View this email in your browser
<http://us6.campaign-archive2.com/?u=ab15cc1d53&id=a91f0c1659&e=dd153d6a25>
哥伦比亚大学国际直接投资展望中文版都可以在我们的网站查看：
http://www.ccsi.columbia.edu/content/fdi-perspectives
<http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=9a180e0dbe&e=dd153d6a25>
.
*Columbia FDI Perspectives*
Perspectives on topical foreign direct investment issues by
the Vale Columbia Center on Sustainable International Investment
No. 126 July 21, 2014
Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Shawn Lim ([log in to unmask])
*The Transparency Rules and Transparency Convention: A good start
and model for broader reform in investor-state arbitration*
<http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=8b027bc1e0&e=dd153d6a25>
by
Lise Johnson* <#147693164c7b4d72__edn1>
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.[1] <#147693164c7b4d72__edn2> The Transparency
Rules also guard against disclosure of confidential information and
establish a repository in which all information will be published.[2]
<#147693164c7b4d72__edn3>
But while the Transparency Rules are an important first step in efforts to
shed light on the often-opaque investor-state arbitrations, they still
leave much work to be done.
The problem is not in their content but in their application. In
particular, Article 1(2) of the Transparency Rules carves out from their
coverage *all* treaties concluded before the Transparency Rules entered
into force on April 1, 2014, unless states or disputing parties
specifically take steps to “opt in” to the Transparency Rules by clear
agreement. For these thousands of existing treaties, this provision
effectively turns the Transparency Rules into optional guidelines.
In July 2014, UNCITRAL took a step to help close this large loophole[3]
<#147693164c7b4d72__edn4> by finalizing the Mauritius Convention on
Transparency (Transparency Convention).
In brief, the Transparency Convention establishes two main routes for the
Transparency Rules to apply to existing treaties. First, if both the
respondent state and the home country of the claimant are parties to the
Transparency Convention (and have not taken relevant reservations), any
arbitration initiated by a claimant—whether under the UNCITRAL arbitration
rules or not—will be governed by the Transparency Rules.
Second, there is an option for states to make binding unilateral offers to
arbitrate under the Transparency Rules. Even if the home country is not a
party to the Transparency Convention, or is a party but has taken a
specific reservation for the relevant investment treaty, the Transparency
Rules will apply if the respondent state has given its advance consent
under the Transparency Convention and the investor agrees to apply the
Transparency Rules.
The Transparency Convention will go to the United Nations General Assembly
for approval in Fall 2014 and enter into force once ratified by three
states.
But as efforts to ensure wide adoption of the Transparency Convention
proceed, efforts should also be made for broader and deeper reforms.
First, both the Transparency Rules and Transparency Convention leave gaps
enabling states and investors to continue to avoid disclosure. Reform is
thus needed in other institutions such as the International Centre for
Settlement of Investment Disputes (ICSID).[4] <#147693164c7b4d72__edn5>
Indeed, ICSID, an early leader on transparency, has recently signaled that
it will revisit the issue. When it does, it should ensure any reforms
reflect commitment to transparency in disputes arising under existing as
well as future treaties.
Second, and also relevant for ICSID, reforms need to move beyond investment
treaty disputes and require disclosure of information relating to
investor-state disputes arising under contracts. Particularly in an era
when transparency of investor-state contracts is increasingly recognized
within the United Nations and the World Bank as a fundamental element of
good governance, it makes little sense to allow those disputes to remain
behind closed doors.
Third, states should consider the Transparency Convention as a model for
implementing broader reforms. Through its use of reciprocal commitments,
unilateral offers and reservations, it shows how states can achieve changes
in the investment-treaty system in addition to ensuring transparency. A
similar convention could, for example, create a new standing judicial body
or appellate mechanism for investor-state arbitrations.
Overall, UNCITRAL’s recent steps recognize the importance of transparency
in promoting good governance and accountability and show how the content
and structure of the existing investment regime can be reformed. All eyes
are now on other institutions like ICSID and treaty negotiators to follow
suit.
------------------------------
* <#147693164c7b4d72__ednref1> Lise Johnson ([log in to unmask]) is a
legal researcher at the Columbia Center on Sustainable Investment and leads
its work on Investment Law and Policy. The author wishes to thank Anna
Joubin-Bret, Sophie Nappert and Gus Van Harten for their helpful peer
reviews, as well as Lisa Sachs for her comments. *The views expressed by
the author of this Perspective do not necessarily reflect the opinions of
Columbia University or its partners and supporters. Columbia FDI
Perspectives (ISSN 2158-3579) is a peer-reviewed series.*
[1] <#147693164c7b4d72__ednref2> For more information, *see* Columbia
Center on Sustainable Investment, Submissions to UNCITRAL Working Group II
on Arbitration and Conciliation,
http://ccsi.columbia.edu/2013/02/05/submissions-to-uncitral-working-group-ii-on-arbitration-and-conciliation/
.
[2] <#147693164c7b4d72__ednref3> *See *UNCITRAL, Transparency Registry,
http://www.uncitral.org/transparency-registry/registry/index.jspx.
