Law Commons^™

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 …

Outcome Report Of Workshop On International Investment And The Rights Of Indigenous Peoples, Kaitlin Y. Cordes, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

On May 12, 2016, the United Nations (UN) Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, and the Columbia Center on Sustainable Investment hosted a one-day workshop on international investment and the rights of indigenous peoples. This outcome document synthesizes the discussions that took place during the May 12 workshop.

The workshop was part of a series of consultations undertaken to support the Special Rapporteur's Second Thematic Analysis on the Impact of International Investment Agreements on the Rights of Indigenous Peoples. Held at the Ford Foundation in New York, the workshop brought together 53 academics, practitioners, indigenous …

220+ Law And Economics Professors Sign Letter Opposing Isds In The Tpp, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI helped launch a letter joined by over 220 law and economics professors calling on Congress to oppose the final Trans-Pacific Partnership agreement because that treaty includes the investor-state dispute settlement (ISDS) mechanism. As the letter notes, the ISDS mechanism “threatens to dilute constitutional protections, weaken the judicial branch and outsource our domestic legal system to a system of private arbitration that is isolated from essential checks and balances.” Despite the Obama administration’s claims to have addressed growing concerns about the ISDS system, the final TPP would instead vastly expand the ISDS threat to the rule of law and …

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.

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 …

Periodic Review In Natural Resource Contracts, Jacky Mandelbaum, Salli Anne Swartz, John Hauert

Columbia Center on Sustainable Investment Staff Publications

Periodic contract review mechanisms, which are provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract, are mechanisms that may facilitate the process of negotiating contractual changes to accommodate changing circumstances over the term of extractive industries contracts. Through the review of existing extractive industries agreements, this article considers how such review mechanisms have been incorporated into existing contracts and the use of such mechanisms as a tool for maintaining good relationships between the parties. In addition, the article suggests a new approach to the drafting of these mechanisms by negotiating …

The Outsized Costs Of Investor–State Dispute Settlement, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The negotiation of several mega-treaties in 2015, including the Trans-Pacific Partnership (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP), the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and other regional agreements, has generated substantial public discussion about the protections and privileges afforded to multinational enterprises through the investor-state dispute settlement (ISDS) mechanism in these treaties. ISDS has increasingly raised concerns among certain governments and civil society groups, particularly as a growing number of ISDS cases involve investors challenging a range of governmental measures taken in good faith and in the public interest, including measures related to environmental protection, public health …

Tpp Would Let Foreign Investors Bypass The Canadian Public Interest, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In early October, prime ministerial candidate Justin Trudeau promised Canadians “a full and open public debate” on the Trans-Pacific Partnership. With 30 chapters that would bind Canada to sweeping agreements on everything from services to intellectual property to the environment to procurement, there is much to debate.

The Tpp’S Investment Chapter: Entrenching, Rather Than Reforming, A Flawed System, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

During the negotiations of the Trans-Pacific Partnership (TPP) agreement, many stakeholders raised strong concerns about the Investment Chapter of the TPP, and in particular, the investor-state dispute settlement mechanism (ISDS). The US Trade Representative (USTR) and other representatives of the negotiating partners assured the stakeholders that the TPP’s investment chapter would respond to the legitimate concerns about expansive investor protections and ISDS. The actual text, however, when made public, showed the opposite: a further evisceration of the role of domestic policy, institutions, and constituents. In their current form, the TPP’s substantive investment protections and ISDS pose significant potential costs to …

Next Generation Treaty – India’S New Model Bit Makes It Clear That Its Goal Is To Accomplish More Than Investor Protection, Lisa E. Sachs, Lise Johnson, Sudhanshu Roy

Columbia Center on Sustainable Investment Staff Publications

The April release of India’s draft model bilateral investment treaty 1(BIT), which is expected to be approved by the cabinet soon, has generated a rich public debate on its international investment regime. There are important questions about the purpose and content of investment treaties, both in India and other countries. However, some reactions – like Augusts Law Commission report suggesting that the model BIT was not sufficiently investor-friendly – frame the discussion too narrowly, ignoring key questions and objectives behind India’s transitioning investment policy regime.

Why Fast Track Is A Dangerous Gift To Corporate Lobbies, Jeffrey D. Sachs, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

The Obama Administration is now on track to get "fast track" legislation through the Senate, heading towards a close vote in the House. The end goal is to conclude two major business treaties: the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP) and the Trans-Pacific Partnership Agreement (TPP). The House Democrats are right to withhold their support until key treaty positions favored by the White House are dropped.

Not So Fast, Jeffrey D. Sachs, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

President Barack Obama and the Republican leadership in Congress are trying to pass "fast track" legislation in order to push through major economic agreements with eleven countries of the Pacific region (the Trans-Pacific Partnership) and Europe (the Trans-Atlantic Trade and Investment Partnership) without the possibility for Congressional amendments. Both are being sold generally as "trade agreements," yet they involve key areas of business law and regulation far beyond trade. Before Congress approves fast track, these agreements need to be made public and exposed to thorough public scrutiny.

Investor-State Dispute Settlement, Public Interest And U.S. Domestic Law, Lise Johnson, Lisa E. Sachs, Jeffrey D. Sachs

Columbia Center on Sustainable Investment Staff Publications

As negotiations are ongoing in the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP), CCSI staff and Jeffrey Sachs discuss the implications of investor-state dispute settlement (ISDS) for domestic law and policy, focusing on effects within the US. The paper concludes that the risks ISDS poses for domestic law are significant and unjustified, and that there are preferable policy alternatives to pursue as a means of protecting the rights of investors operating overseas.

