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1. Investment Facilitation for Development: A New Route to Global Investment Governance

Author:
Axel Berger, Sebastian Gsell, and Zoryana Olekseyuk
Publication Date:
01-2019
Content Type:
Special Report
Institution:
German Development Institute (DIE)
Abstract:
While global investment needs are enormous in order to bolster the implementation of the 2030 Agenda for Sustainable Development, developing countries are often excluded from global foreign direct investment (FDI) flows. Beyond economic fundamentals like market size, infra¬structure and labour, the impediments to FDI in developing countries relate to the predictability, transparency and ease of the regulatory environment. In contrast, tax incentives and international investment agreements (IIAs) have been found to be less important (World Bank, 2018). To harness the advantages of FDI, it is critical that governments have policies and regulations in place that help to attract and retain FDI and enhance its contribution to sustainable development. The 2030 Agenda and the Addis Ababa Action Agenda, thus, call for appropriate international frameworks to support investments in developing countries. In this context, the Joint Ministerial Statement on Investment Facilitation for Development adopted at the 11th Ministerial Conference of the World Trade Organization (WTO) in December 2017 called for the start of “structured discussions with the aim of developing a multilateral framework on investment facilitation”. Investment facilitation refers to a set of practical measures concerned with improving the transparency and predict¬ability of investment frameworks, streamlining procedures related to foreign investors, and enhancing coordination and cooperation between stakeholders, such as host and home country government, foreign investors and domestic corporations, as well as societal actors. Despite the deadlock in the WTO’s 17-year-old Doha Round negotiations, the structured discussions on investment facilitation, which have been under way since March 2018, show that the members of the WTO take a strong interest in using the WTO as a platform to negotiate new international rules at the interface of trade and investment. In contrast to previous attempts by developed countries to establish multilateral rules for investment, the structured discussions are mainly driven by emerging and developing countries. Most of them have evolved over the past years into FDI host and home countries reflecting the changing geography of economic power in the world. Their increased role has led to a shift of policy agendas, focusing on practical measures to promote FDI in developing countries while excluding contentious issues such as investment liberali¬sation and protection, and investor–state dispute settlement (ISDS). This policy brief provides an overview of the emerging policy debate about investment facilitation. We highlight that four key challenges need to be tackled in order to negotiate an investment facilitation framework (IFF) in the WTO that supports sustainable development.
Topic:
Development, World Trade Organization, Sustainable Development Goals, and Investment
Political Geography:
Germany and Global Focus

2. 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

3. Innovative Financing Solutions for Community Support in the Context of Land Investments

Author:
Sam Szoke-Burke and Kaitlin Y. Cordes
Publication Date:
03-2019
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments. Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. This report presents a call to action to help communities secure the support they so crucially need. The report explores options for tapping new funding sources for community support. These include: Government marshaling of funding from companies and others, through taxes, fees, and penalties Basket funds, operated by independent, trusted entities and funded by contributions from multiple actors Market-based impact investments and social impact bonds Direct company funding Third party funding Other solutions for increasing funding or reducing costs, including crowdfunding, generating profits from social enterprises, affordable user fees or in-kind services, contingency and uplift fees, and court-ordered fee shifting. The report also presents overarching considerations for developing a new financing initiative. These include: the initiative’s likely cost, efficiency and financial sustainability, political complexity and obstacles, political economy implications, the importance of strong governance mechanisms, and the logistics required to link funding, communities and support providers.
Topic:
Agriculture, Human Rights, Natural Resources, Investment, and Land
Political Geography:
Global Focus

4. Advancing SDGs in International Investment Agreements: Building Peace and Justice through General Exceptions Clauses

Author:
Guy Marcel Nono
Publication Date:
11-2019
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
For more than a decade, there has been a lot of focus on how sustainable development relates to international investment law. The growing trend of including general and security exceptions clauses in international investment agreements (IIAs) has also been highlighted. However, the nexus between general IIAs and security exceptions and the achievement of the SDGs has not been explored.
Topic:
Security, International Law, Sustainable Development Goals, and Investment
Political Geography:
Global Focus

5. Business & Peace 2019

Publication Date:
09-2019
Content Type:
Special Report
Institution:
Institute for Economics & Peace
Abstract:
This report analyses the relationship between the economic performance of a country and its levels of peace. The major finding of this report is that peace acts as a good predictor of a country’s future performance in a number of macroeconomic indicators. These insights can be used to better assess the expected investment potential of countries. Rather than asking what businesses can do for peace, the study differentiates itself from other work by focusing on what peace can offer businesses. Institute for Economics & Peace (IEP) sees this as an important but missing step in business analysis. In order for businesses to be an actor in building peace, investors first need to see the benefits of peace to their investment decisions. The results of this work show that economic performance can be predicted by understanding the movement in the same socio-economic factors that affect peacefulness. These conditions are known as Positive Peace. The countries that improved the most in Positive Peace between 2010 and 2016 also had substantially above average economic performance.
Topic:
Economics, Peace Studies, Business, Economic growth, Investment, Peace, and Profit
Political Geography:
Global Focus

6. 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

7. 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

8. Financialization, Trade, and Investment Agreements: Through the Looking Glass or Through the Realities of Income Distribution and Government Policy?

