Finally able to give serious read @AntheaERoberts @taylor__stjohn recent sum-up of UNCITRAL WGIII talks (TL/DR: take up the pen). The desire to stop high level talks and move to details is a great way to move forward; analogy is to writing - at some point you need to just start.
What is very interesting is the marriage of 2 points by these scholars: 1) EU&MS/Switzerland proposal for text via informal sessions before taking text to broader group; 2) focusing next time on "WHO texts as well as HOW and WHEN that texting occurs."
Its inescapable to compare to WTO struggle to cooperate multilaterally and urgent questions on legality of joint initiatives plus longstanding concerns of developing countries with informal, green room talks. I suspect we will see similar concerns rise up in investment context.
Who will be in the room where it happens? SOME text is needed to work from - even if a State wishes to disagree, let disagreement happen on paper for progress to happen.

It will be a challenge for the Chair to balance inclusivity and progress.
While the States debate the value of informal groupings to draft text, one solution is to not just work with a coalition of the willing, but seek out smaller clusters of varied groupings. Another option may be to rely on rounds, where one text goes through various groupings.
Some States (& scholars) will undoubtedly be frustrated by the decision to not consider systemic concerns with the whole system. Perhaps this process of reforming the existing DSM will encourage States to take more seriously mixed data on whether treaties impact investment flows.
Each government must decide for its people (as we see with Brazil) whether to proceed with ISDS or resort to SSDS; whether to take seriously possibilities eg, entrenching investor responsibilities and counterclaims.
But one question I hope the UNCITRAL WG III will consider for #MultInvCourt, whenever travel is made possible and these officials can come together to meet and talk-that they take seriously to ask WHERE the text is done. They need to take seriously that this question matters too.
Oh and Roberts and St John offer, as always, an illuminating assessment that you should read, and you can do so here:… Plus Julian's hard look to details here:…

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More from @loyaladvisor

4 Mar
My class today looked at foreign investment and the goal of development. The initial focus was twofold: first, the HOW, WHY, and WHAT countries sign up for when they conclude investment treaties; and second, the impacts of investment treaties on governance & development.
The groundwork was laid out by @laugepoulsen @JBonnitcha @WaibelM09 great book, The Political Economy of the Investment Treaty Regime. But I paired the introduction and review of the politics of developing countries with a case study on South Africa.
We started with @laugepoulsen article (which is a shortened piece from his book). We discussed the history in South Africa and elaborated on the experience of officials to negotiate these treaties,…
Read 13 tweets
8 Oct 20
This is an important point from @geoffreygertz and one which @harlangcohen and I have long discussed about the internal debates that led to the creation of USTR. And I hope to support Geoff's ridiculously sharp thread by reflecting on agencies' impact on the trade/security divide
International trading rules structure national security as an exception to rules of non-discrimination and trade liberalisation & this emerged as some saw trade = peace. Security exceptions were important, albeit dangerous for the multilateral trading system = rare formal use.
But the absence of invocation over time never eradicated the significance of national security as a justification or element of international economic relations between countries. As economist Thomas Schelling remarked in 1971, ‘trade policy is national security policy.'
Read 9 tweets
29 Jan 20
A thread on "Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions", especially for those curious about my big picture thoughts on this project. Michigan J Int'l Law has it up here:…
My intensive archival work into the construction of the security exceptions illuminates, but also complicates, current debates about the interpretation of article XXI GATT, which is relevant for several disputes at the WTO.
My work provides new evidence into the making of the International Trade Organization (ITO), the original post-WW2 multilateral trade institution, through investigation of the internal debates among the lead architects of the exceptions and the ITO preparatory materials.
Read 8 tweets
9 Dec 19
I’ve seen discussion as to how the judicialization of the WTO is far beyond what the US originally contemplated. What does that mean? I fear, as others do, that the absence of the WTO Appellate Body is not a return to the GATT legal system, it is return to unilateral retaliation.
Without focusing too much on the prescriptions (@nicolas_lamp offers cogent ideas @WorldTradeLaw), the driving force behind the emergence of the multilateral trade system was international cooperation and the shared view that no member should take the law in its own hands.
But, why not go back to the GATT–before the judicialized system? The GATT was a small group of contracting states, and not today's WTO heterogenous group. I note there was thinking about non-market economies, the size of the Chinese economy was not contemplated in the 1940s/50s.
Read 10 tweets
2 Oct 19
The US has posted its first submission for the US-Certain Measures on Steel and Aluminum Products (s.232 cases). I'll be posting on @WorldTradeLaw about this, as I suspect others will too, but for now, a thread on my initial reactions.
@WorldTradeLaw As expected, the U.S. argues that Article XXI(b) of the GATT 1994 permits any WTO Member to take action to protect its essential security in a manner it considers necessary. It begins with an interpretation pursuant to Article 31 Vienna Convention.
As per the Russia-Traffic in Transit decision, the US argues that Art XXI(b) is entirely self-judging. This means the WTO Member invoking Art XXI(b) may decide what is "necessary", what is "essential security interests" and whether its actions are identified in ArtXXI(b)(i)-(iii)
Read 27 tweets
5 Aug 19
I found @howserob comments insightful. Thinking aloud, and as someone who devotes time to archival work (which is by *definition* slow), there is great merit in combining slow and fast (though I doubt Rob would call it this) writing.
We are in the industry of ideas (@dandrezner). We devote years to law and policy, and now - more than ever - many of us see opportunity, and responsibility, to help others understand the world. Whether that's to see the big picture, new narrative, new voice, or nuance in rules.
This means offering insights on Twitter with cutting-edge threads, writing op-eds, writing blogs, or speaking up. Sometimes remaining apolitical and unbiased, and other times not. But, these instant interactions add value - even if fleeting - to engage and think.
Read 5 tweets

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