UNCTAD Global Investment Trends Monitor No. 23
By United Nations Conference on Trade and Development (UNCTAD), Published by UNCTAD, May 2016
Investment flows to offshore financial hubs, including offshore financial centres and special purpose entities (SPEs), were increasingly volatile in 2015. The research shows that these flows, which are excluded from UNCTAD’s foreign direct investment (FDI) statistics, declined but remain sizeable. The magnitude of quarterly flows through SPEs, in terms of absolute value, rose sharply compared with 2014, reaching the levels last registered in 2012–2013. Meanwhile, investment flows to offshore financial centers continued to retreat from their recent high of $132 billion in 2013, but remained roughly in line with the flows of previous years. The persistence of financial flows routed through offshore financial mechanisms highlights the pressing need to create greater coherence among tax and investment policies at the global level. In the World Investment Report 2015, UNCTAD proposed a set of guidelines for coherent international tax and investment policies that could help realize the synergies between investment policy and initiatives to counter tax avoidance. Available at http://unctad.org/en/PublicationsLibrary/webdiaeia2016d2_en.pdf.
Switzerland’s Investment Treaties: Time for a change
By Nathalie Bernasconi-Osterwalder, Published by IISD, April 2016
Switzerland currently has signed 118 bilateral investment treaties (BITs) with countries around the world, primarily developing countries or countries in transition. Worried about the effects on democratic policy-making—particularly states’ ability to protect the public interest—many governments are reviewing and revising their approach to these treaties. Despite some concerns raised by the Swiss parliament in the past years, Switzerland has so far introduced only timid changes in its recent investment treaties, and its approach to negotiations has remained in large part unchanged in the last decades. This is probably due to the fact that Switzerland has largely been untouched by disputes under these treaties. However, there is reason to expect more cases against Switzerland in the future, as capital flows from traditional investment treaty partners into Switzerland increase. This paper explains the concerns attached to traditional investment treaties—the type of treaties that Switzerland has so many of—and the various ways that countries have adapted their approach as a result. It argues that now is the time for Switzerland to begin updating its approach to investment treaties. Available at http://www.iisd.org/topic/investment.
Investment Court System Put To The Test: New EU proposal will perpetuate investors’ attacks on health and environment
By Natacha Cingotti, Pia Eberhardt, Nelly Grotefendt, Cecilia Olivet and Scott Sinclair, Published by Canadian Centre for Policy Alternatives, Friends of the Earth Europe, Corporate Europe Observatory, German NGO Forum on Environment and Development and the Transnational Institute, April 2016
The European Commission claims that its new investment proposal—the Investment Court System (ICS)—will protect governments’ abilities to regulate on crucial matters such as public health and environmental protection. However, a close review of five of the most controversial arbitration cases in recent years (Philip Morris v. Uruguay, TransCanada v. United States, Lone Pine v. Canada, Vattenfall v. Germany, and Bilcon v. Canada) shows they could still be launched under the current proposal. Each of these cases can still prosper under ICS, because the new system still grants investors ample and ill-defined rights. When put to the test, the ICS, proposed to replace the flawed investor–state dispute settlement (ISDS) mechanism, fails to protect the right to regulate. Available at https://www.tni.org/icstest.
IIA Issues Note: Taking stock of IIA reform
By United Nations Conference on Trade and Development (UNCTAD), Published by UNCTAD, March 2016
The issues note documents that efforts to reform the international investment agreements (IIAs) regime to bring it in line with the sustainable development imperative are being undertaken at all levels of governance. At the national level, since the launch of UNCTAD’s Investment Policy Framework, at least 110 countries have reviewed their national or international investment policies. Many of those reviews resulted in the development of a new IIA model that is in line with new generation investment policymaking. At the bilateral level, there is a clear shift in drafting practice. Recently signed IIAs contain a number of policy options conducive to sustainable development. At the regional level, megaregionals or regional IIA models include reform-oriented policy options. Some inputs into megaregional negotiations break new ground with respect to IIA and investment dispute settlement reform. At the multilateral level, a number of forums touch upon issues related to IIA reform (such as transparency in ISDS, business and human rights, or financing for development). UNCTAD’s World Investment Forum and its Investment Commission provide a global platform for engaging policymakers and the investment and development community. Available at http://unctad.org/en/PublicationsLibrary/webdiaepcb2016d1_en.pdf.
Alternative Visions of the International Law on Foreign Investment: Essays in honour of Muthucumaraswamy Sornarajah
By C. L. Lim (editor), Published by Cambridge University Press, March 2016
This book discusses the forces that are reshaping the international investment law. It explains the liberal origins of contemporary investment treaties before addressing a current backlash against these treaties and the device of investment arbitration. The book describes a long-standing legal-intellectual resistance to a neo-liberal global economic agenda, and how tribunals have interpreted various treaty standards instead. Key scholars who have advocated alternative visions of international investment law introduce the changes now taking place in the design of a range of familiar treaty clauses. Finally, it explores the life, career and writings of Muthucumaraswamy Sornarajah, a scholar whose work has been dedicated to the realization of many of these changes, and his views about the hold global capital has over legal practice. Available at http://www.cambridge.org/ro/academic/subjects/law/international-trade-law/alternative-visions-international-law-foreign-investment-essays-honour-muthucumaraswamy-sornarajah.