[3] <#147693164c7b4d72__ednref4> States and disputing parties can also use
other paths to signal their agreement to apply the Transparency Rules to
disputes arising under treaties carved out by Article 1(2). For more on
this, *see* Lise Johnson and Nathalie Bernasconi-Osterwalder, “New UNCITRAL
arbitration rules on transparency: Application, content and next steps,”
August 2013, pp. 23-25, available at
http://ccsi.columbia.edu/files/2014/04/UNCITRAL_Rules_on_Transparency_commentary_FINAL.pdf
.
[4] <#147693164c7b4d72__ednref5> For a comparison of the UNCITRAL and other
arbitration rules, *see* Johnson and Bernasconi-Osterwalder, *supra* note
3, pp. 6-7.
*The material in this Perspective may be reprinted if accompanied by
the following acknowledgment: “Lise Johnson, ‘**The Transparency Rules and
Transparency Convention: A good start and model for broader reform in
investor-state arbitration**’ Columbia FDI Perspectives, No. 126, July 21,
2014. Reprinted with permission from the Columbia Center on Sustainable
Investment (www.ccsi.columbia.edu <http://www.ccsi.columbia.edu>).” A copy
should kindly be sent to the Columbia Center on Sustainable Investment at
[log in to unmask] <[log in to unmask]>.*
For further information, including information regarding submission to the
*Perspectives*, please contact: Columbia Center on Sustainable Investment,
Shawn Lim, [log in to unmask] or [log in to unmask]
The Columbia Center on Sustainable Investment (CCSI), a joint center of
Columbia Law School and the Earth Institute at Columbia University, is a
leading applied research center and forum dedicated to the study, practice
and discussion of sustainable international investment. Our mission is to
develop and disseminate practical approaches and solutions, as well as to
analyze topical policy-oriented issues, in order to maximize the impact of
international investment for sustainable development. The Center undertakes
its mission through interdisciplinary research, advisory projects,
multi-stakeholder dialogue, educational programs, and the development of
resources and tools. For more information, visit us at www.ccsi.columbia.edu
<http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4ce0e5e83e&e=dd153d6a25>
.
*Most recent Columbia FDI Perspectives*
<http://columbia.us6.list-manage2.com/track/click?u=ab15cc1d53&id=8a1384a037&e=dd153d6a25>
- No. 125, Anna De Luca, “Withdrawing incentives to attract FDI: Can
host countries put the genie back into the bottle?” July 7, 2014.
- No. 124, Rafael Tamayo-Álvarez, Maria Alejandra Gonzalez-Perez and
Juan David Rodriguez-Rios, “How to enhance labor provisions in IIAs,” June
23, 2014.
- No. 123, James Nicholson and John Gaffney, “Cost allocation in
investment arbitration: Forward toward incentivization,” June 9, 2014.
- No. 122, Miguel Pérez Ludeña, “The rise of FDI income, and what it
means for the balance of payments of developing countries,” May 26, 2014.
- No. 121, Karl P. Sauvant and Victor Z. Chen, “China needs to
complement its “going-out” policy with a “going-in” strategy,” May 12, 2014.
*All previous FDI Perspectives are available at *
*http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/*
<http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=9cb4ebf823&e=dd153d6a25>
*. *
Karl P. Sauvant, Ph.D.
Resident Senior Fellow
Columbia Center on Sustainable Investment
Columbia Law School - Earth Institute
Columbia University
435 West 116th Street, Rm. JGH 645
New York, NY 10027
Ph: (212) 854-0689
Fax: (212) 854-7946
Please visit our website - http://www.ccsi.columbia.edu
<http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=f1fa8e5e4b&e=dd153d6a25>
For Karl P. Sauvant and Federico Ortino, *Improving the International
Investment Law and Policy Regime: Options for the Future*, and Karl P.
Sauvant and Victor Zitian Chen, "China's regulatory framework for outward
foreign direct investment,"*China Economic Journal*, vol. 7 (2014), pp.
141-163, see the Center's website.
*Copyright © 2014 Columbia Center on Sustainable Investment
(CCSI), All rights reserved.*
[log in to unmask]
*Our mailing address is:*
Columbia Center on Sustainable Investment (CCSI)
Columbia Law School - Earth Institute, Columbia University
435 West 116th Street
New York, NY 10027
Add us to your address book
<http://columbia.us6.list-manage1.com/vcard?u=ab15cc1d53&id=a61bf1d34a>
unsubscribe from this list
<http://columbia.us6.list-manage1.com/unsubscribe?u=ab15cc1d53&id=a61bf1d34a&e=dd153d6a25&c=a91f0c1659>
update subscription preferences
<http://columbia.us6.list-manage1.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=dd153d6a25>
[image: Email Marketing Powered by MailChimp]
<http://www.mailchimp.com/monkey-rewards/?utm_source=freemium_newsletter&utm_medium=email&utm_campaign=monkey_rewards&aid=ab15cc1d53&afl=1>
____
AIB-L is brought to you by the Academy of International Business.
For information: http://aib.msu.edu/community/aib-l.asp
To post message: [log in to unmask]
For assistance: [log in to unmask]
AIB-L is a moderated list.
