Law Commons^™

An International Law Framework For Climate-Aligned Investment Governance, Martin Dietrich Brauch, Elena Klonsky, Fanny Marie Everard, Qiaozi Guanglin, Tyler Alviano, Justin Cuddihey, Mary Wang

Columbia Center on Sustainable Investment

The January 2024 CCSI Working Paper, An International Law Framework for Climate-Aligned Investment Governance, outlines a framework — and invites and hopes to inspire further thinking, research, and discussion — on how to bridge gaps and build cohesion among various areas of international law relevant to investment in climate mitigation and adaptation. The working paper identifies areas of international law that are or could be relevant to investment governance, highlights points of inconsistency, and proposes a framework to reform and integrate international law with the objective of promoting and facilitating climate investment flows and achieving climate-aligned regulation of investment.

A Canadian Perspective On Fifty Years Of International Economic Law, J. Anthony Van Duzer

Dalhousie Law Journal

In 1970, “international economic law” (IEL) was not a distinct academic subject. Fifty years later, IEL has become an important and well-recognized field of legal enquiry, though its boundaries remain unclear. Globalization of trade and investment activity and the concomitant proliferation of trade and investment treaties over the last 50 years have been key drivers of academic interest in IEL and its transformation. The impacts of trade and investment on the protection of the environment and health, Indigenous, labour, and human rights, development, and other policy priorities have become significant subjects of academic discourse and are increasingly addressed in trade …

Percepatan Pelayanan Perizinan Berusaha Dalam Rangka Potensi Peningkatan Investasi Sektor Sumber Daya Alam: Pertanian, Farid Anfasa

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This research discusses about licensing is a policy instrument of the government to control negative externalities that may be caused by social or economic activities. License is also an instrument for legal protection for the ownership or operation of activities. The Acceleration of Business Licensing Services in Indonesia is still far from ideal as expected by business people. Seeing this fact, there is a need to change the service paradigm, especially investment licensing services, so that investment licensing procedures can be created that can be categorized as cheap, fast and clear in accordance with predetermined public service standards. Therefore the …

Mengkaji Kepastian Hukum Dan Perlindungan Hukum Terhadap Investasi Di Indonesia Melalui Lembaga Perizinan Online Single Submission (Oss), Eldbert Christanto Anaya Marbun

"Dharmasisya” Jurnal Program Magister Hukum FHUI

To drive the national economy, investment is one of the main driving factors that the Government of Indonesia continues to maintain and grow. Various efforts have been made by the Government so that investment can flow rapidly into Indonesia, both PMA and PMDN. One of these efforts is to build a new electronic-based licensing system. Based on Government Regulation Number 24 of 2018 concerning Electronically Integrated Business Licensing Services or often referred to as OSS, licensing services are made easier. Through the OSS system, licensing for undertaking and investing is simplified. The bureaucracy and lengthy licensing requirements that have been …

Studi Kasus Tindak Pidana Pasar Modal Pada Pt Reliance Securities, Tbk Dan Pt Magnus Capital, Vicky Prayitno

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Capital market is one of the national development tools that nowdays has growed rapidly and its existence has become one of the financing alternatives in national development. The runs of the capital market can not be seperated from its possiblities of criminal act that harm the investor and society. Capital market crime’s character is well-organised and involving certain parties like other white collar crimes, therefore the resolution and responsibility is also terribly complex since the case involves those related parties in that crime. One of the enticing violations in the capital market was a fraud case committed by Larasati (one …

Implication Of Regional Tax Regulation For The Investment Climate And Its Relation With Omnibus Bill On Taxation, Debora Kristina Doloksaribu

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The granting of autonomy to the regions is intended to provide democratic space and public participation. Legal certainty in the administration of regional government specifically related to taxes is very crucial, specifically for economic development, as it affects the investment climate. Any discrepancy between regional and central policies is seen as an obstacle in optimizing investment performance in the regions. The Government has proposed a Bill on General Provisions and Tax Facilities for Strengthening the Economy or also known as the Omnibus Bill on Taxation which regulates, among other things, regional tax and regional levy. One of principal arrangements in …

Pemanfaatan Dan Perlindungan Hukum Terhadap Sumber Daya Air Dalam Perspektif Investasi Dan Kesejahteraan, Arindita Pratiwi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

As a natural resource that can be renewed and is an unlimited energy, water has an important role in meeting the daily needs of humans and other living things, without water there would be no life. The presence of the state in managing water resources for the greatest welfare of the people is a manifestation of the state's control over water resources as mandated by Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia and is the state's obligation to fulfill the people's rights to water. In fulfilling the need for clean water for all its …

Law School News: Sanctions On Russia: Imperfect But Necessary 03-02-2022, Gregory W. Bowman

Life of the Law School (1993- )

No abstract provided.