Author:
Alex Izurieta, Pierre Kohler, and Juan Pizarro
Publication Date:
09-2018
Content Type:
Working Paper
Institution:
Global Development and Environment Institute at Tufts University
Abstract:
This paper assesses the effects of trade and investment agreements on income distribution and government policy. The critical process underpinning these effects is the rise of ‘financialization’. Global patterns of greater financialization and of worsening functional income distribution as well as tighter fiscal stances are identified in the data. Tests are conducted by combining financial statistics with databases of bilateral investment agreements and free trade agreements, as well as data generated by the UN Global Policy Model that encompasses several fiscal policy instruments. The empirical validation of these relationships brings to the fore the policy-oriented debate about the purported benefits of modern-era ‘comprehensive’ trade and investment agreements such as TTIP, TTP and CETA. The authors corroborate the findings of their respective earlier studies of these agreements and reiterate their call for caution. To preserve policy space and to avert increases of inequality, policy-makers should resist pressures to get their economies locked in such agreements and should look instead for sustainable forms of international policy coordination.
Topic:
International Cooperation, United Nations, Investment, and Trade
Political Geography:
Global Focus

9. Do Trade and Investment (Agreements) Foster Development or Inequality?

Author:
Pierre Kohler and Francis Cripps
Publication Date:
10-2018
Content Type:
Working Paper
Institution:
Global Development and Environment Institute at Tufts University
Abstract:
This paper proposes to revisit the debate on trade and investment agreements (TIAs), development and inequality, looking at the role of Global Value Chains (GVCs) and trans- national corporations (TNCs). It first presents stylized facts about trade and investment (agreements), declining global economic growth and rising inequality under the latest round of globalization. It then provides a long-run perspective on the mixed blessings of external opening, summarizing some key contributions of the mainstream literature, which are converging with long-standing research findings of more heterodox economists, and the eroding consensus today. Based on this stock-taking, it takes a fresh critical look at the TIAs-GVCs-TNCs nexus and their impact. Using data on value-added in trade and new firm-level data from the consolidated financial statements of the top 2000 TNCs going back to 1995, it examines whether the fragmentation of production along GVCs led to positive structural change or rather stimulated unsustainable trends in extractive and FIRE sectors. It then turns to the role of TNC-driven GVCs as a vehicle for economic concentration. Finally, it presents evidence linking TIAs and their correlates to rising inequality. Key findings include the fact that the ratio of top 2000 TNCs profits over revenues increased by 58 percent between 1995 and 2015. Moreover, the rise in top 2000 TNCs profits accounts for 69 percent of the 2.5 percentage points decline in the global labour income share between 1995 and 2015, with the correlation coefficient between annual changes in both variables as high as 0.82. The paper concludes by calling for a less ideological policy debate on TIAs, which acknowledges the mixed blessings of external financial and trade opening, especially their negative distributional impact and destabilizing macro-financial feedback effects, which both call for policy intervention. As an alternative to short-sighted protectionism, it further discusses possible options for anticipating undesirable effects arising from TIAs (e.g. rising carbon emissions, economic instability, inequality, etc.) and addressing those in TIAs themselves.
Topic:
Inequality, Investment, Trade, and transnationalism
Political Geography:
Global Focus

10. International Investment Law and the Rule of Law

Author:
Peter-Tobias Stoll
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International investment law appeals to a lawyer’s appetite for the rule of law by disciplining the exercise of power between States and foreign investors through legalization and judicialization. Originally supposed to serve as a fix to promote foreign investments in developing countries in times of legal uncertainties, now, thousands of bilateral investment agreements exist, and the number of cases in investment arbitration has exploded in the last decade. Further, there is a tendency of generalization, as investment protection now features as a standard element of international trade agreements, far beyond the original focus on developing countries. A number of flaws and shortcomings of the rules and procedures became apparent in the course of the more frequent use of the system and resulted in much discussion within the expert community, which resulted in some changes. Furthermore, the long neglected possibility became apparent, that investment claims could be directed against industrialized countries and that the conduct of their authorities could be subjected to review by international arbitration tribunals. This sparked heated public debates, particularly so in the EU. These two developments have in common, that they implicitly as well as explicitly raised the issue of the rule of law. This paper will assess the system of international investment law as it stands, its critique and its reform, through the lens of the rule of law. It will also make a highly idealistic proposal on the further development of international investment protection. In concluding, it will reflect on the proper use of the rule of law in legal analysis, by setting out the different perspectives in which the term may be employed, and the methodological consequences.
Topic:
International Law, International Trade and Finance, Rule of Law, and Investment
Political Geography:
Global Focus