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> View this email in your browser > <https://mailchi.mp/law/perspective-324?e=138543bdb5> > > 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: > https://ccsi.columbia.edu/content/columbia-fdi-perspectives > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=d8f07397e7&e=138543bdb5> > . > *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?* > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=abf47990a6&e=138543bdb5> > 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 > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=29db90db20&e=138543bdb5> > (WGIII) on ISDS reform, delegates agree on the benefits of an Advisory > Centre on International Investment Law (ACIIL) > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=c4505f109b&e=138543bdb5> > .[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 > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b1206415a2&e=138543bdb5>. > 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 > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=dfabae4e4f&e=138543bdb5> > . > > 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 > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=8f66925c47&e=138543bdb5> > (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) > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=0a0bfd81ac&e=138543bdb5>, > 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 (* > *http://ccsi.columbia.edu* > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3c5079a50e&e=138543bdb5>*).” > 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* > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=03524be9d0&e=138543bdb5> > > > - 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 > https://ccsi.columbia.edu/content/columbia-fdi-perspectives > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3d62863b74&e=138543bdb5>* > . > > *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 > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=552bf89fbb&e=138543bdb5> > . > - 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 > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=974ec45e2b&e=138543bdb5> > . > > > - *The 2020 edition of The Yearbook on International Investment Law > and Policy > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=d23b956623&e=138543bdb5> > *(edited by CCSI's Lisa Sachs, Lise Johnson, and Jesse Coleman) is now > available online > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=98b0f0cfec&e=138543bdb5> > and in hard copy > <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=1a2f948ffe&e=138543bdb5>. > 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 > <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=138543bdb5&c=953d290247> > update subscription preferences > <https://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=138543bdb5&c=953d290247> > > > [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> > -- *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> "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", "Facilitating 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 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.