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Begin New Search Political Geography Global Focus Author Lise Johnson

1. Human Rights Law and the Investment Treaty Regime

Author:
Jesse Coleman, Kaitlin Y. Cordes, and Lise Johnson
Publication Date:
06-2019
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with realization of human rights and broader public interest objectives. This Chapter provides an overview of the interaction between human rights law and the investment treaty regime. It highlights the challenges that arise from tension between international human rights and investment norms, including the impact of the investment regime on the ability of host states to regulate and on access to justice for investment-affected rights holders. The chapter also explores whether and how human rights issues have been addressed by the investment regime to date, highlighting recent developments in treaty drafting practice and responses to human rights argumentation by investment tribunals. It notes the shortcomings of current approaches, and concludes by briefly setting out options for reform.
Topic:
Government, Human Rights, Treaties and Agreements, Reform, and Investment
Political Geography:
Global Focus

2. Costs and Benefits of Investment Treaties: Practical Considerations for States

Author:
Lisa Sachs, Lise Johnson, Brooke Güven, and Jesse Coleman
Publication Date:
03-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.
Topic:
Treaties and Agreements, Law, Legal Theory, and Investment
Political Geography:
Global Focus

3. Clearing the Path: Withdrawal of Consent and Termination as Next Steps for Reforming International Investment Law

Author:
Lise Johnson, Lisa Sachs, Brooke Güven, and Jesse Coleman
Publication Date:
04-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
This is a crucial moment in international investment policymaking. Two factors have converged, calling for a new direction. First, it has become increasingly difficult to justify investor-state dispute settlement (ISDS); even governments that had been among its strongest proponents are now changing course and have raised a range of fundamental, systemic and inter-related issues relating to ISDS. Second, policy makers and other stakeholders have a greater awareness of the need to design appropriate policies to maximize the contributions cross-border investment can make to sustainable development. Influenced by these factors, various reform efforts related to investment policy are underway at the national, regional, and international levels. These discussions about reform are likely to be slow, and outcomes uncertain. In the meantime, governments and their stakeholders remain tied to an outdated system that is widely acknowledged to be ill-suited for modern investment policy objectives, with increasingly concerning consequences. This policy paper explores two near-term options that governments engaged in reform discussions can pursue, alongside longer-term work on substantive and procedural reform. These options are: (1) a joint instrument on withdrawal of consent to arbitrate; and/or (2) a joint instrument on termination. The paper examines how both options could be implemented, and makes the case for putting a pause on ISDS to ensure that investment treaties and their dispute settlement mechanisms achieve their desired ends, produce legitimate decisions, and do not undermine international economic cooperation and sustainable development more broadly.
Topic:
International Cooperation, Regional Cooperation, Governance, Reform, Policy Implementation, and Investment
Political Geography:
Global Focus

4. 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