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View this email in your browser <https://mailchi.mp/law/perspective-248?e=763bcf158c> 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. *Columbia FDI Perspectives* Perspectives on topical foreign direct investment issues No. 248 March 25, 2019 Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Marion A. Creach ([log in to unmask]) *Investment dispute settlement à la carte within a multilateral institution: A path forward for the UNCITRAL process?* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=bf07380a1d&e=763bcf158c> * <#m_-540980756250763295__edn1> by Stephan W. Schill and Geraldo Vidigal** <#m_-540980756250763295__edn2> In November 2018, the consensus that investor-state dispute settlement (ISDS) needs to be reformed received multilateral imprint: UNCITRAL’s Working Group III agreed that reform is “desirable” with respect to (1) consistency, coherence, predictability, and correctness of arbitral rulings; (2) independence, impartiality and diversity of decision-makers; and (3) costs and duration of proceedings.[1] <#m_-540980756250763295__edn3> Recent investment agreements entered into by key international actors demonstrate a willingness to advance along the same lines. The Comprehensive and Progressive Agreement on Trans-Pacific Partnership <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=dcba31889b&e=763bcf158c> (CPTPP) (which succeeded the Trans-Pacific Partnership <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=94a183753b&e=763bcf158c> (TPP) after the US withdrawal), the United States-Mexico-Canada Agreement <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=d45a4b95be&e=763bcf158c> (USMCA), the Comprehensive Economic and Trade Agreement <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=2262094357&e=763bcf158c> (CETA) concluded between the EU and Canada, Brazil’s Cooperation and Investment Facilitation Agreements (CIFAs) <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=d3ea81e74a&e=763bcf158c> ,[2] <#m_-540980756250763295__edn4> and India's 2016 model bilateral investment treaty <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=78ad524345&e=763bcf158c> (BIT), all seek increased transparency, enhanced efficiency and the implementation of mechanisms for more effective state control over substantive rules and their interpretations. However, in relation to dispute-settlement design, these key models diverge starkly. The CPTPP and the USMCA, which texts reflect the US position, retain investor-state arbitration but reform it. The EU is proposing the establishment of a Multilateral Investment Court (MIC) that would replace investment arbitration entirely.[3] <#m_-540980756250763295__edn5> India's model BIT strengthens the role of domestic courts by re-introducing the exhaustion of local remedies rule. Finally, Brazil's CIFAs feature inter-state adjudication rather than ISDS. It is of course tempting to seek multilateral consensus by opening a debate about the pros and cons of each model; in fact, this is what the proponents of each model currently do, within UNCITRAL and beyond. At the same time, it is unlikely that one model will find universal support, as the different positions on investment dispute-settlement design reflect largely entrenched political stances. The predictable outcome of every party sticking to its own model—institutional fragmentation—threatens the achievement of key objectives of the current reform process, in particular the aim to enhance consistency, coherence and predictability. Therefore, the question arises whether the Gordian Knot can be cut, and the mutually incompatible dispute-settlement design models reconciled. We propose adding to UNCITRAL’s agenda discussions on the establishment of a Multilateral Institution for Dispute Settlement on Investment (MIDSI), which could provide an umbrella for “dispute settlement à la carte”. Building on the idea of an “open architecture”[4] <#m_-540980756250763295__edn6> and the approach to dispute settlement under the United Nations Convention on the Law of Sea,[5] <#m_-540980756250763295__edn7> a MIDSI would not feature compulsory jurisdiction, but would rather allow states and organizations to opt into the dispute-settlement mechanism of their choice. Apart from administering inter-state and investor-state arbitrations, the MIDSI would also encompass, as one of its pillars, the proposed MIC. On an opt-in basis, the MIC could perform different roles for different states, serving as a fully-fledged two-tiered investment court for some and as an appeals body or annulment institution for others. Even for those that do not opt to use it for adjudication, the MIC could carry out such procedural functions as deciding on challenges to arbitrators or rendering provisional measures before an arbitral tribunal is constituted. Finally, the MIC could perform “systemic” functions that are currently absent in investment dispute settlement, such as issuing advisory opinions or rulings on preliminary references by arbitral tribunals or even national courts, thus providing clarity on specific points of interpretation and resolving inconsistencies that have arisen under the current system. The MIDSI, of which the MIC is part, could also serve as a forum for future investment treaty negotiations. While at the outset it could be expected that the law applicable to investment disputes would remain fragmented, over time states could use the MIDSI to collectively develop new rules, addressing for example standards of protection or investor obligations. A key challenge in reforming investment dispute settlement is to prevent the divergent models and proposals currently being floated from leading to a fragmented system. The establishment of a MIDSI would address that risk. It would provide a solution for disagreements on dispute-settlement design by establishing an institutional framework within which participants can agree to disagree—and