When we think of #ISDS, there seems to be no shortage of heated disputes regarding the legitimacy of this dispute settlement mechanism as a cog in the investment treaty regime. In the US, US politicians like Elizabeth Warren have spoken out fervently against ISDS.
The Walloons launched an assault against CETA. And as @vonderburchard reported in 2016, this was largely due to ISDS. isds.bilaterals.org/?walloon-parli…
But what about the perspective of African nations towards the investment treaty regime and, in particular, ISDS? This is a complex question. As Ian Solomon notes, “any aggregate portrait of the continent obscures its heterogeneity”. foreignaffairs.com/reviews/review…
The African continent is complex and diverse; and even writing that fails to capture the unique demands at the regional and city levels. What is the appropriate path for each communities' development, taking in history, political economy & particular environmental & social needs?
Too narrow a vision of actors involved glosses over how difficult it is to understand #ISDS but also development ambitions. As @JTGathii argues, in the context of South Africa, there are many competing forces at play in the investment treaty regime. papers.ssrn.com/sol3/papers.cf…
Enter @bisi_akins and his work on Africanization and international investment law (IIL). My students had the opportunity to read Bisi's latest work, but also to listen to an interview I recorded with him about this issue. Its great. Go read it! papers.ssrn.com/sol3/papers.cf…
@bisi_akins offers an assessment of #ISDS through a TWAIL lens. And we discussed a particularly thorny issue: How is it possible for African States (& Global South) to debate #ISDS reforms without also contesting the "enhanced imperial domination exploitation of host States"?
Such questions are framed by Bisi as "moderate" and "radical" Africanization of IIL. I don't think I offer any spoilers to say that this paper is issuing a normative call for a more radical Africanization of IIL while acknowledging the likelihood of incremental reforms to ISDS.
Drawing on Crenshaw, @bisi_akins champions a distinctly progressive African outlook that focuses on the needs of the African community to the investment treaty regime. But we observed that its not about the treaties - its about what these treaties are supposed to achieve.
To consider the tensions of views, students reviewed @afronomicslaw online symposium, reading excerpts from John, Mbori & @JeanHo_Law to better understand how and why radical reforms of IIL are often (to borrow from Ho): disguised, dismissed, and diverted. afronomicslaw.org/2020/09/09/heg…
Gathii argued that reform efforts are isolated from the often localized struggles, and so I asked my students to read Prof. Odumosu-Ayanu's work on local communities in the context of oil and gas investment in Africa. See a video explaining this work: iligs.osgoode.yorku.ca/2017/11/17/loc…
We considered Odumosu-Ayanu's brill assessment of the interaction b/n economic development as a goal alongside the impacts of environmental degradation, and how local communities in her case study raised concerns to States, both throughout the life of foreign investment projects.
This led to a discussion on investor responsibilities as part of the puzzle. For this, we considered the Pan African Investment Code (2016) as unique guidance on ISDS but also socio-political obligations, and commitments for CSR, business ethics, HR, and sustainable development.
(Note: this was for a separate class!) I asked my students to read @LCotula long form blog on the Eco Ora challenge. Its a rare glimpse into the people and land impacted. But it also highlights the diversity of views involved in foreign investment. iied.org/investment-dis…
In the separate class on investment laws @LiseJohnson1 @CCSI explained how CCSI/IIED/IISD wanted to bring attention to why third parties voices are important when negotiating ISDS reforms. But these centres also bring to the table proposals on how to do it.ccsi.columbia.edu/files/2019/07/…
CCSI/IIED/IISD lay out 3 options for bringing in local communities into the #ISDS reform efforts. Each option has different benefits and costs, but they're meant to be a starting point for discussion amongst government actors. States need to want to put it on the packed agenda.
Why does this matter? As @nicolasmperrone has shown in shorter pieces but also a part of his new book see anthempress.com/world-trade-an… & global.oup.com/academic/produ…, the role and interests of local communities are consistently avoided in IIL. Yet development is meant to aid these groups.
Cotula and Schroder have offered an interesting typology of disputes showing how complex the engagement w/ local communities can. The visual displaces the traditional image (& one I use for jurisdiction) as between host states, home states, and investors. pubs.iied.org/sites/default/…
My development class and I discussed Perrone's participatory model - setting out extensive community engagement in all phases of investment: planning all the way to management of an investment project all the way to dispute resolution and the eventual dissolution of the project.
We discussed the practical issues, noting how difficult it might be to identify relevant communities w/ plurality concerns between & among (dense) local communities and considering rings of impacted people, eg, with investment projects that impact clean water or agriculture.
Ultimately, both classes fixated on the relationship between local governance and international governance. How would #ISDS improve domestic systems if it can (and frequently does) displace local remedies for investors while offering limited resolution for local communities?
Is UNCITRAL the right forum for debate about the ongoing use of #ISDS? There is no guarantee States will align #ISDS reforms. Each govt determines investment facilitation and protections (even the EU&MS have negotiated w/o imposing the #MultInvCourt as a redline).
Generating discussion on issues such as that raised by CCSI/IIED/IISD are important for 3rd party rights issues straddle the substantive and procedural dimensions. But here's the thing: ISDS is not the end goal. Its about development- not just a State -of all the collected local.
And so we need @l_eslava and his work on local spaces in the development discourse. cambridge.org/core/books/loc…. And we need to question causation assertions that international frameworks automatically foster domestic ones, without considering the relationship of people to law.
UNCITRAL WG3 efforts are important but not the end of the story. Crucial we understand imperfect choices @gregorycshaffer @LawProfPuig cup.org/3dnYIL1 and that such choices are not enough to foster corporate actions needed to address global & local sustained concerns.

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More from @loyaladvisor

24 Mar
What is China's Belt and Road Initiative (BRI)? To understand China's developmental strategy, its important to consider both China's unique economic structure and its infrastructure network on its own terms, not just as a threat to the United States or legal internationalism.
I taught China's developmental strategy last week. My students began by reading Mark Wu's China Inc. Wu's work is so clear in showing that this is not just about Chinese state capitalism, bur a complex network involving private firms & Party-state control. harvardilj.org/wp-content/upl…
Wu explains how China Inc. came after China's accession to the WTO. I think Wu's work is crucial to understand, especially considering the WTO's centrality to global economic governance. I'd love to have seen Wu follow up considering the digital silk road (he wrote it in 2015).
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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, academic.oup.com/isq/article/58…
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3 Mar
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.
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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.'
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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: repository.law.umich.edu/mjil/vol41/iss…
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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.
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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.
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