The Dispute Settlement System Of Investment In The Asean Comprehensive Investment Agreement (Acia) Framework And The Implications For Indonesia, Delfiyanti Delfiyanti

Indonesian Journal of International Law

In order to implement the ASEAN single market on free flow of investment in the region, the delegations of ASEAN member states signed the ASEAN Comprehensive Investment Agreement (ACIA) on February 26th, 2009 in Cha-am, Thailand. Based on Article 1 (a) and Article 2 of the ACIA Agreement on the objectives of ACIA formation; the legal arrangements for foreign direct investment in this Agreement adhere to an investment regime—“a Free and Open Investment Regime” to achieve the ultimate purpose of economic integration in the ASEAN Economic Community. By implication of the Agreement, Indonesia should attempt to complement the investment legal …

Implikasi Mengenai Pencabutan Peraturan Menteri Dalam Negeri Nomor 27 Tahun 2009 Tentang Pedoman Penetapan Izin Gangguan Di Daerah Sebagaimana Telah Diubah Dengan Peraturan Menteri Dalam Negeri Nomor 22 Tahun 2016 Terhadap Peraturan Daerah Provinsi Dki Jakarta Nomor 15 Tahun 2011 Tentang Perizinan Tempat Usaha Berdasarkan Undang-Undang Gangguan

"Dharmasisya” Jurnal Program Magister Hukum FHUI

On March 29 2017, the Government issued a regulation of the Minister of Home Affairs of Republic of Indonesia Number 19 of 2017 concerning the revocation of regulation of the Minister of Home Affairs Number 27 of 2009 about the Guidelines for Determination of Disturbance Permit in Regions that were approved as amended by Minister of Home Affairs Regulation Number 27 of 2009 about Guidelines Establishment of Disturbance Permit in the Regions. The Government assesses that regulation of the Minister of Home Affairs Number 27 of 2009 on the guidelines for the Establishment of Disturbance Permit in the Region is …

Crisis, Continuity, And Change In International Investment Law And Arbitration, Valentina Vadi

Michigan Journal of International Law

The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between …

Against Balancing: Revisiting The Use/Regulation Distinction To Reform Liability And Compensation Under Investment Treaties, Jonathan Bonnitcha, Emma Aisbett

Michigan Journal of International Law

Investment treaties generate mutual benefits for host states and foreign investors to the extent that they discipline opportunistic conduct by host states. Investment treaties do not necessarily generate mutual benefits insofar as they constrain states’ ability to respond to new information or to change their policy priorities. In a companion paper, we use the tools of law and economics to formalize and clarify the relationship between problems of opportunism on the one hand, and new information and shifts in policy priorities on the other. On this basis, we develop a proposal to reform the legal principles that govern liability and …

Kepastian Hukum Pengelolaan Sektor Hulu Migas Dengan Kontrak Bagi Hasil Split Yang Bersifat Lintas Sektor Dan Implementasinya Terhadap Pertumbuhan Investasi Disektor Hulu Migas, Bunga Nostalgi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

In early 2017, Indonesia establish anew form of Production Sharing Contract (PSC). fromPSC cost recovery to PSC gros split. PSC gross split is expected to be a solution to thedecline upstream oil and gas investment level, and to increase state revenues. ThroughESDM Regulation No. 8/2017 PSC gross split was applied. The basic term by PSC grosssplit are there’s no cost recovery, base split, component variable and component progresifas a compliance of profit sharing adjustments, self procurement by the contractor withoutSKK Migas approval, and Plan Of Development (POD) approval less than one month.This study aims to determine the legal certainty in …

Incorporating Free, Prior And Informed Consent (Fpic) Into Investment Approval Processes, Kelly Dudine, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Investment approval processes are the gateway through which governments set the agenda for their country’s investment environment. Yet too often these processes fail to incorporate meaningful requirements regarding participation in decision-making by Indigenous and other affected communities, increasing the risk of under-performing and conflict-ridden investments.

Enabling meaningful participation by rights holders and obtaining and maintaining their Free, Prior and Informed Consent (FPIC) throughout different investment approval processes can help governments to fulfill their legal obligations, mitigate financial and political risk, and, ultimately, attract more sustainable land-based investments.

Featuring concrete guidance and drawing on case studies from Kenya, Liberia, Mexico, Peru, …

Submission To Bonsucro Re Production Standard V5 (2019-21), Nami Patel, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2020, CCSI made a formal submission to Bonsucro, an international multi-stakeholder initiative and certification scheme concerned with promoting sustainable sugar cane production. The submission formed part of consultations for Bonsucro’s draft Production Standard version 5. CCSI’s submission focused on challenges associated with implementing, and auditing for compliance with, three aspects of Bonsucro’s draft standard, namely:

• Obtaining the free, prior and informed consent (FPIC) of Indigenous and traditional communities when establishing or expanding sugar production operations
• Implementing transparent and participatory processes to assess, monitor, and evaluate the environmental and social impacts of new and existing projects; and
• Establishing accessible …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how consultation …

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 …

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 …

Investments And Security: Balancing International Commerce And National Security With Expanded Authority For The Committee On Foreign Investment In The United States, Christopher Jusuf

Catholic University Journal of Law and Technology

What happens when the interests of international trade conflict with those of national security? This article analyzes this question within the context of the Committee on Foreign Investment in the United States (CFIUS), an obscure but increasingly powerful executive panel that exercises the president's broad authority to unilaterally interfere with and stop international mergers and acquisitions. With the passage of the Foreign Investment Risk Review Modernization Act (FIRRMA), CFIUS is more powerful now than it has ever been, and should be a key consideration for any company seeking to do business with foreign investors. This is especially true as America …

Doing Development Differently: Reorienting Sino-African Trade And Investment Relations After The Pandemic, Olabisi D. Akinkugbe, Clair Gammage

Articles, Book Chapters, & Popular Press

This article explores the evolutive nature of Sino-African relations and questions how Chinese interventions may influence Africa’s development stories in a post-Covid world. We examine whether the crisis could serve as a catalyst for reorienting the strategic partnership between China and Africa away from debt diplomacy towards genuine partnership or a breaking apart of the long-standing relationship. This article presents three narratives to illustrate how the future direction of Sino-African relations may change and how this might enable Africa to ‘do development differently’.

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes

Northwestern Journal of International Law & Business

Investor-state contracts are regularly used in low- and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how …

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 …

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 …

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 …

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 …