Print

Print


*Karl P. Sauvant, PhD*
*Resident Senior Fellow*
*Columbia Center on Sustainable Investment**
Columbia Law School - The Earth Institute, Columbia University
435 West 116th St., Rm. JGH 825, New York, NY 10027
| p: (212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask]
| w: www.ccsi.columbia.edu | t: @CCSI_Columbia
<https://twitter.com/CCSI_Columbia>

* Formerly the Vale Columbia Center on Sustainable international Investment.

“The negotiations of the United Nations Code of Conduct on
Transnational Corporations: Experience and lessons learned” and K. P.
Sauvant and F. Ortino, *Improving the International Investment Law and
Policy Regime: Options for the Future are* available at
http://www.works.bepress.com/karl_sauvant/.




View this email in your browser
<http://us6.campaign-archive1.com/?u=ab15cc1d53&id=6dffe17501&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://ccsi.columbia.edu/publications/columbia-fdi-perspectives.
<http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=74bcf7e743&e=dd153d6a25>
*Columbia FDI Perspectives*
Perspectives on topical foreign direct investment issues
No. 157   September 28, 2015
Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Adrian P. Torres ([log in to unmask])
*Investment treaty law, sustainable development and responsible business
conduct: *
*A fact-finding survey*
<http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=68c33b033a&e=dd153d6a25>
by
Kathryn Gordon, Joachim Pohl and Marie Bouchard*** <#15014966e81faa0a__edn1>

Most governments are committed to sustainable development and responsible
business conduct,[i] <#15014966e81faa0a__edn2> such as the protection of
the environment, labor conditions and standards, the fight against
corruption, and human rights. It is safe to assume that these governments
also seek to attract foreign investors with protections offered in their
international investment agreements (IIAs). It is less obvious, however,
how these two policy objectives interact within international investment
law.

Analyzing a sample of some 2,100 IIAs concluded by over 50 developed and
emerging economies, it emerges that, although 47 of the 54 countries
studied included some form of sustainable development or responsible
business conduct language in at least one of their IIAs, a wide variation
in treaty practice across countries exists. There is also a clear trend of
including such references in recent IIAs: more than three-fourths of the
IIAs concluded between 2008 and 2013 contain language on sustainable
development or responsible business conduct.

Nevertheless, because references to sustainable development and responsible
business conduct only began to be incorporated in 1985 with the inclusion
of environmental concerns (labor standards were first introduced in 1990,
anti-corruption in 2000, human rights in 2002), treaties without any
sustainable development and responsible business conduct language continue
to be prevalent. Only 12% of the sample IIAs contained language on these
matters, and the distribution of this language was unequal – environmental
protection was addressed in 10% of the treaties, followed by labor
standards (5.5%), anti-corruption (1.5%) and human rights (0.5%). Moreover,
the depth with which sustainable development and responsible business
conduct issues were covered varied from a few words to extensive text of up
to several pages.

Despite the relatively small number of IIAs containing responsible business
conduct language, countries have adopted different approaches on *how* to
introduce sustainable development and responsible business conduct issues
in the context of treaties originally aimed at protecting investment. The
survey identified nine different ways in which treaties referenced these
concerns in terms of the parties’ legal obligations. These were, in order
of frequency: (i) preamble language; (ii) language on preserving policy
space; (iii) language discouraging loosening environmental or labor
regulations to attract investment; (iv) language establishing that, in
general, measures taken to protect public welfare objectives do not
constitute indirect expropriation; (v) commitments to cooperate on
responsible business conduct matters; (vi) language establishing a relation
between responsible business conduct and the investor-state dispute
settlement system; (vii) language establishing commitment to maintain or
implement certain internationally recognized standards; (viii) language
establishing a commitment to act against corruption; and (ix) language
encouraging the respect of specific responsible business conduct standards,
such as those contained in the *OECD Guidelines for Multinational
Enterprises*.

Arbitration panels in investor-state disputes also included references to
these same sustainable development and responsible business conduct issues.
A survey of 1,113 treaty-based arbitration documents quantified whether
arbitrators referred to issues beyond investment protection in their
decisions. More than one in four decisions mentioned or, at times,
extensively discussed, at least one of the four sustainable development and
responsible business conduct issues identified in the first paragraph.
Arbitral tribunals also referred to international agreements relevant for
sustainable development and responsible business conduct when deciding
arbitration cases: a total of 28 international agreements dealing with
environmental protection, labor conditions and standards, anti-corruption,
and human rights were cited in the sample of the 1,113 decisions.

Thus, there is evidence of growing interaction between investment treaty
law and sustainable development and responsible business conduct.
Governments are much more likely to refer to sustainable development and
responsible business conduct concerns in IIAs, while arbitration panels
also consider such concerns fairly frequently when dealing with
investor-state disputes.

However, reaping the full benefits of investment treaties for sustainable
development will require that governments explore options for investment
treaty language that protect their “policy space” not only in the policy
areas surveyed here, but in all areas in which governments have a role in
protecting the public interest. In addition, the dispute-resolution
procedures that are inseparable from, and enforce, these commitments should
be aligned with good practices in domestic investor-state disputes
settlement. Avenues for reform include: ensuring that high standards of
public sector transparency are respected in all treaty-based arbitration
cases; boosting public confidence by aligning treaties’ dispute-settlement
procedures with those of advanced domestic law systems; and either
eliminating special treaty-based privileges for foreign investors that are
not available to domestic investors or providing a persuasive policy
rationale for these privileges.

