Resources and Events
Resources
Canadian Initiatives Against Bribery by Foreign Investors
By Matthew A. J. Levine, published by IISD, June 2019
This report builds on the broad recognition that corruption—with bribery as a particularly significant manifestation—is a grave threat to sustainable development. It focuses on Canadian legal initiatives against bribery by Canadian businesses investing abroad. By digging into both domestic and international law, the policy brief identifies four key points of interest to sustainable development stakeholders: (1) a spike in enforcement of Canada’s Foreign Bribery Prohibition; (2) the recent expansion of firm-level anti-bribery compliance requirements; (3) the adoption of mandatory payment transparency rules for extractive industry firms; and (4) the Canadian government’s stated goal to move to a “progressive” trade (and investment) agenda. Available at https://IISD.org/library/canadian-initiatives-against-bribery-foreign-investors
Local Content Policies in the Mining Sector: Scaling up local procurement
By Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (IGF), published by IISD, April 2019
This paper focuses on local procurement policies designed to boost the number of goods and services purchased by mining operations from local stakeholders. It unpacks various objectives that a local procurement policy can help respond to. It also details various types of policy instruments that can be used in the design of local procurement policies and underlines the strengths and weaknesses of each type of measure. In developing countries, the mining sector generally does not have a good track record when it comes to leveraging its potential for industrial development and economic transformation. Yet the potential is significant: if harnessed well, mining can unlock industrial activities through more value addition; create business opportunities for the domestic private sector from local procurement, in particular close to mine sites; generate indirect jobs along the supply chain; and provide wider opportunities for the economy, notably through the use of infrastructure and mining-related capabilities for other economic sectors. Available at https://www.IISD.org/library/local-content-policies-mining
World Investment Report 2019: Special economic zones
By UNCTAD, published by UNCTAD, June 2019
The World Investment Report (WIR) supports policy-makers by monitoring global and regional FDI trends and documenting national and international investment policy developments. The 2019 edition provides an overview of the global landscape concerning Special Economic Zones. In 2018, global FDI flows fell by 13 per cent to USD 1.3 trillion, the lowest level since the global financial crisis. The chapter on international investment policy-making notes that, in 2018, countries signed 40 IIAs and that terminations entered into effect for at least 24 treaties. IIA reform is progressing, but much remains to be done: while countries are increasingly interpreting, amending, replacing or terminating outdated treaties, the stock of old-generation treaties is 10 times larger than the number of modern, reform-oriented treaties. Investors continue to resort to old-generation treaties; in 2018, they initiated at least 71 ISDS cases. Reform efforts are occurring in parallel and often in isolation. Effectively harnessing international investment relations for the pursuit of sustainable development requires holistic and synchronized reform through an inclusive and transparent process. Available at https://UNCTAD.org/en/pages/PublicationWebflyer.aspx?publicationid=2460
Responsibility of the EU and the Member States under EU International Investment Protection Agreements: Between traditional rules, proceduralisation and federalisation
By Philipp Theodor Stegmann, published by Springer, 2019
This book provides a comprehensive portrait of how international responsibility of the EU and EU member states is structured under the EU’s international investment protection agreements. It analyzes both the old regime as represented by the ECT and the new regime as represented by the new EU investment treaties, such as CETA and the agreements with Singapore and Vietnam. The book puts forth the thesis that the determination of the EU or an EU member state as respondent in a dispute under the new EU investment treaties has a substantive effect on the respondent’s international responsibility. It compares the EU regulation that allocates financial burdens between the EU and EU member states arising out of international investment disputes with the only other genuinely existing allocation system in federal states to date, namely that of Germany. The book reveals shortcomings of the new EU responsibility regime in international investment law and provides suggestions on how they can best be remedied. Available at https://www.springer.com/gp/book/9783030043650
Taking Stock of IIA Reform: Recent developments
By UNCTAD, published by UNCTAD, June 2019
This IIA Issues Note tracks progress on IIA reform, finding that it is well underway and involves countries at all levels of development and from all regions. It highlights that almost all the treaties concluded in 2018 contain a large number of reform features, and the core focus of reform action is in relation to ISDS. Approaches to ISDS reform range from traditional ad hoc tribunals to a standing court or to no ISDS. The note stresses that harnessing international investment for sustainable development requires holistic and synchronized reform through an inclusive and transparent process. Available at https://investmentpolicy.unctad.org/publications/1203/taking-stock-of-iia-reform-recent-developments
SustainableFDI.org
By UNCTAD, published by UNCTAD, June 2019
SustainableFDI.org is UNCTAD’s dedicated site on promotion and facilitation of investment for sustainable development, in line with the 2030 Agenda and all the SDGs. It provides content related to investment in affordable and clean energy and climate action, as well as in each of the SDGs. It offers four main services: 1) News on Sustainable FDI, including events and publications by UNCTAD and partners working on mobilizing investment in the SDGs; 2) Global IPA Network, an interactive map with links to the websites of national investment promotion agencies; 3) Sustainable Development Goal Resource Center, a library of over 300 publications for investment promoters, classified by relevant SDGs; and 4) Sustainable FDI Opportunities, with links to investment promotion agency project databases. Available at http://sustainablefdi.org
