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- Institution
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- Columbia Law School (13)
- American University Washington College of Law (9)
- University of Michigan Law School (4)
- Pepperdine University (3)
- Selected Works (3)
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- University of Missouri School of Law (2)
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- Penn State Law (1)
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- University of Georgia School of Law (1)
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- Columbia Center on Sustainable Investment Staff Publications (10)
- Articles in Law Reviews & Other Academic Journals (9)
- Faculty Scholarship (5)
- Michigan Journal of International Law (4)
- Pepperdine Dispute Resolution Law Journal (3)
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- Journal of Dispute Resolution (2)
- Northwestern Journal of International Law & Business (2)
- Cardozo Law Review (1)
- Catherine Rogers (1)
- Georgia Journal of International & Comparative Law (1)
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- Nancy Welsh (1)
- South Carolina Law Review (1)
- UAEU Law Journal (1)
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Articles 1 - 30 of 43
Full-Text Articles in Law
Capitalization Of The Global Green Economy: An Analysis Of South Carolina's Current Foreign Direct Investment Efforts And Suggestions For Continued Sustainability, William E. Hilger
Capitalization Of The Global Green Economy: An Analysis Of South Carolina's Current Foreign Direct Investment Efforts And Suggestions For Continued Sustainability, William E. Hilger
South Carolina Law Review
No abstract provided.
Crisis, Continuity, And Change In International Investment Law And Arbitration, Valentina Vadi
Crisis, Continuity, And Change In International Investment Law And Arbitration, Valentina Vadi
Michigan Journal of International Law
The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between …
The Means Of Settling Disputes In The Securities Market: A Comparative Study, Dr. Yasser Bassem Al-Sabawi
The Means Of Settling Disputes In The Securities Market: A Comparative Study, Dr. Yasser Bassem Al-Sabawi
UAEU Law Journal
time being, one of the most important types of investments and the most important funding source for States. For the purpose of protecting investment and investors at the same time from the damage that may have been occurred as a result of speculation unlawful acts committed by speculators in the money market, the legislator has prohibited in most of the countries that organize this investment dealing with stock markets, only through the intermediary companies and they are joint stock companies called listed securities. The perception is that disputes may rise between the client and this type of companies, so it …
Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment
Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment
Columbia Center on Sustainable Investment Staff Publications
Comments to USTR Re: U.S.-Kenya Trade Agreement (April 28, 2020): CCSI, in response to the United States Trade Representative’s request for public comment to inform its approach to a U.S.-Kenya Trade Agreement, submitted Comments elaborating on our main points that (1) investor-state dispute settlement should not be included in any U.S.-Kenya agreement and (2) principles that should guide an investment chapter or investment provisions in any such agreement should (a) strategically support cross-border investment that produces positive development outcomes for the U.S. and Kenya, (b) facilitate and support good governance of investment projects, and (c) enhance cooperation to solve challenges …
Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant
Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant
Faculty Scholarship
The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.
Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe
Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe
Faculty Scholarship
The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …
Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes
Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes
Northwestern Journal of International Law & Business
Investor-state contracts are regularly used in low- and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.
This article explores how …
To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis
To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis
Faculty Scholarship
Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …
Uncitral Working Group Iii On Isds Reform: How Cross-Cutting Issues Reshape Reform Options, Lorenzo Cotula, Thierry Berger, Lise Johnson, Brooke Güven, Jesse Coleman
Uncitral Working Group Iii On Isds Reform: How Cross-Cutting Issues Reshape Reform Options, Lorenzo Cotula, Thierry Berger, Lise Johnson, Brooke Güven, Jesse Coleman
Columbia Center on Sustainable Investment Staff Publications
The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …
Draft Text Providing For Transparency And Prohibiting Certain Forms Of Third-Party Funding In Investor–State Dispute Settlement, Brooke Güven, Lise Johnson, Nathalie Bernasconi-Osterwalder, Lorenzo Cotula, Jane Kelsey
Draft Text Providing For Transparency And Prohibiting Certain Forms Of Third-Party Funding In Investor–State Dispute Settlement, Brooke Güven, Lise Johnson, Nathalie Bernasconi-Osterwalder, Lorenzo Cotula, Jane Kelsey
Columbia Center on Sustainable Investment Staff Publications
The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …
Third-Party Rights In Investor-State Dispute Settlement: Options For Reform, Jesse Coleman, Lise Johnson, Brooke Güven, Lorenzo Cotula, Thierry Berger
Third-Party Rights In Investor-State Dispute Settlement: Options For Reform, Jesse Coleman, Lise Johnson, Brooke Güven, Lorenzo Cotula, Thierry Berger
Columbia Center on Sustainable Investment Staff Publications
The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …
Draft Treaty Language: Withdrawal Of Consent To Arbitrate And Termination Of International Investment Agreements, Brooke Güven, Lise Johnson
Draft Treaty Language: Withdrawal Of Consent To Arbitrate And Termination Of International Investment Agreements, Brooke Güven, Lise Johnson
Columbia Center on Sustainable Investment Staff Publications
The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …
Primer: International Investment Treaties And Investor-State Dispute Settlement, Columbia Center On Sustainable Investment
Primer: International Investment Treaties And Investor-State Dispute Settlement, Columbia Center On Sustainable Investment
Columbia Center on Sustainable Investment Staff Publications
What Are International Investment Agreements (IIAs)?
