> View this email in your browser
> <>
> 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:
> <>
> .
> *Columbia FDI Perspectives*
> Perspectives on topical foreign direct investment issues
> Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
> Managing Editor: Riccardo Loschi ([log in to unmask])
> *The Columbia FDI Perspectives are a forum for public debate. The views
> expressed by the authors do not reflect the opinions of CCSI or our
> partners and supporters.*
> No. 324   February 7, 2022
> *An Advisory Centre on International Investment Law: Is perfect the enemy
> of good?*
> <>
> by
> Charlie Garnjana-Goonchorn*
> <#m_-2061195859430887878_m_-1290490359306101005_m_-5288421920115986400_m_1982317947210634846__edn1>
> Any government official having experienced an investor-state
> dispute-settlement (ISDS) case knows the long-lasting pain it causes.
> Likely, many of those from developing countries also felt somewhat lost and
> overwhelmed by the lack of know-how. They face an on-going conundrum. In
> their first ISDS case, in-house lawyers realize that they lack adequate
> ISDS skills. External legal counsel is too expensive; but since ISDS cases
> are high profile, funds must somehow be found at great opportunity cost.
> Between cases, the dilemma continues: should developing countries spend
> scarce resources to develop in-house capacity for disputes that may never
> arise, or should external counsel be hired at great cost again?
> In the debate in UNCITRAL’s Working Group III
> <>
> (WGIII) on ISDS reform, delegates agree on the benefits of an Advisory
> Centre on International Investment Law (ACIIL)
> <>
> .[1]
> <#m_-2061195859430887878_m_-1290490359306101005_m_-5288421920115986400_m_1982317947210634846__edn2>
> They include: good legal advice at reasonable cost, pre-, during and
> post-dispute; the training and preparation of in-house lawyers, which also
> helps governments in negotiating dispute-prevention mechanisms in treaties;
> a platform for states to exchange experience on ISDS and related matters;
> and the legitimacy of “branded” legal advice at reasonable cost,
> facilitating officials to explain to their superiors and the public the
> reasons for actions that need to be taken—which makes it easier for states
> that have lost cases to accept ISDS in future treaties. Accessibility to
> legal advice is the backbone of an equitable and legitimate ISDS regime.
> Despite the apparent benefits of an ACIIL, establishing it is a complex
> task
> <>.
> In the WGIII negotiations, there is a danger of lack of progress. Too
> little debate, and the ACIIL does not materialize. Too much debate, and the
> process gets bogged down at the risk of many countries losing interest. A
> guiding balance should be struck as soon as possible.
> Within the framework of ISDS reform options, the opportunity to establish
> an ACIIL is unique because it can be done independently from taking other
> decisions. With a little political will, acceptance and compromise, the
> ACIIL could start functioning relatively soon, perhaps in two-to-three
> years. It could begin modest and grow at a later stage.
> For the ACIIL to start, WGIII should address the following issues:
>    - *Scope of services*. The services provided must be limited at first:
>    fewer services, fewer complications. The ACIIL can give advice (both
>    pre-dispute and their early stages); represent countries in a limited
>    number of ISDS cases; train government officials; and act as a platform for
>    its developed and developing country members to exchange experience. It can
>    provide access to external counsel for litigation services that it cannot
>    deliver with its limited resources, on the basis of a roster of counsel
>    prepared to work for the ACIIL at preferential rates.
>    - *Beneficiaries*. Developing countries—especially the least developed
>    countries—should be the first beneficiaries. Providing services to
>    SMEs—which are often also under-resourced—should be dealt with separately,
>    as this would otherwise give rise to complications and
>    conflicts-of-interest issues for the ACIIL. Discussions of this matter
>    should be left to a later stage.
>    - *Possible legal structure and funding*. Though an independent and
>    treaty-based organization would be the ideal solution for many countries,
>    limited services could be initially provided by attaching the ACIIL to an
>    international organization with expertise in the investment law area.
>    Countries in a position to do so, and foundations, could contribute to the
>    project, complemented by a tiered-fees arrangement based on the income of
>    each country, similar to that of the WTO’s Advisory Centre on WTO Law
>    <>
>    .
> Once in operation, states can decide if the Centre should be scaled up.
> The EU has proposed an ACIIL as part of a comprehensive ISDS reform
> package, including a new Multilateral Investment Court
> <>
> (MIC). This approach, however, faces a controversial debate. Combining the
> MIC and the ACIIL over-complicates the process and denies the long-awaited
> benefits of an ACIIL to many developing countries. It would therefore be
> undesirable to make the ACIIL’s establishment dependent on any other
> actions. Recent progress on the Code of Conduct shows that WGIII can
> prioritize issues if it so chooses. Progress on an ACIIL will facilitate
> timely access to affordable legal advice, strengthen the legitimacy of the
> international investment regime and generate good will for UNCITRAL’s WGIII
> negotiations. If and when the establishment of the MIC were successful, the
> two could be joined if states so wished.
> Kick-starting a modest ACIIL now would sow the seeds for a more full-scale
> ACIIL in the future. Some might want to discuss this matter until a perfect