Eyes Wide Shut On Isds, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Recent agreement among congressional leaders on a “fast-track” bill may have been a victory for the Obama administration’s trade agenda. However, members of congress should take a look at the recent Bilcon case, decided by a NAFTA tribunal, to understand what they are signing up for.

New Weaknesses: Despite A Major Win, Arbitration Decisions In 2014 Increase The Us’S Future Exposure To Litigation And Liability, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In 2014, the US continued its overall record of success in defending investment treaty claims. But it did suffer losses on a number of important issues, and those losses will render the US (and its treaty parties) vulnerable to future claims, litigation expense, and liability. The US’s recent losses, which have thus far been largely ignored in commentary on the US’s experiences in investment arbitration, are highlighted in this briefing note.

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 Mauritius Convention On Transparency: Comments On The Rreaty And Its Role In Increasing Transparency Of Investor-State Arbitration, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In July 2014, the United Nations Commission on International Trade Law (UNCITRAL) adopted the Mauritius Convention on Transparency that, if widely adopted, will do much to increase the transparency of investor-state arbitrations conducted under thousands of existing investment treaties and under any set of arbitration rules. This Policy Paper introduces the background and objectives of the Transparency Convention, provides commentary on each of its specific articles, and explains how the Transparency Convention can accomplish broad reform.

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson, Nathalie Bernasconi-Osterwalder

Columbia Center on Sustainable Investment Staff Publications

In July 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted a package of rules aiming to ensure transparency in investor-State arbitration (the “Rules on Transparency”), ratifying the work done by delegations to UNCITRAL – comprised of 55 Member States, additional observer States and observer organizations – over the course of nearly three years of negotiations.

Under previous versions of the UNCITRAL Arbitration Rules, disputes between investors and States were often not made public, even where important public policies were involved or illegal or corrupt business practices were uncovered. In contrast, the new rules, which will officially come …

Leveraging Mining Demand For Internet And Telecommunications Infrastructure For Broad Economic Development: Models, Opportunities And Challenges, Perrine Toledano, Clara Roorda

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for internet and telecommunications.

State Liability For Regulatory Change: How International Investment Rules Are Overriding Domestic Law, Lise Johnson, Oleksandr Volkov

Columbia Center on Sustainable Investment Staff Publications

With governments around the world pushing efforts to negotiate and approve mega-investment treaties, it is important to be clear on just what these investment treaties do and do not mean. One issue that is increasingly apparent is that investment treaties are not merely tools to provide protections against abusive regimes and egregious conduct, but are mechanisms through which a small and typically powerful set of private actors can change the substantive content of the law outside the normal domestic legislative and judicial frameworks.

Mobil V. Canada – Ratcheting Down The Scope Of Treaty Reservations, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

As part of States’ efforts to strike a balance in their international investment agreements (IIAs) between the obligations they assume and the rights and policy space they wish to retain, some adjoin annexes to their treaties to protect their ability to take “Non-Conforming Measures” (NCMs). States have generally: used such annexes to make exceptions to non-discrimination obligations, market access restrictions and performance requirements; have included the ability to grandfather in NCMs existing at the time an IIA enters into force; and have provided for the ability to maintain, amend, and enact new NCMs in specifically identified sectors, sub-sectors, activities, or …

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper discusses the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, which were adopted in August of 2013 and went into effect on April 1, 2014. It draws on negotiating history to elaborate on the content of and purpose of each of the Rules’ provisions, and identifies options for and barriers to applying these Rules in future arbitrations.

Investor-State Contracts, Host-State “Commitments” And The Myth Of Stability In International Law, Lise Johnson, Oleksandr Volkov

Columbia Center on Sustainable Investment Staff Publications

A new de facto rule has emerged in international investment law that emphasizes and prioritizes investment stability, imposing liability on host governments for a wide range of public interest measures deemed to interfere with “commitments” given to foreign investors by host governments. The arbitral decisions from which this new rule has emanated in treaty-based investment disputes resolve types of claims that have long been familiar to domestic jurisdictions. Yet, as this article uncovers through a comparative law analysis of factually similar cases decided under United States law over roughly the past 200 years, the approaches taken and pronouncements issued by …

The 2012 Us Model Bit And What The Changes (Or Lack Thereof) Suggest About Future Investment Treaties, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In April of this year the US State Department released a new version of its model bilateral investment treaty (BIT). This text, like the various models the US has used over roughly the past 3 decades, represents the US’s basic policy position when it starts negotiations on investment treaties with other countries, and is therefore an important benchmark for the outcome US investors might hope for as a result of ongoing and potential future talks with countries such as China, Russia, and India. Overall, this new model text follows the approach taken by the US in its investment treaties over …

Inching Towards Consensus: An Update On The Uncitral Transparency Negotiations, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

From October 1-5, 2012, a working group of the United Nations Commission on International Trade Law (UNCITRAL) met in Vienna to continue work on how to ensure transparency in treaty-based investor-state arbitration. It was the working group’s fifth week-long meeting on the topic, but will not be the last. Although some issues were settled, many very significant ones remain contentious, and will be picked up again by the working group when it meets in February 2013.

Leveraging The Mining Industry’S Energy Demand To Improve Host Countries’ Power Infrastructure, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for power infrastructure.

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 …

Leveraging Extractive Industry Infrastructure Investments For Broad Economic Development: Regulatory, Commercial And Operational Models For Railways And Ports, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for mineral railways and ports.