Law Commons^™

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 …

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.

The Convergence Of International Trade And Investment Arbitration, Roger P. Alford

Journal Articles

The World Trade Organization (“WTO”) and bilateral investment treaties (“BITs”) are among the most significant legal developments in the history of international economic law. Never before in the history of international relations has trade and investment been supported by such powerful legal guarantees and adjudicative processes. In less than two decades the WTO and BITs have permanently altered the legal landscape with reciprocal and mutually advantageous arrangements designed to reduce barriers to trade and investment and eliminate discriminatory treatment in international economic relations. In most respects the worlds of trade and investment are on parallel tracks headed in the same …

Development And Outcomes Of Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status …

Investment Protection In Extraordinary Times: The Interpretation And Application Of Non-Precluded Measures Provisions In Bilateral Investment Treaties, William W. Burke-White, Andreas Von Staden

All Faculty Scholarship

When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses effectively transfer the risk of and costs associated with state action in exceptional circumstances from the host-states of international investments to the investors. In two recent cases brought against Argentina in response to the Argentine financial crisis, ICSID tribunals have …

Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about …

Integrating Investment Treaty Conflict And Dispute Systems Design, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the debate on the renewal of the Trade Promotion Authority Act, the proper terms of investment treaties - including dispute resolution provisions - have become an issue of public scrutiny. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties; and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and non-parties have expressed divergent views as to the efficacy, efficiency and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution …

Empiricism And International Law: Insights For Investment Treaty Dispute Resolution, Susan Franck

Articles in Law Reviews & Other Academic Journals

While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve …

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

Articles in Law Reviews & Other Academic Journals

In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and …