Yearbook on International Investment Law & Policy 2015-2016

Lisa E. Sachs and Lise Johnson

Yearbook on International Investment Law and Policy

The only annual publication to provide an overview of current developments in the global international investment law and policy field
Provides up-to-date, authoritative information that practitioners can use to understand trends as well as monitor and advise clients regarding FDI regulatory developments
Informs academics, researchers, and government officials of the key issues and debates in their field

New to this Edition:

Analysis of problems that pervade commonly used FDI data and that raise questions about the use of such data to form policy
An in-depth discussion of key developments in investment treaties in an era of rapid and significant change
An overview of important decisions in investment treaty law, covering issues of procedure and substance
New insights and evidence on such issues as the rates of success in investment treaty cases, and the impact of claims on government decision-making
Insights on emerging issues such as how fragmented production and global value chains relate to the definition of covered 'investments' and damages available for harm to those investments

Yearbook on International Investment Law & Policy 2015-2016

Lisa E. Sachs and Lise Johnson

Yearbook on International Investment Law and Policy

Description

The Yearbook on International Investment Law & Policy is an annual publication which provides a comprehensive overview of current developments in the international investment law and policy field, focusing on recent trends and issues in foreign direct investment (FDI), investment treaty practice, and investor-state arbitration.

Several themes emerge in this 2015-2016 edition of the Yearbook. Key among them is the undercurrent of change and evolution in investment law and policy, as well as that of investment trends. Part I of this edition covers fundamental shifts in the investment treaty landscape in 2015 and 2016, underscoring the uncertainty over the direction of future agreements. This edition also highlights changes in the practices of multinational enterprises over time and raises question as to whether efforts to track and understand firms' investments through data on FDI have kept pace. The discussion of investment arbitration decisions and awards highlights outcomes which, in some cases, suggest new directions of arbitral decisions.

This theme continues in Part II. Chapters highlight emerging understandings regarding outcomes of treaty disputes, and the ways in which treaties and decisions are shaping government decision-making. There is discussion on how change in international business, including the fragmentation of production and consumption in global value chains, is or is not reflected in the design and application of investment treaties. There is also coverage of change in China, both in terms of China's legal status as a (non)market economy under WTO law, and in how arbitrators have arguably altered longstanding Chinese policies regarding the territorial reach of Chinese treaties. This edition also reflects a maturation of investment law, as new analysis highlights the importance of nuance in commonly stated conclusions and principles. Chapters ask "what does and should 'equality of the parties' mean in investment law?", especially when disparate access to resources and information seems to tilt the playing field. Other chapters investigate the implications of the fact that states, considered as one entity for the purpose of responsibility at the international level, often are made up of different relatively autonomous units.

Edited by an Editorial Committee and overseen by an Advisory Board of esteemed global experts in the field of international investment law, the Yearbook is an essential tool for practitioners and academics looking for a resource of timely and authoritative information in this field.

Yearbook on International Investment Law & Policy 2015-2016

Lisa E. Sachs and Lise Johnson

Yearbook on International Investment Law and Policy

Table of Cases
Table of Primary Sources
Part I
1. Explaining Global Trends in FDI in 2015 and Beyond, Ilan Strauss
2. International Investment Agreements, 2015-2016: A Review Of Trends And New Approaches, Jesse Coleman, Lisa Sachs, and Lise Johnson
3. Notable Developments in International Investment Arbitration Case Law: 2015-2016, Kendra Magraw
Part II
4. The Outcomes of Investment Treaty Arbitration: A Reassessment, Karen Remmer
5. Multinational Enterprises and Investment Treaties, Mark Feldman
6. Investment Law's Roots in Customary International Law: Why investment law and trade diverge regarding the Right to Regulate, Shu XU, Yingying WU, Henry Hailong JIA
7. Embedding the International Investment Regime: An assessment of UNCTAD's proposal for reform, Jean-Michel Marcoux
8. When Some Are More Equal Than Others: The need for a more substantive conception of 'equality of the parties' in investment arbitration, Eve Bain
9. Federal States and Investment Arbitration, Facundo Perez-Aznar
10. Has China Become 'Legally' a Market-Economy Country on 11 December 2016 under The WTO Antidumping Agreement? Analyzing an open question, Giorgio Sacerdoti
11. Fragrant Harbour and Oyster Mirror: Beijing's investment treaty policy toward Hong Kong and Macao, Chin Leg Lim
12. Investment Treaties and the Internal Vetting of Regulatory Proposals: A Case Study from Canada (Part 2), Gus Van Harten and Dayna Nadine Scott
13. Expropriation in Brazil's Cooperation and Facilitation Investment Agreements: A failed attempt to think outside the box, Ely Caetano Xavier Junior and Jose Augusto Fontoura Costa

