IISD Best Practices Series: Performance Requirements in Investment Treaties
By Suzy H. Nikièma, published by the International Institute for Sustainable Development, December 2014
The paper surveys the types of performance requirements (PRs) in use around the world, and briefly describes the WTO’s Agreement on Trade-Related Investment Measures (TRIMs). The study focuses on the meaning and scope of PR-related clauses in bilateral investment treaties (BITs) and the interpretation of such clauses by investment tribunals. If well formulated and applied, PRs can be effective tools to maximize the economic, environmental and social benefits of foreign investments. Therefore, it is important for states, particularly developing countries, to retain the possibility of using them when circumstances warrant it. In this context, the growing trend of prohibiting most PRs in some investment treaties, combined with the investor–state dispute settlement mechanism, seriously impairs the ability of developing states to use these development policy tools. Notably, these restrictions and prohibitions on PRs often go beyond WTO TRIMs prohibitions—and, when available, exceptions in BITs are not always effective before tribunals. Finally, the paper provides some options to help states preserve their policy space in BITs for imposing, if needed, PRs on foreign direct investment in their territory. Available here: http://www.iisd.org/publications/best-practices-series-performance-requirements-investment-treaties
Do Investment Treaties Unduly Constrain Regulatory Space?
By Lorenzo Cotula, Published by the International Institute for Environment and Development, December 2014
International investment law (IIL) is at a crossroads. A large number of investment treaties and investor-state arbitrations, and rapidly expanding scholarly writing, have made IIL one of the most dynamic branches of international law. However, the proliferation of treaties and arbitrations has also made IIL a contested field, with campaigners and some experts questioning substantive standards and dispute settlement mechanisms, and commentators warning of a ‘legitimacy crisis.’ Controversy about the interface between investment promotion and regulatory space has been central to these developments.
This article argues that investment treaties, even of the ‘recalibrated’ type, can have far-reaching implications for regulatory space, requiring careful thinking through. This is particularly the case in low and middle-income countries, where room for tightening regulatory frameworks may be greater, constraints on public finances harder, and capacity gaps more challenging. Ultimately, choices on the boundaries between investment promotion and regulatory space are eminently political, and a key challenge ahead is increasing democratic participation in the making of these political choices. Available here: http://pubs.iied.org/X00128.html
Investment Protection in TTIP: Three Feasible Proposals
By Jan Kleinheisterkamp and Lauge Poulsen, published by the Global Economic Governance Programme, Oxford University, December 2014
Investor–state dispute settlement (ISDS) through international arbitration has become a major stumbling block in negotiations of the Transatlantic Trade and Investment Partnership (TTIP). In agreements with Canada (CETA) and Singapore, the European Commission has included several modifications to the ‘traditional’ investment provisions found in the bilateral investment treaties of European capital exporting countries, so as to address some of the shortcomings of the traditional ISDS system. Yet, a large number of stakeholders remain unconvinced that the changes sufficiently safeguard policy space in Europe. Broader political support for TTIP may be difficult unless these concerns are addressed. To contribute to this debate, this brief proposes three pragmatic solutions for the investment protection chapter in TTIP, which could be politically acceptable in Europe while still offering meaningful investment protections. The European Commission and the Member States should:
- Insert and make applicable the fundamental principle framing the mandates on both sides of the Atlantic that TTIP will not include greater substantive investor rights than those enshrined in domestic laws;
- Consider limiting dispute settlement to state-to-state consultations and arbitration, as this is standard in investment treaties among countries with developed legal systems;
- If ISDS is included: condition it to a local litigation requirement; allow the parties to filter out disputes from arbitration; allow the parties to make binding interpretations; and implement an efficient appeal mechanism.
2nd ICC International Mediation Round Table, International Chamber of Commerce, Paris, France, http://www.iccwbo.org/training-and-events/competitions-and-awards/mediation-week/
Expert Meeting on the Transformation of the International Investment Agreement Regime: The Path Ahead, UNCTAD, Geneva, Switzerland, http://unctad.org/en/pages/MeetingDetails.aspx?meetingid=643
Reshaping the Investor-State Dispute Settlement System: Journeys for the 21st Century, Woodrow Wilson International Center for Scholars, Washington, DC, United States, http://www.wilsoncenter.org/event/reshaping-the-investor-state-dispute-settlement-system-journeys-for-the-21st-century
Columbia Arbitration Day 2015 – Back to Basics: Enduring Challenges in International Arbitration Law, Columbia Law School, New York, United States, http://web.law.columbia.edu/columbia-arbitration-day
Executive Training Program on Sustainable Investments in Agriculture, Columbia University, New York, United States, http://ccsi.columbia.edu/2012/03/16/agtraining/
Joint UNCITRAL-LAC Conference on Dispute Settlement, UNCITRAL and the Ljubljana Arbitration Centre, Ljubljana, Slovenia, http://www.sloarbitration.eu/en/Joint-UNCITRAL-LAC-Conference/The-Conference
School of International Arbitration 30th Anniversary Conference: ‘The Evolution and Future of International Arbitration: The Next 30 Years,’ Queen Mary University of London, London, UK, http://www.arbitration.qmul.ac.uk/events/2014/126692.html