View this email in your browser <https://mailchi.mp/law/perspective-286?e=5eb397be70> 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. <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=dc2de8ae8d&e=5eb397be70> *Columbia FDI Perspectives* Perspectives on topical foreign direct investment issues No. 286 September 7, 2020 Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Riccardo Loschi ([log in to unmask]) *Insulating a WTO Investment Facilitation Framework from ISDS* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=c6af321a35&e=5eb397be70> * <#m_-2080039215029770919__edn1> by George A. Bermann, N. Jansen Calamita, Manjiao Chi, and Karl P. Sauvant** <#m_-2080039215029770919__edn2> Over 100 WTO members are engaged in Structured Discussions aimed at a multilateral framework on investment facilitation for development (Framework). The Framework (meant to be a WTO agreement) seeks to facilitate investment flows by creating legal obligations for states regarding (among other things) enhanced transparency and predictability of investment-facilitation measures and regulations, improved efficiency and speed of administrative procedures, and the establishment of related ombudsperson-type mechanisms. It is our understanding that, in negotiating this agreement, negotiators intend to create binding disciplines for states, but not to confer enforceable rights on private parties. This raises the issue of the Framework’s potential interaction with obligations contained in international investment agreements (IIAs), especially in the context of investor-state dispute settlement (ISDS). In particular, could ISDS litigants and arbitrators rely on the Framework’s disciplines to add elements to the fair-and-equitable-treatment (FET) standard, claim breaches of umbrella clauses, or directly incorporate the Framework’s disciplines via most-favored-nation (MFN) clauses? How can the risk be reduced that the Framework’s obligations will be invoked by private parties in investment-treaty disputes? A future Framework can be expected—and needs to state expressly—that it does not cover “market access, the treatment and protection of investment or investors, and ISDS.” <#m_-2080039215029770919__edn3> But more needs to be done to ensure that Framework and IIA obligations remain insulated from one another. Specifically, negotiators should consider several treaty-interface clauses: First, an explicit limitation of the scope of the Framework’s obligations, to prevent a breach of the Framework from being treated also as a breach of IIA provisions: “A determination that there has been a breach of this Framework shall not establish the breach of any rules on investment protection or investor-state dispute settlement.” <#m_-2080039215029770919__edn4> Second, a limitation on MFN treatment, stating that MFN obligations only extend to actual “treatment”, and that the Framework’s obligations do not in themselves constitute “treatment”: “For greater certainty, obligations arising from other treaties do not in themselves constitute ‘treatment’ and thus are excluded for the purpose of assessing a breach of this Article. Conversely, only measures adopted by a Member pursuant to those obligations shall be considered ‘treatment’. Furthermore, the obligations in this Framework shall not constitute ‘treatment’ under any other treaty.” <#m_-2080039215029770919__edn5> Third, a provision addressing the Framework’s use as a tool of interpretation, expressly stating its inapplicability to the interpretation of IIAs: “This Framework cannot and shall not serve as a means to interpret any rules on investment protection or investor-state dispute settlement.” As these provisions would be binding among the parties to the Framework, their effectiveness would be assured in IIA-based disputes in which investors’ and respondents’ states are both parties to the Framework. With more than 100 WTO members in the Structured Discussions (and more members joining), the overlap between Framework parties and IIA parties could be sizeable, depending upon how many members decide to adhere (and how quickly). What about ISDS disputes brought by investors from non-adhering WTO members against adhering WTO members? To the extent that litigants may seek to use MFN clauses to import Framework obligations into IIAs, most IIAs exempt economic integration agreements (such as regional free trade agreements) from the MFN obligation. Depending upon the exact wording of the MFN clause, it is possible, though not without doubt, that arbitral tribunals might find that the Framework is excluded on this basis. In other cases in this situation, however, in which MFN clauses are broader or investors attempt to use the Framework to supplement an umbrella or open-ended FET clause, members can add the language below to make clear that the Framework does not create rights for third states or their investors: “The Framework does not create rights for states that are not parties to it or for investors and investments originating from such states (or having the nationality of such states).” Finally, to address the potential use of the Framework in IIA-based cases, whether as a predicate to a claim or as interpretive support for one, members can clarify that the jurisdiction to interpret and apply the Framework is specifically limited, stating that: “The Dispute Settlement Body shall have exclusive jurisdiction to interpret and apply the Framework.” <#m_-2080039215029770919__edn6> Unintended and unwanted interaction between a Framework and IIAs is possible. WTO negotiators should therefore seriously consider including provisions along these lines in a Framework to insulate it from being imported into investor-state disputes. ------------------------------ * <#m_-2080039215029770919__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_-2080039215029770919__ednref2> George A. Bermann ( [log in to unmask]) is Professor of Law and Director, Center for International Commercial and Investment