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  • Author: Gus Van Harten
  • Publication Date: 12-2013
  • Content Type: Policy Brief
  • Institution: Columbia Center on Sustainable Investment
  • Abstract: Investment treaty arbitration has unfolded rapidly in recent years. Some observations arising from analyses of arbitrator awards are high lighted below. They support broad conclusions that: arbitrators reviewed a wide range of legislative, executive and judicial decisions but typically did not exercise judicial restraint in various ways associated with domestic and international courts; arbitrators typically adopted expansive approaches to their authority and to investor entitlements to compensation, especially where the claimant had the nationality of a major Western capital-exporting state; and decision-making power was highly concentrated amongarbitrators, suggesting a need for closer scrutiny of how the most active individual arbitrators have expanded the meaning of investment treaties and corresponding principles of state liability.
  • Topic: Economics, International Trade and Finance, Markets, Treaties and Agreements, Foreign Direct Investment, Law Enforcement, Law
  • Author: Xavier Carim
  • Publication Date: 11-2013
  • Content Type: Policy Brief
  • Institution: Columbia Center on Sustainable Investment
  • Abstract: Proponents tend to argue that bilateral investment treaties (BITs) encourage investment and strengthen the rule of law particularly in jurisdictions where court systems are weak or biased against foreigners. This premise is contested. First, studies on BITs and FDI suggest the relationship is, at best, ambiguous and that BITs are neither necessary nor sufficient to attract FDI. Indeed, South Africa receives FDI from investors in countries with whom it has no BIT and often little or no FDI from others where a BIT was in place.
  • Topic: Security, Economics, Emerging Markets, International Trade and Finance, Treaties and Agreements
  • Political Geography: Africa, South Africa
  • Author: Clint Peinhardt, Todd Allee
  • Publication Date: 02-2012
  • Content Type: Policy Brief
  • Institution: Columbia Center on Sustainable Investment
  • Abstract: The proliferation of investment treaties is perhaps exceeded only by academic studies of those treaties. Legal scholarship has long been attentive to the evolution in international investment agreement (IIA) content -- but until recently, quantitative assessments of IIAs have tended to treat them as interchangeable: the only measure of investor protections encoded in IIAs is whether a treaty had been signed and/or entered into force. Thankfully, the United Nations Conference on Trade and Development has been at the forefront of capturing not just IIAs' proliferation but also the evolution in their content. Its work shows that treaties apply for differing durations, have conflicting procedures for termination and include varying definitions of even basic terms, such as “investors” and “investment.” Other quantitative studies have begun to measure these variations, focusing initially on differences in dispute resolution. 1 Some IIAs demand that investors choose between domestic and international dispute resolution; some provide explicit consent of both parties to international arbitration; and some designate a particular forum for arbitration, whereas others specify multiple options. Of course, IIAs vary across many dimensions, but our initial examination of dispute resolution provisions alone demonstrates the importance of examining IIA content.
  • Topic: Economics, International Trade and Finance, Markets, Treaties and Agreements, Foreign Direct Investment
  • Political Geography: United Nations
  • Author: Karl P. Sauvant, Huiping Chen
  • Publication Date: 12-2012
  • Content Type: Policy Brief
  • Institution: Columbia Center on Sustainable Investment
  • Abstract: China is the largest foreign direct investment (FDI) host and home country among emerging markets, the United States among developed countries. As host countries, both seek to maintain policy space to pursue their own legitimate public policy objectives; as home countries, both seek to protect their investors' outward FDI. The development of their bilateral investment treaties (BITs) over the past decade reflects this: Chinese BITs have become more protective of investors, US ones more respectful of host country interests. If agreement is reached between both, it would provide a template for future investment agreements.
  • Topic: Economics, Emerging Markets, Treaties and Agreements, Foreign Direct Investment
  • Political Geography: United States, China