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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