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In evaluating the investor state dispute settlement (ISDS) system, and
the numerous reform proposals circulating, it is worth remembering that the
entire history of ISDS is quite recent. Almost all concluded cases have been
decided in the last fifteen years. And even within the last ten years, there
have been notable changes in the types of cases that are brought, the size
of damages both claimed and awarded, and tribunals' interpretations of key
provisions. So current discussions about reform are a timely and appropriate
stock-taking of the ISDS mechanism, and whether its use has met the aims and
objectives of the system, and with which outcomes and impacts.

In September 2015, the heads of 193 United Nations (UN) Member States adopted 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The agenda provides a successor framework to the Millennium Development Goals, which were adopted in 2000, with a view to ending poverty in all forms and dimensions, protecting the planet, and ensuring prosperity for all.

Mining represents a great opportunity for economic growth, especially for emerging economies. It is often seen as the path to prosperity. However, the mining industry is a double edged sword. Countries in Latin America are managing to attract significant foreign investment. In Chile, the extractive sector's participation in the economy has tripled in the last 10 years, reaching 15% of GDP. In Colombia and Peru, it has doubled to 10% of GDP. The Santos administration in Colombia has made mining one of its top policy priorities. However, there may be significant downsides to mining, as governments are forced to offer favorable conditions to mining companies and investors. This is having negative consequences for the environment, national revenues, and human rights. If badly managed, the mining boom might even harm long-term economic growth. This week, communities from Colombia, South Africa, Mongolia, and the U.S. will demonstrate in London against some of the world's largest mining companies.

How can governments best ensure mining produces broad-based economic development? At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five "pillars" that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five "pillars" that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.

Attracting investment in agriculture has been a key policy goal of governments in the global south. Development partners have supported these policies. But what do governments hope to achieve by attracting investment in the agricultural sector? Why are companies interested in investing? What is in it for local communities? And what is the role of lawyers? This primer provides an introduction to some of the key issues that arise in the negotiation of contracts linked to investments in agriculture, and practical guidance for how to approach common issues. Section 1 of this primer outlines the typical goals of three important stakeholders – the government, companies, and communities who live on or near land on which a project will take place – along with the risks that each type of stakeholder faces. Section 2 discusses the role of contracts and lawyers, provides tips for negotiations, and includes resources for further reading.

Over roughly the past four decades, government officials from around the world have been erecting a framework of economic governance with major – but under-appreciated – implications for intra-national inequality. The components of this framework are thousands of bilateral and multilateral treaties designed to protect international investment. In many jurisdictions, the treaties have been concluded without public awareness or scrutiny or even much discussion or analysis by government officials – including those officials responsible for negotiating the agreements(Poulsen 2015) – and without an adequate understanding of how these agreements could affect intra-national inequality. Long imperceptible, the size and power of this framework for economic governance has increasingly become apparent. And governments continue to expand and entrench the framework through the negotiation of several new bilateral and multilateral agreements, including the Trans-Atlantic Trade and Investment Partnership Agreement between the European Union and the United States, the agreements China is negotiating with the United States and European Union, and the Regional Comprehensive Economic Partnership (RCEP) agreement being negotiated by sixteen countries throughout Asia and the Pacific.

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. ; https://scholarship.law.columbia.edu/sustainable_investment_books/1010/thumbnail.jpg

UNCITRAL has a vital role to play in exploring problems with and potential reform of ISDS, and in considering how to ensure its work better promotes, and does not undermine, rule of law, other domestic and international commitments and policies, and the globally agreed Agenda 2030. As the process moves forward, it is essential for the work to take a broad approach to defining the problem of "inconsistency" and designing reform solutions, as explored in this briefing note. Reform proposals regarding limiting shareholder claims, increasing states' interpretive power, and avoiding inappropriate adjudicator incentives are undoubtedly positive signs that reflect earnest desire for change. But it is unclear that anything short of a reversion to state-to-state dispute settlement will minimize the risk of inconsistency across law and policy spheres.

The negotiation of several mega-treaties in 2015, including the Trans-Pacific Partnership (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP), the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and other regional agreements, has generated substantial public discussion about the protections and privileges afforded to multinational enterprises through the investor-state dispute settlement (ISDS) mechanism in these treaties. ISDS has increasingly raised concerns among certain governments and civil society groups, particularly as a growing number of ISDS cases involve investors challenging a range of governmental measures taken in good faith and in the public interest, including measures related to environmental protection, public health and safety, and financial stability. Even representatives of international businesses – the purported beneficiaries of these texts – have voiced concerns about the costs of ISDS proceedings, uncertainty regarding outcomes of disputes, and an absence of rules to ensure the independence and impartiality of arbitrators.

During the negotiations of the Trans-Pacific Partnership (TPP) agreement, many stakeholders raised strong concerns about the Investment Chapter of the TPP, and in particular, the investor-state dispute settlement mechanism (ISDS). The US Trade Representative (USTR) and other representatives of the negotiating partners assured the stakeholders that the TPP's investment chapter would respond to the legitimate concerns about expansive investor protections and ISDS. The actual text, however, when made public, showed the opposite: a further evisceration of the role of domestic policy, institutions, and constituents. In their current form, the TPP's substantive investment protections and ISDS pose significant potential costs to the domestic legal frameworks of the US and the other TPP parties without providing corresponding benefits. In this Policy Paper, CCSI's Lise Johnson and Lisa Sachs respond to the USTR's claims that the "TPP upgrades and improves ISDS" and "closes loopholes and raises standards higher than any past agreements." Indeed, as the memo discusses, there are a number of problems from previous trade agreements that have been carried over into the TPP, and new provisions added to the TPP that do not appear in other US FTAs and that raise additional concerns. This analysis follows on a Policy Paper on Investor-State Dispute Settlement, Public Interest, and US Domestic Law, in which the authors, together with Jeffrey Sachs, highlighted more systematic flaws of investment treaties and their ISDS protections, including the impact that ISDS has on the development, interpretation and application of domestic law. More of CCSI's research on the intersection of treaty law and domestic standards can be found here.