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---------- View this email in your browser <https://mailchi.mp/law/perspective-370?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: https://ccsi.columbia.edu/content/columbia-fdi-perspectives <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=3c733d2c6f&e=763bcf158c> . *Columbia FDI Perspectives* Perspectives on topical foreign direct investment issues Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Matthew Conte ([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. 370 November 13, 2023 *Unexpected opportunities to support investor-state dispute prevention through the WTO Investment Facilitation for Development Agreement* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=55189a4b38&e=763bcf158c> by N. Jansen Calamita* <#m_6066366071332254686__edn1> Establishing mechanisms and create tools to promote dispute prevention are an increasing priority for states. That said, states often struggle to develop whole-of-government information regarding the operation of their regulatory systems and the risks of claims that may be raised under their investment protection treaty commitments. This, in turn, undermines the development of effective, evidence-based dispute-prevention mechanisms <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=f1ee0b5cb0&e=763bcf158c>. The recently completed text negotiations <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=ca2b2238f5&e=763bcf158c> of the WTO Investment Facilitation for Development Agreement (IFDA), however, present states with unexpected opportunities to bolster their dispute-prevention efforts. At bottom, the IFDA is about improving administrative due process for FDI in the countries that join the Agreement. Indeed, the stated goal of the IFDA is the establishment of “rules and disciplines on investment facilitation designed to enhance the transparency, efficiency and predictability of the investment regulatory environment” for the purpose of facilitating investment for development.[1] <#m_6066366071332254686__edn2> Regulatory transparency, efficiency and predictability are not the only concern of the IFDA, of course. Similar issues of administrative due process arise in the context of investment-protection treaties, especially with respect to the fair-and-equitable-treatment standard. Such issues include the transparency of procedures and proceedings, clarity of the law and decision making, fair administrative procedures (including the right to be heard and the right to prompt decisions), administrative consistency, and the availability of administrative review. And herein lies an unexpected opportunity. Under the IFDA, each developing and least developed country is expected to conduct a whole-of-government “self-assessment” or “gap analysis” to determine whether it will be able to meet the IFDA’s obligations, or whether it will be necessary to use the IFDA’s “Special and Differential Treatment” provisions and make reforms before taking on certain commitments. To that end, the WTO is preparing a “Self-Assessment Guide” designed to guide countries’ assessments.[2] <#m_6066366071332254686__edn3> While the purpose of the self-assessment process is for countries to identify their compliance levels and technical assistance needs with respect to the IFDA, the information developed through the self-assessment process is not only relevant to the IFDA, but it is also relevant to ISDS dispute prevention. Because of the close conceptual relationship between the commitments contained in the IFDA and many of the obligations under investment-protection treaties, the information that a state develops when assessing the compliance of its current legal processes vis-à-vis the IFDA’s obligations will be simultaneously relevant to an examination of those legal processes through the lens of its investment-protection obligations. As a consequence, even though the self-assessment process has been established for the specific purpose of considering compliance with the IFDA, the self-assessment process presents states with the additional opportunity to better understand the investment treaty risks they face from their administrative processes.[3] <#m_6066366071332254686__edn4> Using the information gathered through the self-assessment process would allow developing and least-developed states to formulate evidence-based dispute-prevention policies, consider possible domestic reforms and consider treaty reforms. That said, even with this information, the effective development and implementation of dispute-prevention mechanisms will remain markedly difficult <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=fe340e749b&e=763bcf158c> for many states. Here again, however, the IFDA may provide an opportunity. Under the IFDA it is contemplated that donor countries will provide support to developing and least-developed countries for implementation and for the self-assessment of their current levels of compliance with the IFDA’s commitments. While the degree of support that is ultimately provided remains to be seen, the synergy between issues relevant to the IFDA and investment treaties creates an opportunity for donor countries to multiply the value of their support by helping to build capacity with respect to ISDS dispute prevention at the same time as they support self-assessments and the implementation of the IFDA. As a result, not only does the IFDA present opportunities for developing and least-developed countries, but it also provides opportunities for donor countries to substantially increase the impact of their contributions.