Law Commons^™

Guatemala's Peace Accords In A Free Trade Area Of The Americas, Gus Van Harten

Gus Van Harten

Guatemala was officially "at peace." The last of twelve peace accords had been signed. putting in place a broad mandate for reform to address many of the historical grievances of the country's marginalized and impoverished majority. Real hopes were born that a time of democracy and progressive change had finally arrived in Guatemala, after thirtysix years of terrible conflict. Alongside the internal peace process, Guatemala has taken part in negotiations toward a hemispheric free trade zone, the Free Trade Area of the Americas (FTAA), along with the thirty-three other countries that launched the project in Miami in 1994. Their declared …

Who Has Benefited Financially From Investment Treaty Arbitration? An Evaluation Of The Size And Wealth Of Claimants, Gus Van Harten

Gus Van Harten

We collected data on the size and wealth of the foreign investors that have brought claims and received compensation due to ISDS. Our main findings are that the beneficiaries of ISDS, in the aggregate, have overwhelmingly been companies with more than USD1 billion in annual revenue – especially extra-large companies with more than USD10 billion – and individuals with more than USD100 million in net wealth. ISDS has produced monetary benefits primarily for those companies or individuals at the expense of respondent states. Incidentally, we also found that extra-large companies’ success rates in ISDS, especially at the merits stage, exceeded …

Foreign Investor Protection And Climate Action: A New Price Tag For Urgent Policies, Gus Van Harten

Gus Van Harten

From a climate perspective, not all investment is equal. Desirable investment in clean energy needs encouragement and protection, while undesirable investment in fossil fuels needs clear policy signals to avoid further investment in destructive activities and stranding more assets. In this paper, evidence is presented on how foreign investor protection provisions in trade and investment agreements tilt the playing field in favor of entrenched incumbents and against urgent action on climate; on the potential for a massive expansion of investor-state litigation and risks to climate policy in proposed trade deals; and on key flaws in recent European Commission proposals to …

The (Lack Of) Women Arbitrators In Investment Treaty Arbitration, Gus Van Harten

Gus Van Harten

Investment treaty arbitration appears to be a boy’s club. Just 4% of individuals appointed as arbitrators in known cases to May 2010 were women. This casts doubt on the system’s ad hoc and partly-privatized appointments process. A roster-based model would enable a more deliberative and merit-based process of appointments and ensure public accountability and independence in the system.

Investment Provisions In Economic Partnership Agreements, Gus Van Harten

Gus Van Harten

No abstract provided.

Key Flaws In The European Commission’S Proposals For Foreign Investor Protection In Ttip, Gus Van Harten

Gus Van Harten

In November 2015, the European Commission released a proposed text on foreign investor protection in the EU-US Transatlantic Trade and Investment Partnership (TTIP). In this paper, I outline key flaws in this proposal, including language buried in the text that significantly undermines the EC's proposed provisions on the investment court system (ICS) and on the right to regulate.

Potential Implications Of Future Wto Negotiations For North American Broadcasting Policies: An Overview, Gus Van Harten

Gus Van Harten

No abstract provided.

Chapter 11 And The Francovich Doctrine: Comparing State Liability Under Nafta And Ec Law, Gus Van Harten

Gus Van Harten

No abstract provided.

A Case For An International Investment Court, Gus Van Harten

Gus Van Harten

The article elaborates on the lack of objective guarantees of independence and impartiality in the existing system of investment treaty arbitration. This founds a case for an international investment court to replace the existing system. The argument proceeds in three steps: (1) investment treaty arbitration is uniquely a form of public law adjudication, constituted at the international level; (2) as constituted it does not satisfy standards of independence and impartiality in public law adjudication; and (3) various reasons that might be offered to justify this failing are unsatisfactory in light of the importance of these standards. For this reason, states …

The Canada-China Fippa: Its Uniqueness And Non-Reciprocity, Gus Van Harten

Gus Van Harten

It is demonstrated that the signed (but not ratified) Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA) is novel and, in key respects, non-reciprocal in favour of China. For example, the FIPPA would provide a general right of market access by Chinese investors to Canada but not by Canadian investors to China, allow wider scope for investment screening by China than by Canada, remove a longstanding Canadian reservation for performance requirements that favour aboriginal peoples, and dilute Canada's established position on transparency in investor-state arbitration. These and other aspects of the FIPPA are highlighted via a comparison to other trade …

Investment Treaties And The Internal Vetting Of Regulatory Proposals: A Case Study From Canada, Gus Van Harten, Dayna Nadine Scott

Gus Van Harten

In this paper, we report findings on whether trade and investment agreements that allow for investor-state dispute settlement (ISDS) contribute to regulatory chill. The study focused on whether ISDS contributed to changes in internal vetting of government decisions related to environmental protection in the province of Ontario, Canada. Our main source of information was confidential interviews with insiders, mostly current or former officials in ministries with an environmental or trade mandate. We aimed to advance understanding of litigation risk and government decision-making with a focus on ISDS.

A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten

Gus Van Harten

The European Commission's most recent proposal for ISDS reflects a move away from essentially fake reforms to something potentially more meaningful. However, it is insufficient to satisfy the criteria of independence, fairness, openness, subsidiarity, and balance and does not appear reliable until backed by clear language and a negotiating red line for the proposed Canada-Europe CETA and any other agreement providing for ISDS.

Arbitrator Behaviour In Asymmetrical Adjudication: An Empirical Study Of Investment Treaty Arbitration, Gus Van Harten

Gus Van Harten

The study examines arbitrator behaviour in the unique context of investment treaty arbitration. It employs the method of content analysis to test hypotheses of systemic bias in the resolution of jurisdictional issues in investment treaty law. Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour: (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the …

The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten

Gus Van Harten

The purpose of this paper is to evaluate the European Commission’s approach to investor-state dispute settlement (ISDS) in the proposed CETA with Canada and FTA with Singapore. The text on ISDS in both agreements is evaluated according to general criteria of independence, fairness, openness, and balance. The main conclusion reached is that there is no significant difference between the CETA and FTA when it comes to ISDS. With the qualified exception of the criterion of openness, both agreements fall well short of satisfying the criteria. As such, neither agreement offers a significant improvement on the U.S. model of ISDS and, …

Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten

Gus Van Harten

These notes provide a general reaction to a proposal by the German economy and energy ministry for ISDS in a treaty between Europe and the U.S. Overall, the proposal takes only a minority of the steps needed to make ISDS independent, fair, open, subsidiary, and balanced. I suggest that the appropriate approach remains to reject ISDS in new treaties (especially among Western developed countries). The proposal would be a good starting point for replacing ISDS in existing treaties with developing or transition countries – but that is clearly not its purpose.

The Emerging System Of International Investment Arbitration, Gus Van Harten

Gus Van Harten