Publications and events

Publications

Newly published UNCTAD Series on Issues in International Investment Agreements II

“Scope and Definition”, UNCTAD, March 2011
A new UNCTAD study titled “Scope and Definition” reviews how the concepts of «investment» and «investor» have been defined in international investment agreements (IIAs), and how different definitions have affected countries hosting foreign direct investment (FDI). The study notes that there is a trend in recent IIAs of narrowing the definition scope for the two terms, possibly in reaction to interpretations by arbitration tribunals in the past. The paper concludes with a section on policy options for IIA negotiators. It argues that adding a development policy dimension to the technical definition of investment would help bring developmental concerns to the centre of the agreements’ objectives, and to the fore of tribunals’ considerations (i.e. even before going into the substantive assessment of contested host country measures). Adoption of such practice would be an important step towards making IIAs contribute to economic sustainability, according to UNCTAD. The study is available at: http://www.unctad.org/Templates/Page.asp?intItemID=5885&lang=1

“Most-favoured Nation Treatment”, UNCTAD, January 2011
This UNCTAD paper takes stock of the evolution of most-favoured-nation (MFN) treatment clauses in IIAs and explains the MFN treatment and some of the key issues that arise in its negotiation, particularly the scope and application of MFN treatment to the liberalization and protection of foreign investors in recent treaty practice. Subsequently, the paper analyses whether and under what conditions the application of the MFN treatment clauses contained in IIAs can be used by arbitral tribunals to modify the substantive protection and conditions of the rights granted to investors under IIAs to enter and operate in a host State. The paper also provides policy options as regards the traditional application of MFN treatment and identifies reactions by States to the unexpected broad use of MFN treatment, and provides several drafting options, such as specifying or narrowing down the scope of application of MFN treatment to certain types of activities, clarifying the nature of «treatment» under the IIA, clarifying the comparison that an arbitral tribunal needs to undertake as well as a qualification of the comparison «in like circumstances» or excluding its use in investor-State cases. The study is available at: http://www.unctad.org/Templates/webflyer.asp?docid=14358&intItemID=5821&lang=1  

“Land deals in Africa: What is in the contracts?”,  Lorenzo Cotula, IIED, February 2011
This paper by Lorenzo Cotula of the International Institute for Environment and Development (IIED) analyses twelve land deals from different parts of Africa and their wider legal frameworks. It discusses the contractual issues for which public scrutiny is most needed, and aims to promote informed public debate about them. Key issues identified in the paper relate to the contracting process, to economic fairness between investor and host country, to the distribution of risks, costs and benefits within the host country, to the degree of integration of social and environmental concerns, and to the extent to which the balance between economic, social and environmental considerations can evolve over often long contract durations. The study states that instead of rushing into land contracts, governments should promote transparent, vigorous public debate about the future of agriculture in their country. Producer organisations must be central to that debate, and scrutiny from civil society can help make the renewed interest in agriculture work for broad-based sustainable development. This research aims to provide an empirical basis for these processes and contribute going that direction. The report is available at: http://pubs.iied.org/12568IIED.html?a=Cotula

Foreign Direct Investment in Times of Crisis”, Lauge Skovgaard Poulsen, Gary Clyde Hufbauer, Peterson Institute for International Economics, Working Paper Series WP11-3, January 2011 
This paper compares the current foreign direct investment (FDI) recession with FDI responses to past economic crises. It states that although developed country outflows have taken an equally big hit as major developed countries have after past crises, outflows seem to be bouncing back more slowly this time. By contrast with the overall decline in recent years, inflows to emerging markets often remained stable during their past economic crises. Both patterns indicate that the global scale of the current crisis has led to a greater FDI response than after individual country crises in the past. Compared with global economic downturns since the 1970s, the current FDI recession has also been greater in magnitude. The exception is the FDI plunge in the early 2000s, despite the much smaller economic crisis at the time. The study recommends that policymakers not just further liberalize FDI regimes–as they find was the typical pattern during earlier crises–but rather use the downturn to rethink their FDI policies with an enhanced focus on «sustainable FDI» promotion.  The study is available at: http://ideas.repec.org/p/iie/wpaper/wp11-3.html

Events
 

 

2011

April

 8-9
The Interaction of international investment law with other Fields of Public International Law, Leiden, The Netherlands, http://law.leiden.edu/research/news/conference-iil.html

May

5
Embedding Human Rights into Investment Treaties, Council Chamber, King’s College London, London, United Kingdom,
contact [email protected]

3-5
Mining and Minerals: What Role for a Sustainable Future, CEPMLP, University of Dundee, http://www.buyat.dundee.ac.uk/browse/extra_info.asp?compid=2&prodid=89&modid=2

20
International Arbitration in the 21st Century: Trends, Developments, Challenges,
Los Angeles, United States, http://www.lacba.org/showpage.cfm?pageid=12469

June

14-15
6th Annual Conference on International Arbitration and Mediation, New York, United States, http://law2.fordham.edu/ihtml/cal-2uwcp-calendar_viewitem.ihtml?idc=11690

October

26-27
Sixth Columbia International Investment Conference: «The Resource Boom and FDI in Africa,
Faculty House, Columbia University, New York