International Trade Law Commons^™

How The International Investment Law Regime Undermines Access To Justice For Investment-Affected Stakeholders, Ladan Mehranvar

Columbia Center on Sustainable Investment

For over a decade now, the international investment law regime, which includes investment treaties and their central pillar, the investor-state dispute settlement (ISDS) mechanism, has been facing sustained calls for reform. These have largely centered on the concerns regarding the high costs of ISDS, the restrictions placed by the investment treaty regime on the right—or duty—of states to regulate in the public interest, and the questionable benefits arising from these treaties in the first place. Several states have taken proactive measures: some have revised investment treaty standards to better protect their regulatory powers; others have introduced new approaches to investment …

Editor's Note, Juliette Jackson, Bailey Nickoloff

Sustainable Development Law & Policy

The Sustainable Development Law and Policy Brief (“SDLP”) is celebrating twenty-two years of legal scholarship on issues related to environmental, energy, natural resources, and international development law. SDLP continues to provide cutting-edge solutions to these legal issues in the face of the global COVID-19 Pandemic, while also transitioning back into a “new normal.” This issue is no different, as we published articles challenging our lawmakers and policy heads to address the impending needs of our communities to develop more sustainable infrastructure—needs that are only exacerbated by man-made climate change. We are proud of the work published, and we are forever …

Can Mediation Provide Remedy For Human Rights Violations? A Quest For Justice Using A Development Bank Accountability Mechanism, Natalie Bugalski, David Pred

Perspectives

This essay describes what it takes—the enormous tenacity, solidarity, courage and skill required—for communities and their civil society partners to seek recourse through the dispute resolution processes of development bank accountability mechanisms. While these mechanisms can be the crucial centerpiece of an effective strategy, their critical shortcomings mean that community advocates must often engage in Olympian advocacy gymnastics to achieve even a small measure of redress. The essay makes recommendations for strengthening community-centered accountability in development finance, so that remediation and prevention of harm become the norm, and not the rare exception.

The Inspection Panel And International Law, Daniel D. Bradlow

Perspectives

This essay argues that the creation of the Inspection Panel (Panel) was an important international legal development. It was the first time that an international organization established a mechanism that enabled those communities and individuals who claimed they had been harmed by the decisions and actions of the international organization to hold the organization accountable. The creation of the Panel also promoted the role of non-state actors in making the soft international law that is applicable to the international financing of development projects. This essay will discuss each of these developments before drawing some conclusions about the Panel and international …

The Promise Of Collaborative Problem Solving In Enhancing Iam Effectiveness, Gina Barbieri

Perspectives

This essay analyses the effectiveness of collaborative problem-solving through mediation within accountability mechanisms, and considers ways in which western mediation principles should be enhanced to ensure fair outcomes given the power imbalance at play in development disputes. It also considers whether there is any scope to use problem solving principles to address questions of compliance, arguing for consideration of a hybrid approach to bolster tools available to IAMs, and so strengthen outcomes for communities.

Voices From Below—Africa’S Contribution To The Development Of The Norm Of Corporate Responsibility To Respect Human Rights, Akinwumi Olawuyi Ogunranti

PhD Dissertations

The long conversations about corporate responsibility predominantly take place in forums and conferences in the Global North. Yet, the majority of the human rights abuses and their impacts are felt by peasants, farmers, children, and women in local communities in the Global South who do not have a voice in the institutionalized governance systems that animate global affairs. This thesis answers the question of how norms and human rights institutions in Africa can influence the corporate responsibility to respect (CR2R) norm as embedded in pillar II of the United Nations Guiding Principles on Business and Human Rights. Through the theory …

The Disaster Chain: Counter-Mapping Global Value Chains, Peer Zumbansen

Northwestern Journal of International Law & Business

Abstract: Prevailing accounts by consultancies and logistics scholars present global value chains [GVCs] as an expression of contemporary international economic integration and connectivity. As such, they are considered crucial to the pursuit of economic growth and prosperity. At the same time, GVCs are deemed susceptible to “disruptions” through natural catastrophes, restrictive trade policies or pandemics. Left out of the standard narratives, even in light of the experience of the global Coronavirus pandemic, is the actual, as such disruptive impact of global value chain capitalism on human and natural lives. Dominant depictions of global value chain governance treat labor, environment and …

Mining In Guatemala: Human Rights And Investment Treaty Arbitration, Valentina Capotosto

Human Rights Brief

No abstract provided.

