Law Commons^™

Preparing Legal Frameworks For Environmental Disasters: Practical Considerations For Host States, Brooke Guven, Perrine Toledano, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Projects in the extractives sector carry risks of lasting, and sometimes irreversible, damage to the environment. Nonetheless, these projects are important for accelerating the economic development of host countries. Governments seeking to mitigate the adverse effects of foreign investment often face pushback from investors that are unwilling to change their practices in order to avert environmental disaster. This report sets forth certain steps that host-governments can take during the pre-investment, operation, and enforcement phases of extractives projects to provide financial and other protection in the context of environmental disasters associated with private sector investments.

Upon comparative review of five Case …

Environmental Injustice: How Treaties Undermine Human Rights Related To The Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Growing cries for action to effectively address the climate and other environmental crises hold important implications for the governance of cross-border investments. Policymakers and environmental advocates have often overlooked how provisions granted by states in international investment agreements (IIAs) have been used by investors to challenge government measures taken in the public interest to protect the environment and advance environmental justice.

This 2019 paper, published in the Sciences Po Legal Review issue devoted to the climate crisis, explains how the investor-state dispute settlement (ISDS) mechanism, made available to investors in thousands of bilateral and multilateral trade and investment agreements, may …

Executive Summary On Ensuring Economic Viability And Sustainability Of Coffee Production, Jeffrey D. Sachs, Kaitlin Y. Cordes, James Rising, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Coffee, the world’s favorite beverage, provides livelihoods for at least 60 million people across dozens of countries. Yet this beloved drink is experiencing a sustainability crisis. A sustained decline in world coffee prices has squeezed coffee producers, and thrown a tremendous number of producers below the global extreme poverty line of US$1.90 per day. This briefing note presents our research into sustainability within the coffee sector, including the results of our analytical and empirical modeling, and provides several recommendations.

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 …

Internet Jurisdiction: Using Content Delivery Networks To Ascertain Intention, Patrick Lin

LL.M. Essays & Theses

Specific jurisdiction in civil litigation centers on the rather general,yet immutable, concept of intention. Although the word “intention” does not surface prominently in the personal jurisdiction case law, it is clearly intrinsic to the concept of “purposeful availment”. On the Internet, however, intention is hard to ascertain: how does a court, for example, determine whether the defendant intended that its website, application, or advertisement within a mobile application should end up in the forum state? In answering such a question, courts have historically used one of two approaches to establish intent: (i) a targeting test or (ii) a degree of …

The Paradox Of Contracting In Markets, Robert E. Scott

Faculty Scholarship

Traditional economic analysis distinguishes economic organization along three dimensions: firm, contract, and market. This categorization is misleading in any number of respects, but none more so than the assumption that contract and market are separate modes of exchange. In fact, other than barter, which is almost unknown in contemporary commercial transactions, every market transaction is implemented by contract. Thus, in markets the two modes of exchange are inextricably combined. Moreover, the vast majority of contract activity occurs in some form of market, so it does not require much loss of generalization to say that not only are contracts in all …

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.

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 …

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Aligning Investment Treaties With Sustainable Development Goals, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to …

Legal Frameworks & Foreign Investment: A Primer On Governments’ Obligations, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke, Rumbidzaii Mawen

Columbia Center on Sustainable Investment Staff Publications

Legal frameworks, and how they interact, are often invisible in the day to day. Yet they are powerful forces that influence government actions and that help to shape who benefits and who loses from foreign investment. Understanding these legal frameworks, and how they interact, is critical for anyone concerned with how foreign investment can be better harnessed to support, rather than weaken, sustainable development and human rights.

This primer provides a brief overview of host government obligations under international investment law, international human rights law, domestic law, and relevant investor-state contracts. It also highlights some of the ways in which …

Inconsistency's Many Forms In Investor-State Dispute Settlement And Implications For Reform, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Attracting investment in agriculture has been a key policy goal of governments in the global south. Development partners have supported these policies. But what do governments hope to achieve by attracting investment in the agricultural sector? Why are companies interested in investing? What is in it for local communities? And what is the role of lawyers? This primer provides an introduction to some of the key issues that arise in the negotiation of contracts linked to investments in agriculture, and practical guidance for how to approach common issues. Section 1 of this primer outlines the typical goals of three important …

Outcome Report On The Climate Crisis, Global Land Use And Human Rights Conference, Mateusz Kasprowicz, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

On September 27^th, the Columbia Center on Sustainable Investment (CCSI), the Sabin Center for Climate Change Law, Landesa, the New York City Bar Association International Environmental Law Committee, and Wake Forest Law School hosted a day-long conference on the intersection between land use, the climate crisis and clean energy transition, and human rights.

