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61. How to deal with the growing incentives competition

Author:
Kenneth P. Thomas
Publication Date:
09-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
As I discussed in an earlier Perspective, the use of investment incentives is pervasive and growing. The most recent example of a big bidding war was when Boeing threatened to move production of its 77 7 - X aircraft out of Washington state, prompting some 20 states to offer incentive packages to the company (including $1.7 billion from Missouri). In the end, Washington gave Boeing a package of tax incentives worth a record - breaking $8.7 billion over the 2 025 – 2040 period to stay, and the unions made substantial concessions regarding pensions.
Political Geography:
Washington

62. Good Governance of Third Party Funding

Author:
Catherine Kessedjian
Publication Date:
09-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
An OECD study shows that arbitration costs in investment disputes average US$ 8 million; in one case involving mass claims, the parties spent almost US$ 40 million in legal fees just to reach the decision on jurisdiction. Under these circumstances, it is no wonder that third party funding has become the talk of the town.

63. The Canada-China BIT 2012: Perspectives and Implications

Publication Date:
09-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
<p>The Canada-China BIT could provide insight on the key issues to be discussed in a possible US-China BIT. A particularly controversial issue will be the terms of investor-state arbitration (ISA). But as ISA becomes increasingly controversial between developed democratic states, it may become harder to negotiate ISA with China.</p>

64. ICSID, public opinion and the effect of (hypothetical) elite messaging

Author:
Alisha Anderson and Alexandra Guisinger
Publication Date:
08-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
The International Centre for Settlement of Investment Disputes (ICSID) has emerged as a powerful actor within the field of inter-state investment arbitration. However, as with other international institutions, its existence depends on continued acceptance by domestic actors.

65. The Transparency Rules and Transparency Convention: A good start and model for broader reform in investor-state arbitration

Author:
Lise Johnson
Publication Date:
07-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
In July 2013, after nearly three years of work, the United Nations Commission on International Trade Law (UNCITRAL) adopted a set of arbitration rules that will help open some investor-state arbitrations to public view. The UNCITRAL Rules on Transparency in Treaty - based Investor - State Arbitration (Transparency Rules) were crafted with input from governments, academics, arbitration practitioners, and non-governmental organizations, and approved by consensus by the member states. When applied, the Transparency Rules will require disclosure of information submitted to, and issued by, arbitral tribunals throughout proceedings, mandate open hearings and expressly allow for participation by non-parties to a dispute. The Transparency Rules also guard against disclosure of confidential information and establish a repository in which all information will be published.

66. Withdrawing incentives to attract FDI: Can host countries put the genie back in the bottle?

Author:
Anna De Luca
Publication Date:
07-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
Many governments offer incentives to attract foreign direct investment (FDI). For example, the renewable energy sector has benefitted from large national incentive schemes in the past decade. However, the withdrawal of such incentives can lead to investors bringing investment treaty claims against host countries. This Perspective looks at some claims host countries face from investors in the renewable energy sector and their implications.

67. How to enhance labor provisions in IIAs

Author:
Rafael Tamayo-Álvarez, Maria Alejandra Gonzalez-Perez, and Juan David Rodriguez-Rios
Publication Date:
06-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
Free trade agreements (FTAs) and international investment agreements (IIAs) are regarded as instruments to promote world trade, investment flows and market liberalization. The question, however, is whether they promote sustainable development as well. This Perspective contemplates incorporating voluntary codes of conduct for multinational enterprises (MNEs) in IIA s to strengthen the protection of labor rights, “the social component [...] embedded in the notion of sustainable development.”

68. Cost allocation in investment arbitration: Forward toward incentivization

Author:
John Gaffney and James Nicholson
Publication Date:
06-2014
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
In their contribution to the FDI Perspectives series, Baiju Vasani and Anastasiya Ugale drew attention to an emerging trend in favor of the so-called “costs follow the event” (CFtE) (or loser pays) approach, which is in contrast to the more “traditional” approach under which parties share the costs of arbitration equally, with each party covering its own legal fees.

69. Investment Treaties and Industrial Policy: Select Case Studies on State Liability for Efforts to Encourage, Shape and Regulate Economic Activities in Extractive Industries and Infrastructure

Author:
Lise Johnson
Publication Date:
02-2014
Content Type:
Special Report
Institution:
Columbia Center on Sustainable Investment
Abstract:
This paper, prepared in connection with a February 2014 conference organized by the UN Economic Commission for Africa, discusses some of the implications that investment treaties have for investments in infrastructure and the extractive industries. It focuses on liability for government conduct (1) in connection with tenders and negotiations; (2) when responding to questions regarding the legality of the investment; (3) in using performance requirements to leverage benefits and capture spillovers from the investment; (4) changing the legal framework governing an investment in response to evolving needs, circumstances, and interests; (5) administering the investment; and (6) requesting, and responding to requests for, renegotiation. After describing some investment treaty disputes, this paper concludes by outlining options for addressing and minimizing tensions between investment treaties and government policies and practices in these areas.
Topic:
International Political Economy and Foreign Direct Investment
Political Geography:
Global Focus

70. The Transparency Rules and Transparency Convention: A good start and model for broader reform in investor-state arbitration

Author:
Lise Johnson
Publication Date:
07-2014
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
In July 2013, after nearly three years of work, the United Nations Commission on International Trade Law (UNCITRAL) adopted a set of arbitration rules that will help open some investor-state arbitrations to public view. The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (Transparency Rules) were crafted with input from governments, academics, arbitration practitioners, and non-governmental organizations, and approved by consensus by the member states. When applied, the Transparency Rules will require disclosure of information submitted to, and issued by, arbitral tribunals throughout proceedings, mandate open hearings and expressly allow for participation by non-parties to a dispute. The Transparency Rules also guard against disclosure of confidential information and establish a repository in which all information will be published.
Topic:
International Law, International Trade and Finance, and Treaties and Agreements
Political Geography:
United Nations