The oil and gas industry faces increasingly strict environmental standards in developed countries. However, the majority of the world’s proven oil reserves are in developing countries and economies in transition, which often lack sophisticated regimes for environmental protection. Even when legislative frameworks are well developed, there are often deficiencies in capacity and an unwillingness to […]
In April of this year, as a part of a broader rethink of Australia’s approach to international trade negotiations, the Gillard Government vowed that it will no longer include provisions on investor-state dispute settlement () in bilateral and regional trade agreements. The new policy is justified by reference to the principles of ‘no greater rights’ […]
Two international projects relating to foreign investment and sustainable development (SD) were completed in the past two months. These two projects individually and together show the emerging pathways to properly considering the linkages between new investments and SD in the host state and community. The first of these projects to be launched, on 4 April […]
Philip Morris v. Uruguay: Will investor-State arbitration send restrictions on tobacco marketing up in smoke?
For nearly two decades, the tobacco industry has used international investment rules to challenge governmentrestrictions on cigarette marketing. In 1994, R.J. Reynolds Tobacco Company threatened to bring a claim under the North American Free Trade Agreement’s () investment chapter as part of its successful lobbying campaign against Canada’s proposed “plain packaging” legislation, which would have […]
Investment arbitration and the Canada-EU Comprehensive Economic and Trade Agreement: Time for a change?
With the seventh round of negotiations between Canada and the European Union over the Canada-Comprehensive Economic and Trade Agreement ( ) completed this April, and the eighth round scheduled for July, the involved nations are closer than ever to being subject to the investment arbitration provisions of another free trade agreement. Canadian critics of CETA […]
The problem of moral hazard and its implications for the protection of ‘legitimate expectations’ under the fair and equitable treatment standard
While the concepts of sovereignty, human rights, the environment and the rule of law are often invoked in public debate about international investment treaties (IITs), there is relatively little discussion of the economic effects of such treaties. One of the most powerful legal protections provided by IITs is the protection of foreign investor’s ‘legitimate expectations’ under fair and equitable treatment () provisions, which are common to most IITs. This article draws on economic theory—specifically, the notion of moral hazard—to elucidate some of the problems with broader interpretations of the doctrine of legitimate expectations.
The last two decades have witnessed an exponential increase in arbitral disputes between investors and states under international investment treaties.reports 357 known registered cases by the end of 2009; of those, 202 cases—or 57 percent—were initiated after 2004. Independent investment tribunals now regularly render binding decisions as to whether states have violated investment protection standards guaranteed under various bilateral and multilateral investment treaties—a phenomenon that has turned international investment law into one of the most dynamic fields of public international law.
Reforming United States trade and investment treaties for financial stability: The case of capital controls
This short essay discusses new evidence in the economics profession showing that capital controls are important macro-prudential measures that nations should have in their toolkit to prevent and mitigate financial crises. More importantly for this publication, it will be shown that United States trade and investment treaties do not reflect the emerging consensus on capital controls. There is a unique opportunity to rectify this problem as the United States finalizes its new model bilateral investment treaty () and moves forward on negotiations for a Trans-Pacific Partnership Agreement (TPP) with numerous Pacific Rim nations. Moreover, an opportunity for reform lies in the pending Congressional votes on Bush-era trade deals such as those with South Korea, Colombia, and Panama.
To a significant extent the site of debate about the terms of globalization and its relationship to the regulatory state has shifted from the World Trade Organization to the world of investment treaties and arbitration. Investment treaties typically confer on a foreign investor a right to sue a host state that has allegedly failed to comply with a number of substantive obligations, typical among them the requirement to compensate for expropriation, fair and equitable treatment, and national treatment.
2010 midterm congressional elections in the United States: Implications for new U.S. International Investment Agreements
The Republican victories in U.S. congressional elections on 2 November 2010 are widely assumed to have increased the odds that the Obama administration will proceed with new bilateral investment treaties (BITs) and free trade agreements (FTAs) containing investment chapters. But this assumption bear closer examination. The post-election situation is complex.