Rethinking Bilateral Investment Treaties: Critical issues and policy choices
By Kavaljit Singh and Burghard Ilge (editors), Published by Both ENDS, Madhyam and SOMO, March 2016
This free-to-download e-book takes stock of current developments and explores alternative approaches to reform investment treaties. The book covers a wide range of topics—from current trends in investor–state arbitration to the wider ramifications of investment treaties on sovereign debt restructuring, the extractive industry, intellectual property rights and human rights. It provides an up-to-date account of the model BIT reviews undertaken by South Africa, India and Indonesia. Some of the authors have suggested a broad gamut of useful policy solutions. The book presents a debate that is very relevant to the ongoing initiatives to reform the BITs regime. It raises some critical policy issues that are missing in the current debates. The book attempts to launch a dialogue among government officials, legal experts drawn from academia, international organizations and civil society groups to address the systemic shortcomings of the current BIT regime. Available at http://www.madhyam.org.in/wp-content/uploads/2016/03/Rethinking-BIT-Book-PDF-15-March-2016.pdf.
The WTO and International Investment Law: Converging systems
By Jürgen Kurtz, Published by Cambridge University Press, February 2016
International law has historically regulated foreign trade and foreign investment differently. Powerful economic, legal and sociological factors are now pushing the two systems together. In this book, Jürgen Kurtz systematically explores the often complex and little-understood dynamics of this convergence phenomenon. Kurtz addresses the growing connections between international trade and investment law, proposing a theoretically grounded and doctrinally tractable framework to understand the deepening relationship between them. The book also offers reform ideas and possibilities, suggesting a set of theoretical insights and doctrinal models. Available at http://www.cambridge.org/academic/subjects/law/international-trade-law/wto-and-international-investment-law-converging-systems.
The Trans-Pacific Partnership, Part I: A deal too far
By Howard Mann, Published by IISD, February 2016
With the release of the Trans-Pacific Partnership Agreement (TPP), a debate has been growing over the so-called “trade” agreement among twelve Pacific Rim countries. Should governments ratify the deal? Will it expand trade in a significant way? Who will be the winners and losers? But defining winners and losers only in trade terms misses the much broader impacts of the TPP. In effect, it ignores the fact that the TPP’s non-trade provisions, such as in the areas of investment and intellectual proper rights, threaten to exacerbate inequality. The author argues that Canada should reject the agreement and use it as a jumping-off point to lead a new global dialogue on the right directions for trade agreements. The commentary also focuses on how trade agreements should and can be instruments to support, rather than impede, achieving the globally adopted Sustainable Development Goals. Available at https://www.iisd.org/library/tpp-part-i-a-deal-too-far.
Sustainability Impacts of Chinese Outward Direct Investment: A review of the literature
By Yuan Wang, Simon Zadek, Kelly Yu, Mark Halle, Samuel Ortiz Velasquez, Lin Zhang, Hanjie Wang, Published by IISD, February 2016
Outward direct investment (ODI) by the People’s Republic of China has grown very rapidly since 2004, and in 2014, China’s ODI flows attained USD 123.1 billion. Numerous academic studies, policy papers and media reports discuss the operations and impacts of Chinese companies overseas. This literature review develops a comprehensive understanding of the sustainable impact of Chinese ODI. It aims at providing a balanced view of the current state of knowledge of the sustainable development impact of Chinese ODI, an overview of the diverse perspectives and concerns relevant to Chinese policy-makers and companies “going out,” insights into the Chinese policy and business strategy measures that would improve outcomes and address concerns, and direction on further avenues for research and possible future collaboration. Available at https://www.iisd.org/library/sustainability-impacts-chinese-outward-direct-investment-review-literature.
Shifting Paradigms in International Investment Law: More balanced, less isolated, increasingly diversified
By Steffen Hindelang and Markus Krajewski (editors), Published by Oxford University Press, January 2016
Whereas the prevailing mindset in international investment law always been the protection of the economic interests of individual investors, new developments have brought about a paradigm shift. There is now more than ever before an interest in a more inclusive, transparent, and public regime. The book addresses these changes against the background of the framework of the UN Conference on Trade and Development (UNCTAD) to reform investment treaties. It analyses how the investment treaty regime has changed and how it ought to be changing to reconcile private property interests and the state’s duty to regulate in the public interest. In doing so, the volume tracks attempts in international investment law to recalibrate itself towards a more balanced, less isolated, and increasingly diversified regime. Individual chapters address the contents of investment agreements, the system of dispute settlement, the interrelation of investment agreements with other areas of public international law, constitutional questions, and new regional perspectives from Europe, South Africa, the Pacific Rim Region, and Latin America. Available at https://global.oup.com/academic/product/shifting-paradigms-in-international-investment-law-9780198738428.
