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View this email in your browser <https://mailchi.mp/law/perspective-380?e=dd153d6a25> 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=1ee9578172&e=dd153d6a25> . *Columbia FDI Perspectives* Perspectives on topical foreign direct investment issues Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Chioma Menankiti ([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. 380 April 1, 2024 *Helping ensure respect for the SDGs under bilateral investment treaties:* *the case of human rights* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4d6b239343&e=dd153d6a25> by John Gaffney* <#m_-3595488770900827781__edn1> The 2030 Agenda for Sustainable Development, established to end extreme poverty, includes 17 Sustainable Development Goals (SDGs) to tackle inequality and injustice and safeguard against climate change. The SDGs are complemented <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=106413aac2&e=dd153d6a25> by 169 targets that also reflect international human rights standards. While the SDGs are not legally binding, governments are expected to take steps to implement them. Moreover, the SDGs assume the participation of business to support the achievement of the goals. An earlier *Perspective* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=89b348f3a4&e=dd153d6a25> proposed that governments could comply with the UN Guiding Principles <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b22e9a0c82&e=dd153d6a25> on Business and Human Rights by ensuring that the victims of human rights abuses occurring in the context of business activities could have access to effective remedies in an investment context. That *Perspective* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=ce279bec9d&e=dd153d6a25> suggested merging Gary Born’s bilateral-arbitration-treaty concept <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=a18a619fd0&e=dd153d6a25> (a bilateral treaty providing that all of a particular category of commercial disputes between their respective nationals shall be resolved, as a default mechanism, by international commercial arbitration) into bilateral investment treaties (BITs), which enable investors to arbitrate their investment disputes with host countries without a traditional arbitration agreement contained in an underlying commercial contract (known as “arbitration without privity <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=55afc54f84&e=dd153d6a25> ”). This *Perspective* suggests that there is no reason in principle why this concept of “arbitration without privity” could not be utilized in future BITs to ensure respect for SDGs. Utilizing this concept by analogy with the bilateral-arbitration-treaty <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=6c4a4e1ed2&e=dd153d6a25> concept would be in line with the contracting States’ commitments under SDG 16.3 <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e23c457a1e&e=dd153d6a25>, “[p]romote the rule of law at the national and international levels and ensure equal access to justice” <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=37ef25004a&e=dd153d6a25> for host State individuals and communities impacted by investment in host States and would thereby facilitate peaceful transitions to sustainable development in those countries.[1] <#m_-3595488770900827781__edn2> And in line with SDG 17 <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=b3685dbcef&e=dd153d6a25>—which provides for the strengthening of “the means of implementation and revitaliz[ing] the global partnership for sustainable development”—te bilateral-arbitration-treaty concept could be adapted to help promote the implementation of the SDGs by requiring future BITs[2] <#m_-3595488770900827781__edn3> to: 1. Oblige a home countries’ investors to respect specified human rights standards (including the right to development), as reflected in the relevant SDG targets, in connection with their FDI in host countries. 2. Provide that claims by a host country’s nationals relating to alleged failures to respect those human rights standards by a home country’s investors in their FDI activities shall be resolved by arbitration pursuant to specified procedural rules <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=8683879e3d&e=dd153d6a25> .[3] <#m_-3595488770900827781__edn4> 3. Condition a host country’s standing consent to the arbitration of investor-State claims on the existence, and functioning, of the mechanism referred to in (b) above. The consequences of the foregoing provisions would vary. Under (a) above, the host State would, in principle, be entitled to advance a counterclaim in any investor-State proceedings initiated by an investor under the BIT where the investor failed to respect the relevant, specified human rights standards in connection with their FDI in the host country. Under (b) above, claims by a host State’s nationals relating to alleged failures to respect those human rights standards by the home State’s investors in their FDI activities would, in contrast to (a), not be advanced in investor-State proceedings. Rather, they would be resolved by arbitration. Hence, as has been suggested in an earlier *Perspective* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e63d6974c9&e=dd153d6a25>, claims under (b) would not directly involve the contracting States, consistent with the bilateral-arbitration-treaty concept above. The consequences of (c), which would hinge on the existence, and functioning, of the mechanism referenced in (b), would be felt in investor-State proceedings, such that the absence of the mechanism referenced in (b) would curtail or quash the jurisdiction of an investor-State tribunal over claims advanced by a home State investor under the BIT, for want of consent by the host State to the arbitration of investor-State claims (except where this