[4] <#m_6066366071332254686__edn5> ------------------------------ * <#m_6066366071332254686__ednref1> 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. The author wishes to thank colleagues at CIL for their valuable comments and Manjiao Chi, Federico Ortino and Rodrigo Polanco for their helpful peer reviews. [1] <#m_6066366071332254686__ednref2> WTO, “Investment Facilitation for Development (IFD) Agreement”, INF/IFD/RD/136, 6 July 2023. The text of the Agreement has not been made public. [2] <#m_6066366071332254686__ednref3> WTO, “Self-Assessment Guide: Draft Sample for Provision 5 of the Easter Text”, INF/IFD/RD/97, 9 March 2022. [3] <#m_6066366071332254686__ednref4> According to a 2016 study <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=d17623d28d&e=763bcf158c> of investor-state treaty disputes, examining 584 arbitration cases from 1990-2014, 61% of cases were triggered primarily by administrative measures. [4] <#m_6066366071332254686__ednref5> It bears noting that the IFDA is specifically drafted to prevent legal interaction among its commitments, investment protection treaties and investor-state dispute settlement. (For a review of the concerns raised by possible interaction, see George A. Berman, N. Jansen Calamita, Manjiao Chi and Karl P. Sauvant <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=214492d308&e=763bcf158c>.) Nevertheless, nothing in the IFDA would prohibit donor states from providing assistance packages to developing and least-developed states that not only address the IFDA, but also other issues like dispute-prevention policy. *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “N. Jansen Calamita, ‘**Unexpected opportunities to support investor-state dispute prevention through the WTO Investment Facilitation for Development Agreement,**’ Columbia FDI Perspectives, No. 370, November 13, 2023. 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=6627c77ea5&e=763bcf158c>*).” 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, Matthew Conte, [log in to unmask] *Most recent Columbia FDI Perspectives* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=444c4cf078&e=763bcf158c> - No. 369, Karl P. Sauvant and Zbigniew Zimny, ‘How to get the best deal for massive FDI incentives <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=784e07f6d9&e=763bcf158c>,’ *Columbia FDI Perspectives*, October 30, 2023 - No. 368, Julien Chaisse, ‘Rethinking umbrella clauses in international investment agreements <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=80cb67c424&e=763bcf158c>,’ *Columbia FDI Perspectives*, October 16, 2023 - No. 367, Brian Egan and Katie Clarke, ‘CFIUS part II? The US moves to restrict outbound FDI to China <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=16725164db&e=763bcf158c>,’ *Columbia FDI Perspectives*, October 2, 2023 *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=83dfed8ede&e=763bcf158c>* . *Other relevant CCSI news and announcements* - *November 28, 2023:* CCSI's Fall 2023 International Investment Law and Policy Speaker Series concludes with a panel on “*The Reform and Role of ISDS in the Legalization and Legitimacy of the Investment Treaty Regime*.” Each session will allow for Q&A and discussion with the panelists. The series is sponsored by Arnold & Porter, with media sponsor TDM. *For more details, and to register, visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b44977f55b&e=763bcf158c>* . - *Applications are now open* for our 2024 virtual Executive Training Program on Sustainable Investments in Agriculture <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=f12439b814&e=763bcf158c>, which will be held from May 7-17, 2024. The interdisciplinary program explores challenges and solutions for advancing sustainable investments in agriculture. It includes asynchronous and synchronous components, including short and interactive live sessions dedicated to engagement with course lecturers and participants from around the world. Applications will be considered on a rolling basis until March 15, 2024. *For more information, and to apply, visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b53ae4079d&e=763bcf158c>.* Karl P. Sauvant, Ph.D. Senior Fellow Columbia Center on Sustainable Investment Columbia Law School - Columbia Climate School *Copyright © 2023 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 - Columbia Climate School, 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=bca592bafb> update subscription preferences <https://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=763bcf158c&c=bca592bafb> [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* *Senior Fellow* *Columbia Center on Sustainable Investment* Columbia Law School, 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> "How to Get the Best Deal for Massive FDI Incentives <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4616026>", "The New WTO Investment Facilitation for Development Agreement <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4531684>", "The Limits of Capacity Building for Investment Contract Negotiations <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4474456>", "Establishing an Advisory Centre on International Investment Law: Key Challenges Ahead <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4389689>", *Investment Facilitation for Development: A Toolkit for Policy Makers. Second Edition <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3830031>,* "Agenda for Practice-oriented Research <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4103768>", "How Would a Future WTO Agreement on Investment Facilitation for Development Encourage Sustainable FDI Flows, and How Could it be Further Strengthened? <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4084032>”, "Green FDI: Encouraging Carbon-neutral Investment <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3943705>", "More Attention to Policies! Improving the Distribution of FDI Benefits <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3818974>", "Facilitating Sustainable FDI in a WTO Investment Facilitation Framework: Four Concrete Proposals <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496967>", "An Inventory of Concrete Measures to Facilitate the Flow of Sustainable FDI: What? Why? How? <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3739179>", 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] --- You must be an active AIB member to post to AIB-L . AIB-L has a moderator which checks messages for basic relevance. However, AIB does not edit or screen messages for accuracy or reliability of content. All subscribers are recommended to perform their own due-diligence before responding to any requests or calls. AIB accepts no liability for the content of this email, or for the consequences of any actions taken on the basis of the information provided.