Modern Provisions In Investment Treaties, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Governments are pursuing substantive and procedural reform of the international investment regime in recognition that there are fundamental, systemic, and interrelated concerns about current approaches to investment governance, and that current approaches have failed to meet their purported objectives.

A vast majority of the 1,023 publicly-known treaty-based claims have been brought under “old-generation” treaties. In 2018, for example, 60% of such claims were brought under treaties originally concluded in the 1990s or earlier, and all but one was filed under a pre-2011 treaty. These old-generation treaties include vague and far-reaching obligations for states, generally do not include any reference to …

Investment Promotion And Facilitation For Sustainable Development, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

Investment is a critical component of sustainable development. In particular, under the right conditions, foreign direct investment (FDI) can improve economic growth and living standards, create jobs, transfer technology and know-how and result in supply chain upgrading. However, its benefits are not automatic, and, if not carefully governed, investment can result in harm to the environment, labour standards and lead to tax evasion or other undesirable outcomes. Investment promotion and investment facilitation, in turn, can help states attract, expand and retain FDI.

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 …

Reforming The Global Value Chain Through Transnational Private Regulation, Kishanthi Parella

Kish Parella

In many industries, corporations have changed the organization of their production from a vertically integrated model to a model that is often characterized by outsourcing-shifting business activities to external parties -and offshoring, where production occurs at sites overseas. The global value chain (GVC) for an American corporation often involves several tiers of suppliers. One end of the GVC is often occupied by a multinational buyer (MNB), such as a large brand name corporation. At the opposite end of the value chain are the factories, farms, and other production sites that supply multinational corporations with their goods. This organization of production …

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 …

...And Trade, Harlan G. Cohen

Scholarly Works

This short essay, part of a symposium on Gregory Shaffer’s Retooling Trade Agreements for Social Inclusion, argues that the normal science of trade law lacks the tools to confront trade law’s greatest current challenges. Instead, breaking out of trade law’s two-step politics, with its division of “growing the pie” and distributing its slices, and responding to new challenges of climate change, the digital economy, and artificial intelligence will require a new politics built on and designed to build new shared narratives embodying new policy paradigms.

Corporations And Sustainability, Beate Sjåfjell, Christopher Bruner

Scholarly Works

This chapter introduces the Handbook, providing an overview of its aims and structure, as well as the core research questions that the contributions to it collectively address. It discusses sustainability-related problems associated with the legal form of the corporation, and provides background on state-of-the-art research in natural sciences and other relevant fields that inform our understanding of sustainability. It concludes with specific research questions and a presentation of the Handbook’s structure.

Borders Rules, Beth A. Simmons

All Faculty Scholarship

International political borders have historically performed one overriding function: the delimitation of a state’s territorial jurisdiction, but today they are sites of intense security scrutiny and law enforcement. Traditionally they were created to secure peace through territorial independence of political units. Today borders face new pressures from heightened human mobility, economic interdependence (legal and illicit), and perceived challenges from a host of nonstate threats. Research has only begun to reveal what some of these changes mean for the governance of interstate borders. The problems surrounding international borders today go well-beyond traditional delineation and delimitation. These problems call for active forms …

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 …

Does Trade Trump Law In The Protection Of Human Rights? International Trade, Law, And Human Rights In South Africa And South Korea, Cristina Campo

University of Miami International and Comparative Law Review

International relations have become categorically dependent on the sophisticated trading systems that interconnect and empower sovereign states. Thus, a state’s focus on protecting the rights of its individuals comprising and affected by that system would appear to come secondary to the economic decisions involved in conducting trade agreements. This article asks whether the international trade regime can be used to further the protection of human rights or whether such protection should be better left in the hands of legal entities in international bodies and sovereign states. I analyze South Korea and South Africa’s legal and trade regimes—two of the world’s …

Human Rights Protections In International Supply Chains—Protecting Workers And Managing Company Risk: 2018 Report And Model Contract Clauses From The Working Group To Draft Human Rights Protections In International Supply Contracts, Aba Section Of Business Law, David Snyder

