Law Commons^™

International Investment Law And The Extractive Industries, Ella Merrill, Jesse Coleman, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment

As of April 2022, the United Nations Conference on Trade and Development (UNCTAD) tallied 3,218 international investment treaties, of which 2,558 are in force. Investors in extractive industries (the oil, gas, and mining sectors) have used investor-state dispute settlement (ISDS) mechanisms embedded in these treaties to challenge a wide range of host state actions and inactions that have allegedly negatively affected their investments. Those claims, and the threats thereof, restrict states’ ability to maximize the benefits, and their ability to limit environmental and social harms, resulting from the exploitation of natural resources. This briefing note provides an introduction to international …

Climate Action Needs Investment Governance, Not Investment Protection And Arbitration, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

A response by the Columbia Center on Sustainable Investment to the OECD Public Consultation on Investment Treaties and Climate Change.

The Columbia Center on Sustainable Investment (CCSI) — a joint research center of Columbia Law School and the Earth Institute at Columbia University — explores elements of the international investment legal framework, including the impact of investment treaties, investor–state dispute settlement, and home and host government policies governing inward and outward investment, among many other issues.

The Role Of Investor-State Tribunals In Determining The Scope And Content Of The Fair And Equitable Treatment Standard – Legitimate Expectations And Proportionality, Simon Bianchi

LL.M. Essays & Theses

In recent years, the legitimacy of the investor-State dispute settlement (“ISDS”) has been called into question and several initiatives, such as the UNCITRAL Working Group III, are currently looking at various ways to enhance such legitimacy and ensure the sustainability of ISDS. In this respect, certain scholars like Professors Sornarajah and van Harten claim that the interpretative process undertaken by investor-State tribunals has contributed to this legitimacy crisis among others because the application of vague standards, such as fair and equitable treatment (“FET”), involves applying subjective notions of what adjudicators perceive as desirable developments of investment law. By contrast, other …

Advocates Say Isds Is Necessary Because Domestic Courts Are ‘Inadequate,’ But Claims And Decisions Don’T Reveal Systemic Failings, Maria Rocha, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

Proponents of including investor-state dispute settlement (ISDS) provisions in treaties, contracts, and even national laws argue that ISDS is necessary because domestic courts are “inadequate.” Without this mechanism, foreign investors would be dependent on domestic courts and administrative mechanisms, which, proponents claim, are often inefficient, slow, biased, corrupt, and lacking in international law expertise, especially in developing countries. As one insight to analyze the “inadequate courts” argument, CCSI has examined treaty-based ISDS cases in which investors complained of domestic court proceedings or decisions, including the specific complaints and the tribunals’ analysis of those claims.

Impacts Of Investment Treaties On Health And Human Rights, Gus Van Harten

Articles & Book Chapters

While investment treaties could help protect health and promote human rights, they are rather often used as a means to discourage governments from taking action. The treaties allow foreign investors to initiate investor-state dispute settlement (or ISDS) proceedings against states for their legislative, executive, administrative, and judicial decisions at any level. Thus, they provide a powerful tool for “foreign” investors to frustrate state action in virtually any area, including health and human rights. This article describes how ISDS provisions have impacted health-related decision- making by states and, in so doing, weakened their abilities to fulfill their human rights obligations.

The Role And Importance Of A Bilateral Treaties On Promotion And Protection Of Investments, E Tulyakov

ProAcademy

This p a p e r discusses the ro le a n d influence o f B ila te ra l Investm ent Treaties. For th a t , exam ples a re p ro v id e d from the U zbek BITs a n d thus, th e ir ro le in the influence o f the fo re ig n investm ent increase a re a lso noted.

The Sovereign Right To Tax: How Bilateral Investment Treaties Threaten Sovereignty, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

Bilateral Investment Treaties, ("BITs"), are both a response to and likely at least partly responsible for the significant increase in international investments in the last fifty years. BITs provide potential private investors government assurances regarding a variety of factors relevant to their investments. Among these assurances, BITs regularly address the tax authority that the host government has with regard to the foreign investor, often protecting that foreign private investor against changes to the host country's tax system. If an investor believes the host country has violated the terms of the BIT, that investor can bring a claim against the country …

230+ Law And Economics Professors Urge President To Remove Isds From Nafta, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI helped launch a letter signed by over 230 law and economics professors urging President Trump to remove ISDS provisions from NAFTA. As the letter notes, the ISDS mechanism “undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law.” The letter builds upon the center’s past work, including a similar letter published last year calling on Congress to reject the Trans Pacific Partnership for its inclusion of ISDS, and broader analyses of both the threat that ISDS poses to domestic US law and of the ISDS provisions that were included in …

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 …

International Investment Agreements: Are Their Policy Aims Served By Their Broad Definitions Of Covered “Investors” And “Investments”?, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

With negotiation of “mega-treaties” such as the 12-country Trans-Pacific Partnership (TPP) and investment treaties between the EU and other large economies such as Canada and the United States, international investment agreements (IIAs) are gaining fame and raising a host of important policy questions. Among those questions are who/what the treaties benefit and at what cost.

The Foreign Investor: Current Approaches Toward United States Immigration Law, Austin T. Fragomen, Jr., Gwendolyn M. Robosson

Vanderbilt Journal of Transnational Law

The topic of representing the foreign investor under the Immigration and Nationality Act is one of growing significance. Increases in the inflow of foreign funds have been substantial, with net foreign investment in the United States rising to an annual rate of more than eighty billion dollars in the second quarter of 1984, compared to thirty-four billion dollars in 1983. The foreign investor seeking entry into the United States to oversee an investment enterprise faces, however, a dearth of directly relevant provisions in the Immigration and Nationality Act. This article addresses the salient features of United States immigration law relating …