Arbitration, Columbia Law School; N. Jansen Calamita ([log in to unmask]) is Head, Investment Law & Policy, Centre for International Law, and Research Associate Professor (CIL), Faculty of Law, National University of Singapore; Manjiao Chi ( [log in to unmask]) is Professor and Founding Director of the Center for International Economic Law and Policy/CIEPL, Law School, University of International Business and Economics/UIBE; Karl P. Sauvant ( [log in to unmask]) is Resident Senior Fellow, Columbia Center on Sustainable Investment, a joint center of Columbia Law School and the Earth Institute, Columbia University. This *Perspective *benefitted from discussions in the ITC/DIE Expert Network on a Multilateral Framework on Investment Facilitation for Development. The authors are grateful to Evan Gabor for his research assistance and to Makane Moïse Mbengue, Stefan Schill and Christoph Schreuer for their helpful peer reviews.  <#m_-2080039215029770919__ednref3> A similar statement is provided by the Joint Ministerial Statement on Investment Facilitation for Development <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=f8366f5e4f&e=5eb397be70>, para. 4.  <#m_-2080039215029770919__ednref4> Comprehensive and Progressive Trans-Pacific Partnership <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e6e1afa530&e=5eb397be70> (2019), art. 9.3.  <#m_-2080039215029770919__ednref5> EU-Viet Nam Investment Protection Agreement <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=fdad347e88&e=5eb397be70> (2020), art. 2.4(5).  <#m_-2080039215029770919__ednref6> Similar language has been proposed by the EU. *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “George A. Bermann, N. Jansen Calamita, Manjiao Chi, and Karl P. Sauvant, ‘Insulating a WTO Investment Facilitation Framework from ISDS,’ Columbia FDI Perspectives, No. 286, September 7, 2020. Reprinted with permission from the Columbia Center on Sustainable Investment (**www.ccsi.columbia.edu* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b3015ba34f&e=5eb397be70>*).” 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, Riccardo Loschi, [log in to unmask] *Most recent Columbia FDI Perspectives* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=6a9c5f76c9&e=5eb397be70> - No. 285, Sarah Atkinson and Jessica Hanson, ‘Corporate inversions and FDI in the United States,’ August 24, 2020 - No. 284, Jens Velten, ‘FDI screening regulation and the recent EU guidance: What options do member states have?,’ August 10, 2020 - No. 283, Hetal Doshi and Sankalp Udgata, ‘India’s blueprint for tackling opportunistic acquisitions during COVID-19, with Chinese firms in mind,’ July 27, 2020 *All previous FDI Perspectives are available at * *http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3b9249acbd&e=5eb397be70> *. * *Other relevant CCSI news and announcements* - *September 8-11, 2020:* CCSI will host the Global Research Alliance for Sustainable Finance and Investment 3rd Annual Conference <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=d2134c2656&e=5eb397be70> online. Registration <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b132428b2b&e=5eb397be70> is still open. - *September 11, 2020: *CCSI and the World Business Council for Sustainable Development (WBCSD) are hosting the next Food Systems Dialogue <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=0ac69b3b1d&e=5eb397be70> for Investors during the third annual conference of the Global Research Alliance for Sustainable Finance and Investment <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=5f68ace5cd&e=5eb397be70>. This two-hour, invite-only online session will be a discussion among leaders from global food companies and investment firms on food systems policies and practices. *For further information, please contact [log in to unmask] <[log in to unmask]>.* - CCSI and partners call for ISDS moratorium during COVID-19 crisis and response <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e1b27b55a8&e=5eb397be70>. Those who are interested in adding their names to this sign-on can express their interest in doing so here <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=275a12697d&e=5eb397be70> . 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 © 2020 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=5eb397be70&c=cb709ede63> update subscription preferences <https://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=5eb397be70> [image: Email Marketing Powered by Mailchimp] <http://www.mailchimp.com/email-referral/?utm_source=freemium_newsletter&utm_medium=email&utm_campaign=referral_marketing&aid=ab15cc1d53&afl=1> ------------------------------ Spam <https://antispam.law.columbia.edu/canit/b.php?c=s&i=013p22EbB&m=3d6bc28da49e&t=20200907> Not spam <https://antispam.law.columbia.edu/canit/b.php?c=n&i=013p22EbB&m=3d6bc28da49e&t=20200907> Forget previous vote <https://antispam.law.columbia.edu/canit/b.php?c=f&i=013p22EbB&m=3d6bc28da49e&t=20200907> -- *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> "Insulating a WTO Investment Facilitation Framework from ISDS", "A G20 Facility to Rekindle FDI Flows", "Enabling the Full Participation of Developing Countries in Negotiating a WTO Investment Facilitation Framework", "Concrete Measures for a Framework on Investment Facilitation for Development", "Making FDI more Sustainable", "Facilitating Sustainable FDI by...", "An International Framework to Discipline Outward FDI Incentives?", "The Case for an Advisory Centre on International Investment Law", "An Advisory Centre on International Investment Law: Key Features", "Incentivizing Sustainable FDI: The Authorized Sustainable Investor", "The Potential Value-added of a Multilateral Framework on Investment Facilitation for Development", "International Investment Facilitation: By Whom and for What?", "Towards an Investment Facilitation Framework: Why? What? When?" are available at https://ssrn.com/author=2461782 . ____ 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.