Yearbook on International Investment Law & Policy 2015-2016

Lisa E. Sachs and Lise Johnson

Yearbook on International Investment Law and Policy

Author Information

Lisa E. Sachs, Columbia Center on Sustainable Investment,Lise Johnson, Columbia Center on Sustainable Investment

Lisa Sachs is the Director of the Columbia Center on Sustainable Investment (CCSI). Since joining CCSI in 2008, she established and now oversees the three areas of focus for CCSI: investments in extractive industries, investments in land and agriculture, and investment law and policy. She specializes in extractive industries, foreign investment, corporate responsibility, and integrated economic development. She received a B.A. in Economics from Harvard University, and earned her J.D. and an M.A. in International Affairs from Columbia University, where she was a James Kent Scholar and recipient of the Parker School Certificate in International and Comparative Law.

Lise Johnson is the Investment Law and Policy Head at the Columbia Center on Sustainable Investment (CCSI). Her work at CCSI centers on analyzing investment treaties and treatybased investor-state arbitrations, and examining the implications those instruments and cases have for host countries' domestic policies and sustainable development strategies. In addition, she concentrates on key institutional and procedural aspects of the investment law framework, including efforts to increase transparency in and legitimacy of investor-state dispute settlement. She has a B.A. from Yale University, J.D. from University of Arizona, LL.M. from Columbia Law School, and is admitted to the bar in California

Contributors:

Eve Bain is a recent graduate from Victoria University of Wellington, where she received a Bachelor of Arts and a Bachelor of Laws with First Class Honours. She has previously worked for a Member of Parliament in New Zealand and as a law clerk at the New Zealand Law Commission. Eve is currently undertaking further study in Colombia as a Prime Minister's Scholar for Latin America. Her work has also been published in the New Zealand Journal of Public and International Law.

Jesse Coleman is a legal researcher for the Columbia Center on Sustainable Investment (CCSI). Her work at CCSI focuses on investment law and policy, natural resources, and the intersection between human rights and sustainable development. She received her Bachelor of Arts in Political Science and Bachelor of Laws from Trinity College Dublin, and holds a Master of Law from the University of Cambridge, where she specialized in international law. Her research while at Cambridge focused on the interplay between international human rights law and land-based investment. Further information: http://ccsi.columbia.edu/aboutus/staff/.

Mark Feldman is Associate Professor of Law at Peking University School of Transnational Law. He also serves as Global Associate at the National University of Singapore Centre for International Law. He previously served as Chief of NAFTA/CAFTA-DR Arbitration in the Office of the Legal Adviser at the U.S. Department of State. In the private sector, he practiced law for several years at Covington & Burling.

Jose Augusto Fontoura Costa is Professor of International Law at the Law School of the University of Sao Paulo, where he regularly offers courses on comparative law and international trade law. He is also a fellow from the Brazilian National Council for Scientific and Technological Development (CNPq). His research interests are in the area of international investment law, international business law and comparative law. Mr. Fontoura Costa is a qualified lawyer in Brazil and holds a Bachelor and a PhD in Laws from the University of Sao Paulo.