IIAs are bilateral or multilateral treaties that commit state-parties to afford specific standards of conduct to foreign investors from the other state-parties. These treaties grant foreign investors certain benefits, including recourse to Investor-State Dispute Settlement (ISDS) to resolve disputes with host states. Over 3,300 agreements have been concluded worldwide, including NAFTA and the Comprehensive and Progressive TransPacific Partnership.
What is Investor-State Dispute Settlement (ISDS)?
IIAs allow foreign investors (individuals and companies) to allege treaty violations by suing states through ad hoc arbitration. Arbitration tribunals are composed of party-appointed (and party-paid) private lawyers. Tribunals …
Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson
Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson
Columbia Center on Sustainable Investment Staff Publications
International investment treaties entrench and exacerbate intra-national inequality by:
- Providing stronger substantive legal rights to a certain class of actors that in turn strengthen the legal force of their economic rights and “expectations”, with potentially negative impacts on the competing rights and interests of other stakeholders; and
- Providing unequal procedural rights to a certain class of actors, easing their ability, through ISDS, to challenge regulatory measures negatively impacting their economic interests, while other individuals and entities continue to face relatively high legal and practical barriers to using litigation to protect and/or enhance public interest objectives.
This Working Paper, adapted from …
Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel Gervais
Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel Gervais
Michigan Journal of International Law
This Article attempts to resolve clashes between intellectual property and investor-state dispute settlement (“ISDS”). ISDS clauses contained in bilateral, plurilateral, or multilateral trade and investment agreements give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitral tribunal. This jurisgenerative right to file a claim against a state in an international tribunal with mandatory jurisdiction is exceptional; it is generally reserved to other states. Only multinational corporations can use ISDS to file claims against states in which they invest, provided the state is party to a bilateral investment treaty (“BIT”) or a trade …
Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider
Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider
Nancy Welsh
While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed. Increasingly, states and investors express concerns regarding the costs associated with the arbitration process; some states are refusing to comply with arbitral awards; other states now hesitate to sign new bilateral investment treaties; and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. …
The Path Towards Defining “Investment” In Icsid Investor-State Arbitrations: The Open-Ended Approach, Melissa María Valdez García
The Path Towards Defining “Investment” In Icsid Investor-State Arbitrations: The Open-Ended Approach, Melissa María Valdez García
Pepperdine Dispute Resolution Law Journal
Article 25 of the International Convention on the Settlement of Investment Disputes left the notion of “investment” intentionally undefined, thus leaving its interpretation in the hands of arbitration tribunals, which has led to inconsistencies, confusion and debate regarding the true essence of what may appear as a routine concept. This article tries to explain that the proper meaning of “investment” under the Convention must be clarified not only by discussing the drafting history of the Convention, but by also examining doctrinal tendencies, key aspects of corresponding arbitration awards and customary international law and argues that arbitration tribunals should show strong …
Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment
Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment
Columbia Center on Sustainable Investment Staff Publications
Comments to USTR Re: Review of US Trade and Investment Agreements (July 17, 2017): CCSI, in response to the United States Trade Representative’s request for public comment to inform its performance review of US trade and investment agreements, submitted Comments that focused on the impact that investment protection provisions, enforceable through investor-state dispute settlement, have on rights-compliant, inclusive sustainable development within the United States and abroad.