ENERGY AND ARBITRATION, Association of International Arbitration (AIA), Vienna International Arbitration Centre (VIAC) and Austrian Arbitration Association (ARBAUT), TBD, http://www.arbitration-adr.org/activities/?p=conference&a=upcoming#85
26TH ITF PUBLIC CONFERENCE: THE ROLE OF PROPORTIONALITY IN INTERNATIONAL INVESTMENT LAW, British Institute of International and Comparative Law, Goodenough College, London, United Kingdom, http://www.biicl.org/event/1169
2ND BIENNIAL SYMPOSIUM OF THE GLOBAL ECONOMIC LAW NETWORK, “The Age of Mega-Regionals: TPP and Regulatory Autonomy in International Economic Law”, University of Melbourne Law School, Melbourne, Australia, http://law.unimelb.edu.au/centres/geln/futureevents/current-and-past-research-activities/the-age-of-mega-regionals
IISD INTERACTIVE EXPERT MEETING “INVESTMENT-RELATED DISPUTE SETTLEMENT: A COMPREHENSIVE MULTILATERAL APPROACH,” IISD, Montreux, Switzerland, https://www.iisd.org
RESPONSIBLE INVESTMENT FORUM 2016, Principles for Responsible Investment (PRI) & Private Equity International (PEI), Marriott Grosvenor Square, London, United Kingdom, http://www.unpri.org/events/pei-pri-responsible-investment-forum-2016
ARBITRATION AND EUROPEAN LAW, AIA, Vrije Universiteit Brussel, Brussels, Belgium, http://www.arbitration-adr.org/activities/?p=conference&a=upcoming#85
May 31–June 1
OECD FORUM, Organisation for Economic Co-operation and Development (OECD), OECD Conference Centre, Paris, France, https://www.oecd.org/forum
SYMPOSIUM “INTERNATIONAL INVESTMENT LAW AS A FIELD FOR SCHOLARLY RESEARCH,” Uppsala, Sweden, http://www.jur.uu.se/Portals/2/nyheter/Symposium 3 June.pdf
2016 GLOBAL FORUM ON RESPONSIBLE BUSINESS CONDUCT, OECD Conference Centre, Paris, France, http://mneguidelines.oecd.org/globalforumonresponsiblebusinessconduct
THIRD PARTY FUNDING, AIA, Vrije Universiteit Brussel, Brussels, Belgium, http://www.arbitration-adr.org/activities/?p=conference&a=upcoming#85
6TH ANNUAL CONFERENCE ON WORLD TRADE ORGANIZATION (WTO) LAW, British Institute of International and Comparative Law (BIICL), Institute of International Economic Law (IIEL) at the Georgetown University Law Center, Society of International Economic Law (SIEL), Graduate Institute Geneva and WTO Headquarters, http://www.biicl.org/event/1161
CORRUPTION IN INTERNATIONAL ARBITRATION, Center on International Commercial Arbitration, Washington College of Law, American University, Washington, United States, https://www.wcl.american.edu/arbitration
EXPERT MEETING ON NON-DISCRIMINATION IN THE PRE-ESTABLISHMENT PHASE, Energy Charter Secretariat, Brussels, Belgium, http://www.energycharter.org/media/news/article/new-date-expert-meeting-on-non-discrimination-in-the-pre-establishment-phase
2016 SESSION OF THE ARBITRATION ACADEMY, International Academy for Arbitration Law, Paris, France, http://www.arbitrationacademy.org/?page_id=5764
14TH MINISTERIAL CONFERENCE OF THE UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT (UNCTAD 14), UNCTAD, Kenyatta International Convention Centre, Nairobi, Kenya, http://unctad14.org
WORLD INVESTMENT FORUM 2016: INVESTING IN SUSTAINABLE DEVELOPMENT, UNCTAD, Kenyatta International Convention Centre, Nairobi, Kenya, http://unctad-worldinvestmentforum.org
EXECUTIVE TRAINING ON INVESTMENT ARBITRATION FOR GOVERNMENT OFFICIALS, Columbia Center on Sustainable Investment, Columbia University, New York, United States, http://ccsi.columbia.edu/2016/08/01/executive-training-on-investment-arbitration-for-government-officials
TENTH ANNUAL FORUM OF DEVELOPING COUNTRY INVESTMENT NEGOTIATORS, IISD, South Centre, Commonwealth Secretariat, & Government of Sri Lanka, Colombo, Sri Lanka, http://www.iisd.org/project/annual-forum-developing-country-investment-negotiators