------------------------------
* <#15014966e81faa0a__ednref1> Kathryn Gordon ([log in to unmask]) is
Senior Economist at the OECD; Joachim Pohl ([log in to unmask]) is Legal
Expert; Marie Bouchard ([log in to unmask]) is lawyer and
lecturer at Sciences Po Law School. This *Perspective *is based on Kathryn
Gordon, Joachim Pohl and Marie Bouchard, “Investment treaty law,
sustainable development and responsible business conduct: A fact-finding
survey”,* OECD Working Papers on International Investment *(Paris: OECD,
2014), available at http://dx.doi.org/10.1787/5jz0xvgx1zlt-en
<http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b4abfa1777&e=dd153d6a25>.
The authors are grateful to Cristian Rodriguez Chiffelle, Kate Miles and
Andrew Newcombe for their helpful peer reviews. *The views expressed by the
authors 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.*
[i] <#15014966e81faa0a__ednref2> Responsible business conduct is a broad
concept that focuses on two aspects of the business-society relationship:
1) positive contributions businesses can make to economic, environmental
and social progress, with a view to achieving sustainable development, and
2) avoiding adverse impacts and addressing them when they do occur. *See*
OECD, *Responsible Business Conduct Matters: OECD Guidelines for
Multinational Enterprises *(Paris: OECD, 2013), pp. 6-7.
*The material in this Perspective may be reprinted if accompanied by the
following acknowledgment: “Kathryn Gordon, Joachim Pohl and Marie Bouchard,
‘Investment treaty law, sustainable development and responsible business
conduct: A fact-finding survey,’ Columbia FDI Perspectives, No. 157,
September 28, 2015. 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,
Maree Newson, [log in to unmask]

*Most recent Columbia FDI Perspectives*
<http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=9b35cf0e23&e=dd153d6a25>


   - No. 156, Robert Milbourne, “The case for harmonizing the international
   regulation of mining,” September 14, 2015.
   - No. 155, Wolfgang Sofka, Miguel Torres Preto and Pedro de Faria,
   “Foreign divestment: What stays when multinational leave?” August 31, 2015.
   - No. 154, Srividya Jandhyala, “Bringing the state back in: India’s 2015
   model BIT,” August 17, 2015.

*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=8a054518f4&e=dd153d6a25>
*. *

*Other relevant CCSI news and announcements*

   - CCSI kicked off it's Fall 2015 International Investment Law and Policy
   Speaker Series, co-sponsored by Crowell & Moring LLP and Baker & McKenzie
   LLP, last week. The next talk will be by *Gabrielle
Kaufmann-Kohler* on *October
   1, 2015* at Columbia Law School, Jerome Greene Hall, Room 546 (435 W
   116th Street, between Amsterdam and Morningside Avenues) from
   12:10pm-1:00pm. *For more information and the full schedule of talks,
   please see our website
   <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e1244691ee&e=dd153d6a25>.*
   - *On **October 7, 2015 *at 10:30am, CCSI will launch
   OpenLandContracts.org
   <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=164d44f9f0&e=dd153d6a25>,
   an online repository
   <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=ffc3126afe&e=dd153d6a25>
of
   land, agriculture, and forestry contracts. The repository provides the full
   text of contracts; plain language summaries of each contract’s key social,
   human rights, environmental, fiscal, and operational provisions; and
   options for searching and comparing contracts. The launch will feature a
   demonstration of the site, followed by a panel discussion on land contract
   transparency. *Please see our website here
   <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3cacb0595e&e=dd153d6a25>
for
   more details.*
   - *On October 8, 2015* at 6:30 pm, CCSI will be hosting the *Attorney
   General of Ecuador, Diego García Carrión*, who will give a presentation
   at Columbia Law School in connection with the launch of a book on the legal
   disputes between Chevron and Ecuador. The event will be followed by a
   reception. *Registration is free, but required. Please rsvp **here
   <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e098151fc5&e=dd153d6a25>.*
   - *On November 10-11, 2015*, CCSI will host the 10th Annual Columbia
   International Investment Conference: “Investment Treaty Reform: Reshaping
   Economic Governance in the Era of Sustainable Development,” at Columbia
   University in New York. In light of the Sustainable Development Goals
   (SDGs) and multilateral efforts to catalyze Financing for Development, this
   year's Conference will look at steps countries have taken to reshape their
   International Investment Agreements (IIAs). *Registration is free, but
   required. Please register here
   <http://columbia.us6.list-manage1.com/track/click?u=ab15cc1d53&id=5f2c5eae5a&e=dd153d6a25>.
Please check our
   website
   <http://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=114b79eab0&e=dd153d6a25>
for
   more information.*

Karl P. Sauvant, Ph.D.
Resident Senior Fellow
Columbia Center on Sustainable Investment
Columbia Law School - Earth Institute
Ph: (212) 854-0689
Fax: (212) 854-7946
*Copyright © 2015 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-manage.com/unsubscribe?u=ab15cc1d53&id=a61bf1d34a&e=dd153d6a25&c=6dffe17501>
update subscription preferences
<http://columbia.us6.list-manage.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.