Law Commons^™

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 …

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 …

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 …

Burning Down The House? The Appellate Body In The Centre Of The Wto Crisis, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

In December 2019 the WTO Appellate Body (AB) will cease to operate unless the United States stops blocking new appointments. The US argues the AB has exceeded its mandate and has indicated it wants to ensure that the AB performs the role originally assigned to it in 1995. This paper discusses the Uruguay round negotiating history with the view to establish what “going back to 1995” entails. It concludes that this should not be difficult assuming a willingness of the WTO membership to seriously consider the US concerns and acceptance by the US of a commitment by the membership to …

Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Openness to international trade and adoption of antitrust laws can both curb anti-competitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears …

Twin Crises In The Wto, And No Obvious Way Out, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Pause for a moment. Assume that, by magic wand, the Trump Administration changes its attitude, and agrees to new appointments to the Appellate Body (AB). Have the WTO problems disappeared simply because a complete AB is now in place? Even if matters such as Rule 15 are addressed,1 the distinction between facts and law is clarified and a resolution is found to concerns regarding the AB overstepping of its mandate, we are left with the fact that new trade agreements are being routinely negotiated outside the confines of the WTO, leading enforcement to migrate elsewhere. Is the AB crisis simply …

Sovereignty And Complex Interdependence: Some Surprising Indications Of Their Compatibility, Charles F. Sabel

Faculty Scholarship

Even as democratic sovereignty and globalization are increasingly seen as incompatible in theory, this chapter argues that, in some important realms, they are proving compatible in practice. As tariffs have fallen to negligible levels, trade agreements among rich countries have come to focus on reconciling regulatory differences. In many sectors, novel forms of cooperation have emerged that allow trade partners deliberately to investigate and learn from one another’s practices, eventually recognizing the equivalence of regimes that are not strictly identical — and in the process extending domestic political oversight to relations among states while often heightening domestic accountability. The emergent …

The Legitimacy Of Economic Sanctions As Countermeasures For Wrongful Acts, Lori Fisler Damrosch

Faculty Scholarship

This essay offers an installment of what would have been a continuing conversation with David D. Caron, a close colleague in the field of international law, on themes that engaged both of us across multiple phases of our intersecting careers. The issues are fundamental ones for both the theory and the practice of international law, involving such core concerns as how international law can be enforced in an international system that is not yet adequately equipped with institutions to determine the existence and consequences of violations or to impose sanctions against violators; and how to ensure that self-help enforcement measures …

Competition Enforcement, Trade And Global Governance: A Few Comments, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

The debate on international antitrust has come from two perspectives. On the one hand, the trade community has emphasised the interface between trade policy and competition (policy and) enforcement. This interface, which was recognised from the outset of multilateral efforts to liberalise trade in what would become the GATT and eventually the WTO, focuses on the prospect that trade liberalisation through border instruments should not be undone by restrictive business practices (RBPs), placing a particular responsibility in this respect on competition enforcement. On the other hand, the antitrust community has emphasised the risk of inefficient enforcement when several jurisdictions can …

Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and EGA agreements which grant tariff concession through HS classifications beyond the six digit level ("ex outs") in favour of "green" goods and discuss how these initiatives fit into the WTO legal regime. Even if the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access …

Open Plurilateral Agreements, International Regulatory Cooperation And The Wto, Charles F. Sabel, Bernard Hoekman

Faculty Scholarship

Sustained high growth in many developing countries (‘the rise of the rest’) combined with long-standing WTO working practices hampers the ability of the WTO to perform its routine functions and paralyzes efforts to adapt to new circumstances. Preferential trade agreements have taken up some of the slack in addressing differences in domestic regulation of product safety, environmental and social conditions, but are exclusionary and inefficient from a global perspective. In this paper, we argue that a new type of agreement based on open plurilateral cooperation offers better prospects for groups of countries to explore and develop their potential common interests …

Outcome Report Of Roundtable On International Investment Regime And Access To Justice, Michelle Chan, Kanika Gupta, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

On October 18, 2017, the UN Working Group on Business and Human Rights and the CCSI co-hosted a one-day roundtable on the impacts of the international investment regime on access to justice for investment-affected individuals and communities.