Held at the Ford Foundation Center for Social Justice, the conference brought together individuals from civil society organizations, governments, and academia, as well as lawyers, climate scientists, land-rights experts, indigenous representatives and other stakeholder groups. The panelists analyzed the critical role that land plays in …

Securing Adequate Legal Defense In Proceedings Under International Investment Agreements: A Scoping Study, Lise Johnson, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

CCSI prepared a Scoping Study for the Ministry of Foreign Affairs of the Netherlands. Also available are:

• A summary version of the study (33 pages)
• A webinar (March 24, 2020), hosted by CCSI and the Ministry of Foreign Affairs of the Netherlands, discussed the Scoping Study and its findings (see also accompanying slides with speaking notes).
• A webinar organized by UNCITRAL (April 21, 2020). CCSI presented the Scoping Study. A video link of the webinar along with CCSI’s slides are available in English (with speaking notes) and French at that link. CCSI Senior Fellow Karl Sauvant also presented his UNCITRAL …

Environmental Injustice: How Treaties Undermine The Right To A Healthy Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Our planet faces unprecedented threats, including irreversible global warming, loss in biodiversity, and water pollution and water scarcity. The impacts of these environmental crises also threaten human rights and exacerbate inequality. Slowing these worsening environmental trends – and addressing the impacts of environmental change on populations – will require cumulative policy responses at the national and international level.

Agricultural Investments: A Primer For Host Government Lawyers And Local Lawyers In Private Practice, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

Attracting investment in agriculture has been a key policy goal of governments in the global south. Development partners have supported these policies. But what do governments hope to achieve by attracting investment in the agricultural sector? Why are companies interested in investing? What is in it for local communities? And what is the role of lawyers? This primer provides an introduction to some of the key issues that arise in the negotiation of contracts linked to investments in agriculture, and practical guidance for how to approach common issues. Section 1 of this primer outlines the typical goals of three important …

Ensuring Economic Viability And Sustainability Of Coffee Production, Jeffrey D. Sachs, Kaitlin Y. Cordes, James Rising, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Coffee, the world’s favorite beverage, provides livelihoods for at least 60 million people across dozens of countries. Yet this beloved drink is experiencing a sustainability crisis. A sustained decline in world coffee prices has squeezed coffee producers, and thrown a tremendous number of producers below the global extreme poverty line. This report presents our research into sustainability within the coffee sector, including the results of our analytical and empirical modeling, and provides several recommendations.

Fixing The Business Of Food: The Food Industry And The Sdg Challenge, Barilla Center For Food And Nutrition, Sustainable Development Solutions Network, Columbia Center On Sustainable Investment, Sanda Chiara Lab

Columbia Center on Sustainable Investment Staff Publications

In collaboration with the Barilla Center for Food and Nutrition, the UN Sustainable Development Solutions Network, and the Santa Chiara Lab of the University of Siena, CCSI presented its first report on Fixing the Business of Food.

The document, part of a two-year effort, highlights the sustainable development challenge faced by the food industry. By proposing a Four Dimension framework, the report asks four overarching questions for companies in the food sector to address alignment with the SDGs:

1. Does the company contribute to healthy and sustainable dietary patterns through its products and strategy?
2. Are the company’s production processes economically, socially, …

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

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

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

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 …

Briefing For Civil Society Organizations – Understanding Commercial Eucalyptus Plantations: How Do They Work And What Are Their Environmental Impacts?, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

If a company wants to use a community’s land for eucalyptus plantations, the community should think carefully about whether this is a good idea. Civil society organizations that support communities can use this briefing to help communities understand the potential environmental impacts the community should be aware of. The briefing explains plantation forestry and the life-cycle of eucalyptus tree plantations. It also notes the different possible negative environmental impacts of eucalyptus plantations before exploring how this information can be factored into community decision-making about a proposed eucalyptus plantation. While the briefing focuses on eucalyptus plantations, a lot of it will …

Modelling For Sustainable Development: New Decisions For A New Age, Andrea M. Bassi, Liesbeth Casier, David Laborde, Max Linsen, David Manley, Nicolas Maennling, Howard Mann, Morten Siersted, Carin Smaller, Iain Steele, David Uzsoki, Johnny West

Columbia Center on Sustainable Investment Books

This book outlines how next-generation models need to integrate social and environmental components in government and corporate decision-making. Traditionally, these models have focused on profits and taxes, but to achieve the UN’s Sustainable Development Goals, they need to take a more holistic view. The book builds on the expanding practices of modelling complex decision making requirements and indicators. It considers the challenges of decision making in the face of incomplete and sometimes inaccurate information, the role of multiple stakeholders, and the capacity of governments and others to use models effectively.

Human Rights Law And The Investment Treaty Regime, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with …

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 …

The Policy Implications Of Third-Party Funding In Investor-State Dispute Settlement, Brooke Guven, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In this Working Paper, CCSI analyzes underexplored yet critical policy issues surrounding the use of third-party funding in ISDS. It considers the costs and benefits of the practice, asks whether it is desirable or undesirable that third-parties be permitted to invest in ISDS claims, and if so, under what circumstances and in order to achieve what objectives, and overviews policy responses, including a total or partial ban and various regulatory responses, that may be appropriate to manage identified impacts.

Ccsi Submits Written Views To Us Department Of State Regarding Uncitral’S Working Group Iii, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In connection with the US Department of State’s Annual Advisory Committee on Private International law meeting in May 2019, CCSI submitted written views regarding UNCITRAL’s Working Group III on ISDS reform. CCSI’s comments highlighted specific areas of CCSI’s research as it relates to the US Government and its work within the Working Group. Specifically, US investment treaty negotiating objectives specify that covered foreign investors in the United States should not be accorded greater substantive rights than domestic investors. CCSI highlights the ways in which greater procedural rights afforded under investment treaties to foreign investors in practice result in greater substantive …