Kanika Gupta is a fellow at the Columbia Center on Sustainable Investment and a lawyer specializing in international investment and trade law and investor-state arbitration. Previously, Kanika worked as a Legal Associate with the International Investment Agreement Division at Ministry of Finance, Government of India, where she worked on drafting and negotiations of Foreign Trade Agreements and Bilateral Investment Treaties and on investor-state arbitrations. As part of Foreign Investment Promotion Board and Foreign Investment Policy division in the Ministry, Kanika provided legal advice on foreign investment approvals and on India's Foreign Direct Investment Policy. Prior to that, Kanika worked as an Associate with the infrastructure and dispute resolution groups at law firms in India. Kanika received her LL.M. degree from Columbia Law School where she was a recipient of Jagdish Bhagwati fellowship for trade and investment. Further information: http://ccsi.columbia.edu/about-us/fellows-interns/

Henry Hailong JIA is the Professor at South China University of Technology Law School. He is also a Ph.D. student at the School of Management and Human Resources, Rutgers University at New Brunswick. He is currently a J.S.D. candidate at college of law of University of Illinois at Champaign-Urbana (on academic leave). He obtained his doctor of law from Tsinghua University Law School. He is a member of member of Guangzhou Bar Association. His research interests include international economic law and international law.

Chin Leng Lim of Keating Chambers, London has been for the past decade Professor of Law at Hong Kong University, and for much of that time was and remains a Visiting Professor at King's College London. He is Choh-Ming Li Professor and Professor of Law-elect at the Chinese University of Hong Kong and sits on a trade and industry department committee which advises the Hong Kong Commerce Secretary. Recent work through Chambers has involved advice and representation in cross-border commercial matters and disputes, particularly in the Far East and Middle East, as well as advice on foreign investment, treaty and other international law matters. He was once a government treaty counsel and worked at UNCC, Geneva. Lim, Ho & Paparinskis, International Investment Law and Arbitration, with a Foreword by Emmanuel Gaillard, will soon appear in print.

Kendra Magraw specializes in international dispute settlement and arbitration, particularly international investment, commercial and sports arbitration, as well as issues related to international trade law and public international law. She has worked in private practice, as well as at the International Centre for Settlement of Investment Disputes (ICSID), the International Investment Agreements Section of the United Nations Conference on Trade and Development (UNCTAD), and the International Court of Justice (ICJ). She has a Masters in International Law from the Graduate Institute of International and Development Studies (IHEID) and a J.D. from the University of Minnesota Law School. She has authored and contributed to numerous publications on international investment law and policy.

Jean-Michel Marcoux holds a BA in Public Affairs and International Relations (Universite Laval), an MA in International Studies (Institut quebecois des hautes etudes internationales) and a PhD in Law (University of Victoria). From 2011 to 2013, he served as a Research Associate in a nationwide program addressing the governance of biotechnology in Canada. He also interned as a Junior Trade Specialist in a private firm in Washington, DC in 2011. Interested in international investment law and international relations theory, his doctoral research focused on the evolving codification of foreign investors' responsibilities by intergovernmental organizations. From 2013 to 2014, Jean-Michel benefited from the financial support of the Fonds de recherche du Quebec - Societe et culture. He was then a recipient of the Joseph-Armand Bombardier Canada Graduate Scholarship Program (2014-2017) and the International Law Research Program Graduate Scholarship of the Centre for International Governance Innovation (2015-2016). Jean-Michel currently serves as a Trade Policy Advisor at the Ministere de l'Economie, de la Science et de l'Innovation in Quebec, Canada.

Facundo Perez-Aznar is senior researcher at the Graduate Institute of International and Development Studies in Geneva and Adjoin Professor of International Economic Law in the Master in International Relations at the University of Buenos Aires. He worked for several years as legal counsel in the Department of International Affairs at the General Attorney's Office of Argentina, which is in charge of handling the interest of Argentina in international disputes (mostly ICSID and UNCITRAL arbitrations) and previously as legal officer in the Directorate of Latin American Economic Integration at the Ministry of Foreign Affairs of Argentina. He holds a law degree from the National University of La Plata, Argentina, and a Master degree and a Ph.D. in international law from the Graduate Institute of International and Development Studies, Geneva.