Held at Columbia University in New York, the roundtable brought together 32 individuals from civil society organizations, communities affected by investments at the heart of investor-state claims, governments, academia, donor organizations, UN mandate holders, and other stakeholder groups. The roundtable provided an opportunity for participants to: (i) explore and assess the specific impacts of international investment agreements and investor-state dispute settlement on access …

Rethinking International Investment Governance: Principles For The 21st Century, Emma Aisbett, Barnali Choudhury, Olivier De Schutter, Frank Garcia, James Harrison, Song Hong, Lise Johnson, Mouhamadou Kane, Santiago Peña, Matthew Porterfield, Susan Sell, Stephen E. Shay, Louis T. Wells

Columbia Center on Sustainable Investment Books

Rethinking International Investment Governance: Principles for the 21st Century – written over the course of a week by a distinguished group of experts in international economic governance using the Booksprint process – aims to serve as a practical resource for those interested in the elements of an international investment system that promotes sustainable development and achieves legitimacy by providing benefits to all stakeholders.

The objective of Rethinking International Investment Governance is to change the terms of the debate so that societal values and goals are at the center of discussions about each reform proposal and process. This book rethinks international …

Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim

Faculty Scholarship

The Appellate Body (AB) of the WTO has issued over 140 reports but only eight separate opinions, four of which are genuinely dissenting. Such paucity, in fact, is the WTO’s implicit tradition inherited from GATT of prioritizing unanimous decisions, hoping they solidify the institution’s legitimacy and countries’ confidence in the system. But at the more individual level, an AB member’s decision to dissent is driven by multiple factors that have implications for the institution’s jurisprudence. First, the factors explain how the symbiotic relationship between an AB member and his or her nominating country – whose interests turn out to be …

Die Another Day: Zeroing In On Targeted Dumping: Did The Ab Hit The Mark In Us – Washing Machines?, Petros C. Mavroidis, Thomas J. Prusa

Faculty Scholarship

In US – Washing Machines, the WTO Appellate Body (AB) extended the prohibition of zeroing to the so-called exceptional (or W-T) methodology, where the dumping margin is established by comparing the weighted average normal value to export price of specific transactions. Given that the exceptional method was the only method under which the AB had not definitively rejected zeroing, this dispute may have hammered the last nail in the coffin of zeroing. Or, maybe not. The AB did not address a key issue, namely, what is the evidentiary standard that an investigating authority must meet in order to have …

Things Have Changed (Or Have They?): Tariff Protection And Environmental Concerns In The Wto, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and proposed EGA agreements which grant tariff concession in favor of "green" goods. We find that the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded. Still, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access conditional on meeting national regulations. We model the mechanism through which these tariff preferences provide incentives to change …

Last Mile For Tuna (To A Safe Harbor): What Is The Tbt Agreement All About?, Petros C. Mavroidis

Faculty Scholarship

The WTO Agreement on TBT (Technical Barriers to Trade) aims at taming NTBs (nontariff barriers), the main instrument segmenting markets nowadays. Some of the terms used to flesh out the commitments undertaken are borrowed from the GATT, and some originate in the modern regulatory reality as expressed through SDOs (standard-development organizations). It does not share a copy-cat function with the GATT, though. Alas, the WTO Appellate Body, by understanding words as ‘invariances’, e.g., interpreting them out of context (without asking what is the purpose for the TBT?), has not only exported its GATT case law, but also misapplied it into …

Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore

Faculty Scholarship

The CJEU has become a gatekeeper. Ever since Opinion 1/91, the CJEU has been imposing barriers to the recognition of decisions by foreign jurisdictions. Its recent Achmea decision is the natural consequence of case law so far. This attitude would not be problematic by itself since, through this attitude, the European Union would still be liable at the international plane, even if it did not implement its international obligations (liability- over property rules). This is not the end of the story. The CJEU accepts the, in principle, relevance of decisions by some international jurisdictions. However, the CJEU has repeatedly failed …

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.

