialogue.info/pdf/2016/igf-agm-invite.pdf

November 2–3

11TH ANNUAL COLUMBIA INTERNATIONAL INVESTMENT CONFERENCE, “CLIMATE CHANGE AND SUSTAINABLE INVESTMENT IN NATURAL RESOURCES: FROM CONSENSUS TO ACTION,” Columbia Center on Sustainable Investment (CCSI), New York, United States, http://ccsi.columbia.edu/2016/11/02/11th-annual-columbia-international-investment-conference-climate-change-and-sustainable-investment-in-natural-resources-from-consensus-to-action

November 2–8

SINGAPORE INTERNATIONAL ARBITRATION ACADEMY (SIAA) 2016, “THE INVESTMENT TREATY WORLD IS CHANGING…,” National University of Singapore’s Centre for International Law (CIL), Singapore, https://cil.nus.edu.sg/siaa-2016

November 7–9

TENTH ANNUAL FORUM OF DEVELOPING COUNTRY INVESTMENT NEGOTIATORS, IISD, South Centre, Commonwealth Secretariat, & Government of Sri Lanka, Colombo, Sri Lanka, http://www.iisd.org/project/annual-forum-developing-country-investment-negotiators

November 10

SUSTAINABLE DEVELOPMENT AND INTERNATIONAL ARBITRATION, Association for International Arbitration (AIA) Italy, International Chamber of Commerce (ICC) Italy & Vrije Universiteit Brussel, Brussels, Belgium, http://arbitration-adr.org/activities/?p=conference&a=upcoming

November 21

BRIDGING THE CLIMATE CHANGE POLICY GAP: THE ROLE OF INTERNATIONAL LAW AND ARBITRATION, SCC, IBA, ICC and Permanent Court of Arbitration (PCA), Stockholm, Sweden, http://www.sccinstitute.com/about-the-scc/event-calendar/save-the-date-bridging-the-climate-change-policy-gap-stockholm