Karen L. Remmer is professor and former chair of the Department of Political Science at Duke University. She studies elections, institutions, and political economy, with central emphasis on Latin America and the Caribbean. She is the author of Military Rule in Latin America and Party Competition and Public Policy. Her work has also appeared in a variety of journals, including the American Political Science Review, American Journal of Political Science, World Politics, British Journal of Political Science, Journal of Politics, and European Political Science Review. Her recent research explores the political economy of investment disputes and their reputational consequences as well as the rise of leftist-populist governance in Latin America.

Giorgio Sacerdoti is emeritus professor of international law at Bocconi University in Milan, Italy, where he currently teaches international trade and investment law on which subjects he has lectured and written extensively. From 1995 to 2001 he was vice-president of the Working Group on Bribery at the OECD where he chaired the drafting committee of the 1997 Convention against Bribery in International Business Transactions. From 2001 to 2009 he was a member of the WTO Appellate Body which he chaired in 2006-7. He is a graduate of Milan University Law School and has a Master of Comparative Law from Columbia Law School. He is a member of the Milan Bar and is active as arbitrator in commercial and investment disputes. He is on the roster of arbitrators of ICSID where he has chaired several arbitral tribunals.

Dayna Nadine Scott is Associate Professor at Osgoode Hall Law School and the Faculty of Environmental Studies at York University, Toronto, Canada. She is a past Director of the National Network on Environments and Women's Health and has led several research projects funded by the Social Sciences and Humanities Research Council of Canada (SSHRC). Professor Scott's teaching and research focuses on environmental law and policy, environmental justice, and gender and environmental health.

Ilan Strauss is a lecturer in economics at New York University (NYU), School of Professional Studies. He works as a consultant on the World Investment Report for UNCTAD, where he has contributed to writing the Africa section since 2014. He is on the coordinating committee of the National Minimum Wage Research Initiative at Wits University, South Africa. He holds an MSc in development economics from SOAS (University of London), and is completing his PhD in economics at the New School for Social Research (New York).

Gus Van Harten is a professor at Osgoode Hall Law School of York University. Previously he was a faculty member in the Law Department of the London School of Economics. He specializes in international investment law and Canadian administrative law. His books include Investment Treaty Arbitration and Public Law (OUP, 2007); Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration (OUP, 2013); and Sold Down the Yangtze: Canada's Lopsided Investment Deal with China (Lorimer, 2015). His academic articles and research are openly accessible on SSRN ssrn.com/author=638855 and at www.iiapp.org .

Yingying WU is currently a J.S.D. candidate at the college of law at University of Illinois at Urbana-Champaign, with the research area in international trade laws. She obtained her Master Degree from University of Illinois at Urbana-Champaign, and holds a Masters in International Business Regulation, Litigation and Arbitration from New York University. She holds her Bachelor Degree in law from China University of Political Science and Law. She was once a research scholar in the U.S.-Asia Law Institute at New York University. Her research interests cover from international economic law to international law.

Ely Caetano Xavier Junior is Professor of International Law and Conflict of Laws at the Federal Rural University of Rio de Janeiro. He is also doctoral researcher at the Law School of University of Sao Paulo and at the University of Geneva. His main areas of research include global trends in international investment agreements, the contribution of developing countries to the shaping of foreign investment policies and the interplay between investment and environment. Mr. Xavier Junior is a qualified lawyer in Brazil and holds a Bachelor and a Master of Laws from the University of the State of Rio de Janeiro and a Master in International Laws from the University of London.

Shu XU is currently lecturer at South China University of Technology Law School. He obtained his doctor of law, master degree in law and bachelor in law from Tsinghua University Law School. He also holds a Ph.D. in international economic law from Tohoku University in 2015. His research interests include international law and international economic law.