> way forward has been found—but, if past repeated failed attempts were to be
> a lesson, the perfect should not be the enemy of the good. Establishing an
> ACIIL now is a deliverable that can be done in short time—it is a win-win
> option for the international community.
> ------------------------------
> *
> <#m_-2061195859430887878_m_-1290490359306101005_m_-5288421920115986400_m_1982317947210634846__ednref1>
> Charlie Garnjana-Goonchorn ([log in to unmask]) is Deputy
> Consul-General, Royal Thai Consulate-General, Sydney, and an international
> lawyer at the Ministry of Foreign Affairs of Thailand involved in the
> UNCITRAL’s WGIII negotiations. The opinion expressed in this *Perspective*
> is solely that of the author and does not reflect the position of the Royal
> Thai Government. The author wishes to thank Abdou El Azizi, Meg Kinnear and
> two anonymous reviewers for their helpful peer reviews.
> [1] For a full discussion, including on issues such as funding, see, Karl
> P. Sauvant, “An Advisory Centre on International Investment Law: Key
> features”, University of St. Thomas Law Journal, vol. 17 (April 2021)
> <>,
> pp. 354-372.
> *The material in this Perspective may be reprinted if accompanied by the
> following acknowledgment: “*Charlie Garnjana-Goonchorn*, ‘An Advisory
> Centre on International Investment Law: Is perfect the enemy of good?,’
> Columbia FDI Perspectives No. 324, February 7, 2022. Reprinted with
> permission from the Columbia Center on Sustainable Investment (*
> **
> <>*).”
> 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]; Luca Jobbagy,
> [log in to unmask]
> *Most recent Columbia FDI Perspectives*
> <>
>    - No. 323, Julien Chaisse, “FDI and sustainable development in the
>    EU-China investment treaty: Neither high nor low, just realistic
>    expectations,” Columbia FDI Perspectives, January 24, 2022
>    - No. 322, Mohammad Saeed, “Implementing an Investment Facilitation
>    Framework for Development: Lessons from the Trade Facilitation Agreement,”
>    Columbia FDI Perspectives, January 10, 2022
>    - No 321, Peter Muchlinski, “Promoting responsible business through
>    the revised ILO Tripartite Declaration,” Columbia FDI Perspectives,
>    December 27, 2021
> *All previous FDI Perspectives are available at
> <>*
> .
> *Other relevant CCSI news and announcements*
>    -
>    CCSI's 2022 *Executive Training Program on Extractive Industries and
>    Sustainable Development* will take place online from June 6-17, 2022.
>    The program is designed to equip participants with the necessary skills to
>    promote the responsible development of the extractive industries sector in
>    resource-rich developing countries and to encourage a rich dialogue about
>    best practices from around the globe. The two-week training emphasizes the
>    interdisciplinary nature of resource-based development. By working through
>    real case studies and with practitioners and experts in the field,
>    participants will be able to apply analytical tools and frameworks to the
>    unique context of the extractive industries in their country. For more
>    information, and to apply by March 31, 2022, visit our website
>    <>
>    .
>    - CCSI's 2022 *Executive Training Program on Sustainable Investments
>    in Agriculture* will take place online from May 3-13, 2022. The
>    training provides an interdisciplinary approach to addressing the
>    challenges and opportunities of agricultural investments. The program is
>    designed to equip participants with the necessary knowledge and skills to
>    address some of the key challenges posed by international investments in
>    agriculture, and to encourage a rich dialogue about practices from around
>    the globe. Applications will be considered on a rolling basis until March
>    31, 2022. For more information, and to apply, visit our website
>    <>
>    .
>    - *The 2020 edition of The Yearbook on International Investment Law
>    and Policy
>    <>
>    *(edited by CCSI's Lisa Sachs, Lise Johnson, and Jesse Coleman) is now
>    available online
>    <>
>    and in hard copy
>    <>.
>    The 2020 edition includes policy, thematic and regional developments from
>    2020 in investment law and policy, including the impacts of the COVID-19
>    pandemic on investment flows and governance.
> 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 © 2022 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
> <>
> unsubscribe from this list
> <>
> update subscription preferences
> <>
> [image: Email Marketing Powered by Mailchimp]
> <>


*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: | t: @CCSI_Columbia

"What foreign investors want: Findings from an investor survey", "Incentivising
Sustainable FDI", "Leveraging Digital FDI for Capacity and
Competitiveness", "Green FDI: Encouraging carbon-neutral investment",
Sustainable Investment to Build Back Better", "Extending International
Legal Aid from Trade to Investment: An Advisory Centre on International
Investment Law", "Increasing Transparency in Investment Facilitation:
Focussed Support is Needed", *Investment Facilitation for Development: A
Toolkit for Policymakers*, "More Attention to Policies! Improving the
Distribution of FDI Benefits. The Need for Policy-oriented Research, Advice
and Advocacy", "More and Better Investment Now!", "Facilitating Sustainable
FDI in a WTO Investment Facilitation Framework: Four Concrete
Proposals", "Multinational
Enterprises and the Global Investment Regime: Toward Balancing Rights and
Responsibilities”, "An Inventory of Concrete Measures to Facilitate the
Flow of Sustainable FDI: What? Why? How?", are available at .

AIB-L is brought to you by the Academy of International Business.
For information:
To post message: [log in to unmask]
For assistance:  [log in to unmask]
AIB-L is a moderated list.