was attributable to an act or omission of the host State). The establishment by the home country of its investors’ standing constructive consent to international arbitration for the resolution of human rights claims by a host country’s nationals in connection with their investments in the host country—in consideration of the host country’s standing consent to arbitration of investor-State claims—would thus contribute to the implementation of the SDGs. It would also help minimize any negative impact that FDI might have on sustainable development and on the enjoyment by local communities of their rights. ------------------------------ * <#m_-3595488770900827781__ednref1> John Gaffney ([log in to unmask]) is an Adjunct Professor at UCC School of Law. The author wishes to thank Kabir A.N. Duggal, Catharine Titi and an anonymous peer reviewer for their helpful peer reviews. [1] <#m_-3595488770900827781__ednref2> To ensure respect of SDGs, some BITs and other IIAs include binding CSR provisions and limit protection to investment projects aligned with SDGs. [2] <#m_-3595488770900827781__ednref3> See also the recommendations in UN document A/76/238, “Report on Human rights-compatible International Investment Agreements (IIAs)” by Surya Deva <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=17f7042aed&e=dd153d6a25> . [3] <#m_-3595488770900827781__ednref4> The revised 2010 UNCITRAL Arbitration Rules <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=e22165902e&e=dd153d6a25> could serve as suitable procedural rules and the PCA could serve as an administering institution. *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “John Gaffney,** ‘**Helping ensure respect for the SDGs under bilateral investment treaties: the case of human rights**’ Columbia FDI Perspectives, No. 380, April 1, 2024. 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=614bfad45a&e=dd153d6a25>*).” 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, Chioma Menankiti, [log in to unmask] *Most recent Columbia FDI Perspectives* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=cd6f4a4636&e=dd153d6a25> - No. 379, Joshua Paine and Elizabeth Sheargold, ‘Facilitating climate friendly FDI: the importance of ongoing cooperation <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=582e8bcac0&e=dd153d6a25>,’ *Columbia FDI Perspectives*, March 18, 2024 - No. 378, Rob Van Tulder, ‘“Strategy changes, principles remain”: why policy makers should stay focused on the SDGs <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=ff391b4e6e&e=dd153d6a25>,’ March 4, 2024 - No. 377, Diora Ziyaeva and Cody Antony, ‘Deep Seabed Mining in International Waters <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=cce79b87bb&e=dd153d6a25>,’ Columbia FDI Perspectives, February 19, 2024 *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=4b48475123&e=dd153d6a25>* . *Other relevant CCSI news and announcements**:* - *Applications are still open* for our virtual 2024 Executive Training Program on Sustainable Investments in Agriculture <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4bc8c7e44e&e=dd153d6a25>, which will be held from *May 7 to 17*. 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 April 5, 2024*. *For more information, and to apply, visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=98fcfeb21c&e=dd153d6a25>.* - *Apply by April 30th* for our virtual 2024 Executive Training on Extractive Industries and Sustainable Development <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=1d0db260a1&e=dd153d6a25> to be held *June 3 to 14. *The two-week training emphasizes the interdisciplinary nature of resource-based development. By working through 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, visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4530263fad&e=dd153d6a25>.* - *Applications are open* for our annual Executive Training on Investment Treaties and Arbitration for Government Officials <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=c74154cb66&e=dd153d6a25>, which will be held virtually from *September 9 to 13, 2024*. This course is designed for government officials facing complex and pressing issues relating to international investment treaties, including the consideration of unilateral and multilateral reform options. *Visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=ce498fa03c&e=dd153d6a25> for more information and to apply by July 15, 2024!* Applications are reviewed on a rolling basis. - *Enroll now for free:* CCSI's Massive Open Online Course (MOOC) on Mining and Materials for Sustainable Development Transformations <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=88311eb7de&e=dd153d6a25> will address challenges and opportunities for mining and materials value chains in the energy and digital transitions. *Visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=7c6534e664&e=dd153d6a25> to learn more and enroll*. Karl P. Sauvant, Ph.D. Senior Fellow Columbia Center on Sustainable Investment Columbia Law School - Columbia Climate School *Copyright © 2024 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&t=b&e=dd153d6a25&c=53499df3b8> update subscription preferences <https://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=dd153d6a25&c=53499df3b8> [image: Email Marketing Powered by Mailchimp] <https://login.mailchimp.com/signup/email-referral/?aid=ab15cc1d53> -- *Karl P. 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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> "The WTO's FDI Challenge <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4735932>", "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=4386436>", *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>", "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>" (third edition) 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 . 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