UNCTAD’s 2010 World Investment Forum: High-level experts discuss investment policies for sustainable development
The 2010 World Investment Forum (WIF), held on 6-9 September 2010, in Xiamen, China, turnedinto the global gravity center for open, universal, inclusive and high-level international investment discourse and policy formation. Eight events and conferences were attended by more than 1,800 participants from 120 countries and 16 international organisations, among them nine heads of State, four heads of international organisations, 79 ministerial-level officials, and 116 senior business executives.
Fairness and independence in investment arbitration: A critique of «Development and Outcomes of Investment Treaty Arbitration»
There has been recent interest in the use of quantitative research tools to evaluate the fairness and independence of investment arbitration. In this article, Professor Gus Van Harten critiques one of the most prominent studies to examine this question. While the study in question, “Development and Outcomes of Investment Treaty Arbitration” (2009), has been used in some policy circles to support the argument that investment arbitration functions fairly, Van Harten argues it has limitations that prevent such conclusions.
It is no longer a secret that there is a new wave of foreign investment in farmland, predominantly in Africa. An explosion of media reports and a series of studies by the World Bank, Food and Agricultural Organisation (FAO), International Fund for Agricultural Development (IFAD), United Nations Conference on Trade and Development () and International Institute for Environment and Development (IIED), have confirmed the scale and consequences of this new influx of foreign investment. The World Bank report, by far the most comprehensive, found that reported deals amounted to 45 million hectares in 2009 alone.
Ignacio Torterola In October, State delegations are expected to discuss the issue of transparency in theRules of Arbitration. Ignacio Torterola, Liaison at the Argentine Embassy in Washington, DC, and Argentine Delegate to the UNCITRAL Working Group II, explains why greater openness would benefit the investment arbitration system. Some preliminary considerations Working Group […]
Ramon Torrent The Lisbon Treaty broadens European commercial policy in what marks the latest milestone in a long (and unfinished) journey in which the/ has sought to extend its exclusive competence over the entire area of external economic relations. Towards this goal, the European Commission has always led the course, albeit with limited success. […]
Reclaiming the public interest in Europe’s international investment policy: Will the future EU BITs be any better than the 1200 existing BITs of EU member states?
The Lisbon Treaty has shifted the competence related to Foreign Direct Investments () from the European Union Member States to the Union and has added it to the Union’s exclusive common commercial policy. This transfer of competence not only requires the development of a common investment policy, but also legislative steps to clarify the status of the 1200 existing Bilateral Investment Treaties (BITs) of the EU Member States and their ongoing negotiations. This offers a unique opportunity for an assessment of the existing BITs and for an open and broad discussion on the future European international investment policy.
Towards a comprehensive European international investment policy: An interview with Tomas Baert, European Commission, Directorate General for Trade, Services and Investment
With the’s Lisbon Treaty granting the European Union competence over Foreign Direct Investment, the European Commission released two documents in July that help chart the way forward: a draft regulation on how to deal with existing Bilateral Investment Treaties (BITs) of the EU Member States over the next five years, and a Communication that […]
By Elizabeth Whitsitt and Damon Vis-Dunbar30 November 2008 In 1991, Brazil began one of the world’s largest privatization programs, selling more than US$100 billion worth of assets. Seventeen years later and with a Gross Domestic Product (GDP) that ranks tenth in the world, Brazil is an industrial power that, according to the World Bank, is […]
An interview with Professor John Ruggie, United Nations Special Representative of the Secretary General on Business & Human Rights
1 October 2008 Professor John Ruggie was appointed to be Special Representative of the United Nations Secretary-General on business & human rights in 2005. Prof. Ruggie is also the Kirkpatrick Professor of International Affairs and Weil Director of the Sharmin and Bijan Mossavar Rahmani Center for Business and Government, as well as Affiliated Professor in […]