Columbia FDI Perspectives
Perspectives on topical foreign direct investment issues by
the Vale Columbia Center on Sustainable International Investment
No. 94 May 6, 2013
Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Jennifer Reimer ([log in to unmask])
Common structures of investment law in an age of increasingly complex treaty-making
Stephan Schill and Marc Jacob*
Although international investment agreements (IIAs) continue to mushroom, it is widely assumed that international investment law can be analyzed as a single legal regime. This allows addressing legal questions relating to foreign investment in a systematic fashion and enables placing investment law in the context of global governance. It also allows description of the evolution of this regime as a whole. This is usually done along one-directional trajectories, from shorter and unrefined investment treaties to more elaborate models that rebalance investor rights and public interests. We challenge this one-directional perception and argue that the IIA landscape is becoming increasingly multifaceted and complex. This casts doubt on the idea of a uniform regime and raises the question how states and investors can navigate through the increasingly complex IIA thicket.
A review of IIAs concluded over the past three years reveals the growing complexity of investment treaty-making and raises the question of what common structures underpin the disparate treaty landscape:
These developments raise salient, but not yet fully addressed, questions as to the relationships between old and new agreements, PTIAs and investment protection treaties, regional and bilateral arrangements, and supranational and international legal norms and frameworks. These developments also suggest the existence of different strategies and philosophies pursued by different actors and herald the emergence of a more pluralistic and complex IIA universe. Chiefly, can international investment law still be considered a unified field, especially when a truly multilateral investment treaty is not a project states at large seem to be interested in pursuing at present?
In our view, several centripetal forces counteract the centrifugal tendencies regarding the drafting of new IIAs mentioned above. This allows one to appreciate common structures that hold international investment law together as a viable sub-discipline of international law and that enable meaningful interaction between different treaty-makers and users:
While efforts at harmonizing investment law against the will of states need to be avoided, these elements ensure the unity of the IIA regime without the need to conclude a formal multilateral investment treaty. Unity, in this view, does not mean strict uniformity, but rather the existence of a common framework of thinking, just as societies governed by the rule of law can agree to disagree. IIAs thus can meet the desire for tailor-made solutions without giving up the idea that there is a multilateral space of engagement for international investment relations, be it in the context of policy-making or dispute settlement. For these reasons, efforts to think about national and international investment policy in global and systemic terms and attempts to offer a toolbox for states with which to implement and adjust policies to individual needs, as done recently by UNCTAD’s Investment Policy Framework for Sustainable Development, should be welcomed. They are a step toward helping to manage the complexity of IIA-making.
* Stephan Schill ([log in to unmask]) is Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law,
 See Stephan Schill and Marc Jacob, “Trends in international investment agreements, 2010-2011” in Karl P. Sauvant, ed., Yearbook on International Investment Law and Policy 2011-2012 (New York: OUP, 2013), pp. 141-179, available at: http://www.vcc.columbia.edu/files/vale/content/Investment_Yearbook_2011-2012_chapter_3.pdf.
For further information, including information regarding submitting to the Perspectives, please contact: Vale Columbia Center on Sustainable International Investment, Jennifer Reimer, email@example.com. In addition to her role as Research Associate for the VCC, Ms. Reimer is Legal Counsel for LG Electronics’ Regional Headquarters for the Middle East and Africa.
The Vale Columbia Center on Sustainable International Investment (VCC), led by Lisa Sachs, is a joint center of Columbia Law School and the Earth Institute at Columbia University. It is the only applied research center and forum dedicated to the study, practice and discussion of sustainable international investment, through interdisciplinary research, advisory projects, multi-stakeholder dialogue, educational programs, and the development of resources and tools.
Most recent Columbia FDI Perspectives
· No. 93, Xiaofang Shen, “How the private sector is changing Chinese investment in Africa,” Columbia FDI Perspectives, April 15, 2013.
· No. 92, Vid Prislan and Ruben Zandvliet, “Labor provisions in bilateral investment treaties: Does the new US Model BIT provide a template for the future?,” Columbia FDI Perspectives, April 1, 2013.
· No. 91, Anthony O’Sullivan and Alexander Böhmer, “The Arab Awakening, act II: Time to move more boldly on investment,” Columbia FDI Perspectives, March 18, 2013.
· No. 90, Shaun E. Donnelly, “A business perspective on a China - US bilateral investment treaty,” Columbia FDI Perspectives, March 4, 2013.
· No. 89, Joachim Karl, “Investor-state dispute settlement: A government’s dilemma,” Columbia FDI Perspectives, February 18, 2013.
· No. 88, Jarrod Wong, “The compensatory nature of moral damages in investor-state arbitration,” Columbia FDI Perspectives, February 4, 2013.
· No. 87, Ralph Alexander Lorz, “Trying to change the rules for responding to arbitration unilaterally: The proposed new framework for investor-state dispute settlement for the EU,” Columbia FDI Perspectives, January 22, 2013.
· No. 86, Catharine Titi, “EU investment agreements and the search for a new balance: A paradigm shift from laissez-faire liberalism toward embedded liberalism?,” Columbia FDI Perspectives, January 3, 2013.
· No. 85, Karl P. Sauvant and Huiping Chen, ‘A China – US bilateral investment treaty: A template for a multilateral framework for investment?,’ Columbia FDI Perspectives, December 17, 2012.
All previous FDI Perspectives are available at http://www.vcc.columbia.edu/content/fdi-perspectives.