still effectively cooperate multilaterally in settling investment disputes and shaping the future of the international investment regime. Such an institutional framework would not only promote procedural convergence in investment dispute settlement, but could also provide states with a long-term tool for building a comprehensive investment governance system, including substantive matters. While details of organizational structure, mandate, competence, and relations to existing institutions, including the International Centre for Settlement of Investment Disputes or the Permanent Court of Arbitration, would need to be negotiated, establishing a MIDSI would create a structure for consensus-building, adjudication and negotiation at the multilateral level and reassure states that they remain sovereign to decide on their preferred model for settling investment disputes. ------------------------------ * <#m_-540980756250763295__ednref1> *The Columbia FDI Perspectives are a forum for public debate. The views expressed by the author(s) do not reflect the opinions of CCSI or Columbia University or our partners and supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.* ** <#m_-540980756250763295__ednref2> Stephan W. Schill ([log in to unmask]) and Geraldo Vidigal ([log in to unmask]) are, respectively, Professor and Assistant Professor at the University of Amsterdam. This *Perspective *draws on ideas presented in Stephan W. Schill and Geraldo Vidigal, “Cutting the Gordian Knot: Investment dispute settlement à la carte,” *RTA Exchan*ge (Geneva: ICTSD, 2018) <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b2c07342c1&e=763bcf158c>. The authors are grateful to Jan Paulsson, Anthea Roberts and Giorgio Sacerdoti for their helpful peer reviews. [1] <#m_-540980756250763295__ednref3> UNCITRAL, “Draft report of Working Group III (investor-state dispute settlement reform) on the work of its thirty-sixth session,” A/CN.9/964, November 6, 2018 <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=049738ee7b&e=763bcf158c> . [2] <#m_-540980756250763295__ednref4> A list of CIFAs signed so far is available at https://investmentpolicyhub.unctad.org/IIA/CountryBits/27#iiaInnerMenu. [3] <#m_-540980756250763295__ednref5> See “Submission of the European Union and its Members States to UNCITRAL Working Group III” (18 January 2019) <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=28c92714e6&e=763bcf158c> . [4] <#m_-540980756250763295__ednref6> Ibid,, para. 39. [5] <#m_-540980756250763295__ednref7> United Nations Convention on the Law of Sea, Part XV <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=7fbf35d04a&e=763bcf158c> . *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Stephan W. Schill and Geraldo Vidigal, ‘Investment dispute settlement à la carte within a multilateral institution: A path forward for the UNCITRAL process?,’ Columbia FDI Perspectives, No. 248, March 25, 2019. 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, Marion A. Creach, [log in to unmask] *Most recent Columbia FDI Perspectives* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3097b2dd51&e=763bcf158c> - No. 247, Karl P. Sauvant, “The state of the international investment law and policy regime,” March 11, 2019 - No. 246, Joachim Pohl, “Is international investment threatening or under threat?,” February 25, 2019 - No. 245, Carlos Esplugues, “A future European FDI screening system: solution or problem?,” February 11, 2019 *All previous FDI Perspectives are available at **http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/ <http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/>**. * *Other relevant CCSI news and announcements* - CCSI is hiring a new *Special Assistant to the Director* to begin in late spring/early summer 2019. *To apply for the position, please see our website here <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=a28c7de728&e=763bcf158c> for more information.* - *In February 2019*, CCSI released a new Emerging Market Global Players (EMGP) Report: Uncertain Expectations of Mexican-American Economic and Trade Relations and Slowdown of Overall Mexican FDI <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=989fe8c80c&e=763bcf158c>. The EMGP project, a collaborative effort led by CCSI, brings together researchers on FDI from leading institutions in emerging markets to gather original data from company surveys and additional research and to produce annual reports based on their findings. - *In January 2019*, CCSI submitted comments to the Drafting Team <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=46e757bc49&e=763bcf158c> of the Hague Rules on Business and Human Rights Arbitration 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 © 2019 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 <https://columbia.us6.list-manage.com/vcard?u=ab15cc1d53&id=a61bf1d34a> unsubscribe from this list <https://columbia.us6.list-manage.com/unsubscribe?u=ab15cc1d53&id=a61bf1d34a&e=763bcf158c&c=db04ff9a4d> update subscription preferences <https://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=763bcf158c> [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> ------------------------------ Spam <https://antispam.law.columbia.edu/canit/b.php?c=s&i=01XQkS8Hp&m=7c458771a24f&t=20190325> Not spam <https://antispam.law.columbia.edu/canit/b.php?c=n&i=01XQkS8Hp&m=7c458771a24f&t=20190325> Forget previous vote <https://antispam.law.columbia.edu/canit/b.php?c=f&i=01XQkS8Hp&m=7c458771a24f&t=20190325> -- *Karl P. 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When?", "Beware of FDI Statistics!", "Towards an Indicative List of FDI Sustainability Characteristics", "The Next Step in Governance: The Need for Global Micro-regulatory Frameworks", and "The Evolving International Investment Law and Policy Regime: Ways Forward" *are* available at https://ssrn.com/author=2461782 and http://www.works.bepress.com/karl_sauvant/. ____ 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.