The Cooperation and Facilitation Investment Agreement (CFIA) in the context of the discussions on the reform of the ISDS system
The Brazilian Cooperation and Facilitation Investment Agreement (CFIA) model establishes an alternative approach to dispute resolution. This does not mean, however, that the CFIA is silent with regards to possible disputes arising from breaches to the agreement and/or claims by investors. Based on the premise that the investment regime between two or more countries is a positive-sum game, in which all parties involved win, the CFIA presents an approach based on the prevention of disputes.
How international investment agreements have made debt restructuring even more difficult and costly
International investment and trade agreements are legally binding international treaties which give investors an additional layer of legal protection on top of the host country law and contract law. However, little efforts have been made in ironing out the interface between these different laws and treaties. Inconsistencies and even contradictions have emerged in dispute settlement decisions, sometimes at the expense of public good, sovereignty and financial and economic stability. An asymmetry seems to exist in the allocation of risks and benefits between investors and recipients of investments. (more…)
The Legal Nature of the Draft Pan-African Investment Code and its Relationship with International Investment Agreements
The present Policy Brief examines the drafting and negotiating process of the draft Pan-African Investment Code (PAIC). It analyses different aspects of this process, particularly the legal nature of the PAIC and its relationship with other international investment agreements.
The Need to Avoid “TRIPS-Plus” Patent Clauses in Trade Agreements
A recent article in a prestigious journal reminds us of how the intellectual property chapter of free trade agreements can prevent the sick from getting treatment. This article also critiques the TPP clauses and warns that they should not be translated to national laws or copied into other FTAs being negotiated. (more…)
Reflections on the Discussion of Investment Facilitation
‘Investment facilitation’ is a concept repeated in discussions pertaining to investment policies and treaties, including those addressing the reform of investment treaties. The discussion on investment facilitation is taking place in various fora and contexts. (more…)
The Experience of Sri Lanka with International Investment Treaties
This policy brief gives an overview of Sri Lanka’s experience with investment treaties, including highlights from a study undertaken by the authors in regard to the interface between BITs and FDI inflows. The brief also reviews international trends in relation to re-negotiating BITs and discusses the elements driving these trends, offering insights into the factors shaping this discussion in developing countries. (more…)
Peruvian State’s Strategy for Addressing Investor State Disputes
This policy brief explains the approach adopted by Peru to establishment of the “System for the Coordination and Response of the State in International Investment Disputes” (SICRECI) and the role it played in responding to investor-state dispute settlement (ISDS) cases faced by Peru. It gives an overview of the sixteen ISDS cases brought against Peru to date. While this institutional development adds value in terms of managing cases as they arise, the paper points out that this system faces major hurdles due to multiple challenges arising from ISDS. As shown in the paper, after the establishment of SICRECI, Peru continued to face a rising number of ISDS cases. (more…)
Corporations, Investment Decisions and Human Rights Regulatory Frameworks: Reflections on the discussion pertaining to FDI flows and the impact of a potential International Legally Binding Instrument on Business and Human Rights
This brief explores the question pertaining to the impact of States’ participation in designing an Instrument on transnational corporations and other business enterprises in the area of human rights on attracting foreign direct investment, which has been a persistent issue of discussion since the mandate of the inter-governmental group on the mentioned Instrument was established. (more…)
The Annual Forum of Developing Country Investment Negotiators
The South Centre joins the International Institute for Sustainable Development annually in co-organizing the forum for developing country investment negotiators. The forum is a unique space dedicated to discussing current trends and perspectives in regard to international investment agreements, with a focus on developing countries’ experiences and objectives. It is dedicated to sharing of experiences and lessons learned from different national and regional contexts. (more…)
Approaches to International Investment Protection: Divergent Approaches between the TPPA and Developing Countries’ Model Investment Treaties
While the international investment treaty regime is at a conjuncture, States face the challenge of designing reforms that would result in systemic solutions, and not merely cosmetic changes, to the challenges emerging out of the existing regime and the ISDS mechanism it embodies. (more…)
Investment Treaties: Views and Experiences from Developing Countries
About the book: This book discusses the relationship between foreign direct investment, investment agreements and economic development. It examines the experiences of five developing countries reviewing their approach to international investment agreements and seeking alternatives in this area, including South Africa, Indonesia, India, Argentina, and Ecuador. Through reviewing investor-state dispute settlement cases, the book highlights how investment protection rules and the way they have been interpreted by arbitral tribunals have undermined the states’ right to adopt measures to protect public health and challenged the use of policy tools essential for industrialization. The book also discusses options for rethinking investment-related dispute settlement, including the option to reform the arbitration rules that apply to the disputes, and poses the question “What should investment-related dispute settlement look like if we were to start anew?”.