Submission On The Draft General Comment On “State Obligations Under The Icescr In The Context Of Business Activities”, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In January 2017 CCSI made a submission to the Committee on Economic, Social and Cultural Rights, regarding its draft General Comment on “State obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities.” CCSI’s submission focused on: (1) host and home states’ obligations as they relate to international investment agreements (IIAs); (2) extraterritorial obligations in the context of outward investment; and (3) state obligations related to corruption issues.

In the submission, CCSI emphasized that states must ensure that existing treaties do not generate conflicts between obligations owed under IIAs and the Covenant (in …

The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem arises when, as the term loses meaning, random variations in language appear and persist, resulting in what we term a “grey …

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel

Faculty Scholarship

Governments increasingly are seeking to use bilateral and regional trade agreements to reduce the cost-increasing effects of differences in product market regulation. They also pursue regulatory cooperation independent of trade agreements. It is important to understand what is being done through bilateral or plurilateral mechanisms to address regulatory differences, and to identify what, if any, role trade agreements can play in supporting international regulatory cooperation. This paper reflects on experience to date in regulatory cooperation and the provisions of recent trade agreements involving advanced economies that have included regulatory cooperation. We argue for a re-thinking by trade officials of the …

Free Markets, State Involvement, And The Wto: Chinese State Owned Enterprises (Soes) In The Ring, Petros C. Mavroidis, Merit E. Jano

Faculty Scholarship

The WTO has struggled with the treatment of nonmarket economies (NMEs). What was a nonissue in the original GATT (because of the homogeneity of participants) became quite an issue with the accession of formally centrally planned economies, which were not transformed to market economies, at least not in the eyes of the incumbents. Contracting this issue has proved to be so far always wanting, and leaving it to adjudicators has not produced good results either. With respect to Chinese SOEs this risks continuing to be an issue, since the contractually agreed deadline (2016) after which China should not be treated …

Beyond Trade Deals: Charting A Post-Brexit Course For Uk Investment Treaties, Lise Johnson, Lorenzo Cotula

Columbia Center on Sustainable Investment Staff Publications

The Brexit referendum has raised questions about the future terms of the United Kingdom’s engagement with the world economy. While a debate over the UK’s future approach to trade deals has already begun, a similar discussion has yet to develop on the treaties that govern foreign investment. As this briefing note by Lorenzo Cotula of the International Institute for Environment and Development, and Lise Johnson of CCSI highlights, the stakes are high: ill-designed treaties could leave the UK excessively exposed to legal claims by foreign companies and could fail to address relevant economic, social and environmental challenges. While meaningful negotiations …

International Investment Agreements: Impacts On Climate Change Policies In India, China And Beyond, Lise Johnson, Brooke Güven

Columbia Center on Sustainable Investment Staff Publications

Mitigating and adapting to climate change will require a fundamental reorientation of our global economy as we move away from fossil fuels and transition to a low carbon and climate-resilient world. This reorientation depends on government actions to help catalyze and channel financial flows in new directions and away from business-as-usual practices.

International investment agreements (IIAs) – treaties that now number over 3,000 and have the objective of promoting and protecting cross-border investment flows_could potentially play a key role in these efforts to scale up and (re)direct investments to meet climate change mitigation and adaptation needs. As presently drafted and …

Conference Report: Climate Change And Sustainable Investment In Natural Resources: From Consensus To Action, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network, Sabin Center For Climate Change Law

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment has produced this conference report on CCSI’s Conference on Climate Change and Sustainable Investment in Natural Resources: From Consensus to Action. A shorter outcome document, which was disseminated at COP22, is also available. These documents summarize the discussions at the eleventh annual Columbia International Investment Conference, which took place on November 2-3, 2016, at Columbia University. The Conference offered a high-level opportunity to discuss how countries can reduce their greenhouse gas emissions in accordance with the Paris Agreement, while also advancing the Sustainable Development Goals, and in particular the important implications for the …

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I …