Articles in Law Reviews & Other Academic Journals

This report and the model contract clauses that it contains are an effort to help companies provide legally effective and operationally likely human rights protections for workers in international supply chains. The report is the product of the Working Group to Draft Human Rights Protections in International Supply Contracts, which is a unit of the American Bar Association Business Law Section. After identifying the problems, such as human trafficking and factory collapses as well as developing compliance obligations under federal, state, and foreign law, the report explains the difficulty of drafting legally effective clauses. Most of the issues result from …

Socially Responsible Corporate Ip, J. Janewa Oseitutu

Vanderbilt Journal of Entertainment & Technology Law

Many companies practice corporate social responsibility (CSR) as part of their branding and public relations efforts. As part of their CSR strategies, some companies adopt voluntary codes of conduct in an effort to respect human rights. This Article contemplates the application of CSR principles to trade-related intellectual property (IP). In theory, patent and copyright laws promote progress and innovation, which is why IP rights are beneficial for both IP owners and for the public. Trademark rights encourage businesses to maintain certain standards and allow consumers to make more efficient choices. Though IP rights are often discussed in relation to the …

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.

Legal Status Of Drones Under Loac And International Law, Vivek Sehrawat

Penn State Journal of Law & International Affairs

No abstract provided.

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 …

You Say Embargo, I Say Bloqueo - A Policy Recommendation For Promoting Foreign Direct Investment And Safeguarding Human Rights In Cuba, Marcia Narine Weldon

Articles

The United States is the only major industrialized nation that restricts trade with Cuba. Although President Obama issued several executive orders that have facilitated limited trade (and President Trump has scaled some back), an embargo remains in place, and by law, Congress cannot lift it until, among other things, the Cuban government commits to democratization and human rights reform. Unfortunately, the Cuban and U.S. governments fundamentally disagree on the definition of "human rights, " and neither side has shown a willingness to compromise. Meanwhile, although some US. investors clamor to join their European and Canadian counterparts in expanding operations in …

Transparency Evolution: More Than The Right To Know, Ljiljana Biuković, Pitman B. Potter

All Faculty Publications

Providing an analysis of global regulation and the impact of international organizations on domestic laws, this collection grew out of a central objective to explore methods of domestic engagement with international trade and human rights norms, and the inherent difficulties in establishing balanced links between these two international law regimes. The common thread of the papers in this collection is a focus on the application of socio-legal normative paradigms in building knowledge and policy support for coordinating local performance with international trade and human rights standards in ways that are mutually sustaining.

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 …

Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall

Fordham Law Review

Lawyers are beginning to play an important role in strengthening the system of transnational governance that regulates business and human rights. In setting the background to our discussion of lawyers’ role in this context, Part I of this Article provides a general overview of the emergence of the transnational governance regime. Part II then describes some of the governance instruments that attempt to prevent and rectify the adverse human rights impacts of business activities. Part III discusses the extent to which lawyers are advising their business clients on human rights issues, the factors that may inhibit or encourage the provision …

Transformations In Statehood, The Investor- State Regime, And The New Constitutionalism, A. Claire Cutler

Indiana Journal of Global Legal Studies

This paper examines the changing boundaries of statehood resulting from transformations in the nature and operation of public and private authority over local and global politico-legal orders. Transformations in the political purposes of states are being driven by powerful elites who advance a new form of constitutional governance. New constitutionalism, as evidenced by the investor-state regime, subordinates the interests, purposes, and rights of national citizens to those of foreign, transnational politico-legal, and economic elites. This regime is a highly privatized order that is expanding in influence, both in terms of the commercial activities under its remit, and in terms of …

Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis

Journal Articles

Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious …

Reforming The Global Value Chain Through Transnational Private Regulation, Kishanthi Parella

Scholarly Articles

In many industries, corporations have changed the organization of their production from a vertically integrated model to a model that is often characterized by outsourcing-shifting business activities to external parties -and offshoring, where production occurs at sites overseas. The global value chain (GVC) for an American corporation often involves several tiers of suppliers. One end of the GVC is often occupied by a multinational buyer (MNB), such as a large brand name corporation. At the opposite end of the value chain are the factories, farms, and other production sites that supply multinational corporations with their goods. This organization of production …