Fact Sheet on Investor–State Dispute Settlement Cases in 2018
By UNCTAD, published by UNCTAD, May 2019
This IIA Issues Note provides an overview of known treaty-based ISDS cases initiated in the past year and overall ISDS case outcomes. It indicates that, as the surge in ISDS cases continues, the total ISDS case count may reach 1,000 by the end of 2019. At least 71 treaty-based ISDS cases were initiated in 2018, all but one under old-generation treaties signed before 2012. As of January 1, 2019, the total number of known ISDS cases pursuant to IIAs had reached 942. To date, 117 countries are known to have been respondents to one or more ISDS claims. The new ISDS cases in 2018 were initiated against 41 countries. As in previous years, the majority of new cases were brought against developing countries and transition economies. Developed-country investors brought most of the 71 known cases. Available at https://investmentpolicy.unctad.org/publications/1202/fact-sheet-on-investor-state-dispute-settlement-cases-in-2018
Investment Policy Hub
By UNCTAD, published by UNCTAD, May 2019
UNCTAD gave its Investment Policy Hub a facelift to make it more user-friendly. The main policy tools in the Hub are: 1) Country Navigator: the entry point for all country-specific investment policy data; 2) Investment Policy Monitor: the latest developments in investment policies around the world; 3) Investment Laws Navigator: a comprehensive online database of national investment laws; 4) International Investment Agreements Navigator: a comprehensive free database of investment treaties and model agreements; 5) Investment Dispute Settlement Navigator: details on all publicly known treaty-based ISDS cases; 6) Investment Policy Review: evaluation of a country’s legal, regulatory and institutional framework to attract direct investments; 7) Investment Policy Framework: reference for policy-makers in formulating investment policies and negotiating investment agreements. Available at http://investmentpolicy.unctad.org
Good Faith in Investment Treaty Arbitration
By Emily Sipiorsky, published by Oxford University Press, April 2019
This book considers the application of good faith by arbitral tribunals and parties in international investment disputes, encompassing both procedural and substantive aspects of good faith. It follows the arbitral process from jurisdiction to the final tribunal decisions, identifying the various applications of the principle of good faith in investment disputes. The author offers detailed analyses of the application of good faith at the jurisdictional phase of an investment dispute, then delves into the ways the principle informs tribunals’ decisions. Available at https://global.oup.com/academic/product/good-faith-in-international-investment-arbitration-9780198826446
Arbitration Costs: Myths and realities in investment treaty arbitration
By Susan D. Franck, published by Oxford University Press, April 2019
This book tests claims about investment arbitration and fiscal costs against data so that policy reforms can be informed by scientific evidence. It uses insights drawn from cognitive psychology and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties’ counsel and arbitral tribunals. It analyzes how and when cost-shifting occurs, parses tribunals’ rationalization (or lack thereof) of cost assessments and models the variables most likely to predict costs, using data to point the way toward evidence-based normative reform. Available at https://global.oup.com/academic/product/arbitration-costs-9780190054434
Yearbook on International Investment Law & Policy 2017
By Lisa Sachs, Lise Johnson, and Jesse Coleman (Eds.), published by Oxford University Press, March 2019
The 2017 edition of the annual publication provides a comprehensive overview of developments in the international investment law and policy field, focusing on trends and issues in FDI, investment treaty practice and investor–state arbitration. Available at https://global.oup.com/academic/product/yearbook-on-international-investment-law-and-policy-2017-9780198830382
Extraction Casino: Mining companies gambling with Latin American lives and sovereignty through international arbitration
By Jen Moore and Manuel Perez Rocha, published by Mining Watch Canada, Institute for Policy Studies and Center for International Environmental Law, April 2019
This report exposes 38 cases of mining companies that have been filing dozens of multi-million dollar claims against Latin American countries before investment arbitration tribunals, demanding compensation for court decisions, public policies and other government measures that they claim reduce the value of their investments. In most of these cases, communities have been actively organizing to resist mining activities and defend their land, health, environment, self-determination and ways of life. Available at https://ips-dc.org/report-extraction-casino
Digging for Dividends: The use and abuse of investor-state dispute settlement by Canadian investors abroad
By Hadrian Mertins-Kirkwood and Ben Smith, published by Canadian Centre for Policy Alternatives, April 2019
This report concludes that ISDS cases launched by Canadian investors outside North America follow a pattern of disproportionately targeting environmental policy in developing nations and that environmental policy is the fastest growing trigger for such cases. It finds that, since 1999, Canadian investors have initiated at least 43 ISDS claims against countries outside North America, whereas only one case has ever been brought against Canada by investors from a country other than the United States or Mexico. Available at https://www.policyalternatives.ca/digging-for-dividends
China–European Union Investment Relationships: Towards a new leadership in global investment governance?