Issues Concerning Enforcement And Dispute Resolution, Sean Flynn
Issues Concerning Enforcement And Dispute Resolution, Sean Flynn
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Transparency In International Commercial Arbitration, Catherine A. Rogers
Transparency In International Commercial Arbitration, Catherine A. Rogers
Catherine Rogers
Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards. In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly treated …
Emerging Practices In Community Development Agreements, Jennifer Loutit, Jacqueline Mandelbaum, Sam Szoke-Burke
Emerging Practices In Community Development Agreements, Jennifer Loutit, Jacqueline Mandelbaum, Sam Szoke-Burke
Columbia Center on Sustainable Investment Staff Publications
Community Development Agreements (CDAs) have the potential to facilitate the delivery of tangible benefits from large-scale investment projects, such as mines or forestry concessions, to affected persons and communities. To be effective, however, CDAs must be adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments, voluntarily adopted by companies, and demanded by communities. These practices are grounded in ensuring that all parties are sufficiently informed, capacitated, and prepared to engage in meaningful negotiations regarding how the investor’s operations should …
Korean Perspectives On Trade And Investment Multilateral Agreements And Dispute Resolution, Lucy Reed, E. Y. Park, Joongi Kim, Beomsu Kim, Kevin Kim
Korean Perspectives On Trade And Investment Multilateral Agreements And Dispute Resolution, Lucy Reed, E. Y. Park, Joongi Kim, Beomsu Kim, Kevin Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher
Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher
Georgia Journal of International & Comparative Law
No abstract provided.
Harmonizing Third-Party Litigation Funding Regulation, Victoria Sahani
Harmonizing Third-Party Litigation Funding Regulation, Victoria Sahani
Faculty Scholarship
Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a “wild west” due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation …
Harmonizing Third-Party Litigation Funding Regulation, Victoria A. Shannon
Harmonizing Third-Party Litigation Funding Regulation, Victoria A. Shannon
Victoria Shannon Sahani
What Finra Can Learn From Major League Baseball, Ben Einbinder
What Finra Can Learn From Major League Baseball, Ben Einbinder
Pepperdine Dispute Resolution Law Journal
The article presents information on the arbitration system formed by the Financial Industry Regulatory Authority (FINRA) with respect to the arbitration under the employment disputes in the financial industry. The arbitration models created by FINRA examine the disputes in the securities industry. Information on the impact of the Major League Baseball and its works on the employment disputes are also presented.
Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance
Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance
Columbia Center on Sustainable Investment Staff Publications
The Columbia Center on Sustainable Investment (CCSI) and the Humboldt-Viadrina School of Governance (HSVG) have initiated a process to discuss the desirability and feasibility of mechanisms to provide negotiation support for developing host countries in their negotiations with major investors.
At a first workshop held in October 2011, participants agreed on the need for an expansion of support for developing countries in their contract negotiations.
A second workshop was held at Columbia University in July 2012 that undertook a gap analysis between the existing sources of support for developing countries in relation to complex contracts and the countries’ needs for …
Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider
Becoming "Investor-State Mediation", Nancy A. Welsh, Andrea Kupfer Schneider
Faculty Scholarship
While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed. Increasingly, states and investors express concerns regarding the costs associated with the arbitration process; some states are refusing to comply with arbitral awards; other states now hesitate to sign new bilateral investment treaties; and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. …
The Boundaries Of Most Favored Nation Treatment In International Investment Law, Tony Cole
The Boundaries Of Most Favored Nation Treatment In International Investment Law, Tony Cole
Michigan Journal of International Law
Contemporary international investment law is characterized by fragmentation. Disputes are heard by a variety of tribunals, which often are constituted solely for the purpose of hearing a single claim. The law applicable in a dispute is usually found in a bilateral agreement, applicable only between the two states connected to the dispute, rather than in a multilateral treaty or customary international law. Moreover, the international investment community itself is profoundly divided on many issues of substantive law, meaning both that the interpretation given to international investment law by a tribunal will be determined largely by those who sit on it, …
The Role Of Precedent In Defining Res Judicata In Investor–State Arbitration, Pedro J. Martinez-Fraga, Harout Jack Samra
The Role Of Precedent In Defining Res Judicata In Investor–State Arbitration, Pedro J. Martinez-Fraga, Harout Jack Samra
Northwestern Journal of International Law & Business
As international arbitration, and investment arbitration in particular, becomes more prevalent, the risks of doctrinal fragmentation also increase, in part driven by the disparate treatment of the doctrine of res judicata throughout most jurisdictions, and in the arbitration context. Notwithstanding the general consensus regarding the broad contours of res judicata and its firm position as a principle of international law, there is little agreement regarding how it is to be administered. These developments threaten to undermine the international arbitration system, wresting from it normative legitimacy. The U.S. common law version of res judicata, which is distinct from res judicata as …