By Julien Chaisse (Ed.), published by Edward Elgar, 2018
Bringing together expert contributors, this book provides a critical analysis of the current law and policy between the EU and China. This book deals with the key issues of the EU–China investment partnership and its implications, both internally and internationally. Each chapter covers a core theme of the subject of international economic law, including competition law, financial regulation, economic integration and dispute resolution. Available at https://www.e-elgar.com/shop/china-european-union-investment-relationships
Reforming Investment Dispute Settlement: A stocktaking
By UNCTAD, published by UNCTAD, March 2019
ISDS continues to be controversial, spurring debate in the investment and development community and among the public at large. States are responding to challenges and concerns surrounding ISDS through different avenues. Taking stock of where reform stands today, this IIA Issues Note traces ISDS-related reform developments in recently concluded IIAs and in policy-making processes from the national to the multilateral level. It lists five principal approaches emerging from IIAs signed in 2018: 1) no ISDS, 2) a standing ISDS tribunal, 3) limited ISDS, 4) improved ISDS procedures and 5) an unreformed ISDS mechanism. It also highlights the prominence gained by multilateral engagement on ISDS reform, including through UNCITRAL Working Group III discussions on the possible reform of ISDS and processes at ICSID for the amendment of its rules. Available at https://investmentpolicy.unctad.org/publications/1194/reforming-investment-dispute-settlement-a-stocktaking
Events 2019
September 3
ICC/ ITA/ ALArb CONFERENCE, International Chamber of Commerce, Institute for Transnational Arbitration, Asociación Latinoamericana de Arbitraje, in Medellín, Colombia, https://iccwbo.org/event/icc-ita-alarb-conference
September 25–26
3rd UNCITRAL WORKING GROUP III INTER-SESSIONAL REGIONAL MEETING ON ISDS REFORM, in Conakry, Guinea, https://uncitral.un.org/en/events/25-26.9.2019
September 26–27
COLLOQUIUM “ACTORS IN INTERNATIONAL INVESTMENT LAW: BEYOND CLAIMANTS, RESPONDENTS AND ARBITRATORS,” at University Paris II Panthéon-Assas, in Paris, France, https://www.transnational-dispute-management.com/news/20190926.pdf
October 3–4
14th ICC NEW YORK CONFERENCE ON INTERNATIONAL ARBITRATION, International Chamber of Commerce, in New York, United States, https://iccwbo.org/event/icc-new-york-conference-international-arbitration
October 7–11
15th IGF ANNUAL GENERAL MEETING: “MINING IN A CHANGING CLIMATE,” Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development, in Geneva, Switzerland, https://www.igfmining.org/event/15th-annual-general-meeting
October 8–11
WTO PUBLIC FORUM, at Centre William Rappard, in Geneva, Switzerland, https://www.wto.org/english/forums_e/public_forum_e/public_forum_e.htm
October 14–18 [to be confirmed]
38th SESSION OF UNCITRAL WORKING GROUP III, “INVESTOR–STATE DISPUTE SETTLEMENT REFORM,” United Nations Commission on International Trade Law, Vienna, Austria, https://uncitral.un.org/en/working_groups/3/investor-state
October 25–26
WORLD TRADE FORUM, “INTERNATIONAL ECONOMIC DISPUTE SETTLEMENT: DEMISE OR TRANSFORMATION?” at World Trade Institute (WTI) of the University of Bern, and the European University Institute (EU), Bern, Switzerland, https://www.wti.org/media/filer_public/b1/2e/b12e1c5d-8def-40ad-92bf-6c77cd3ffcfb/call_for_papers_wtf_2019.pdf
