Gus Van Harten

Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration

1. Introduction 2. Approaches to Judicial Restraint 3. Restraint Based on Relative Accountability 4. Restraint Based on Relative Capacity 5. Restraint Based on Relative Suitability 6. Strict Controllers of Nations

Reforming the NAFTA Investment Regime

The discussion in this paper elaborates a tiered set of reforms designed to (1) protect foreign investment, while (2) affording appropriate policy space for governments to develop and regulate their economies in a sustainable manner and (3) ensuring equitable governance of investment disputes such that foreign investors are not privileged, procedurally or substantively, over domestic investors and citizens. The paper includes a detailed appendix with proposed reforms to the NAFTA Chapter 11 text.

Foreign Investor Protection and Climate Action: A New Price Tag for Urgent Policies

From a climate perspective, not all investment is equal. Desirable investment in clean energy needs encouragement and protection, while undesirable investment in fossil fuels needs clear policy signals to avoid further investment in destructive activities and stranding more assets. In this paper, evidence is presented on how foreign investor protection provisions in trade and investment agreements tilt the playing field in favor of entrenched incumbents and against urgent action on climate; on the potential for a massive expansion of investor-state litigation and risks to climate policy in proposed trade deals; and on key flaws in recent European Commission proposals to reform investor-state dispute settlement (ISDS).

The (lack of) women arbitrators in investment treaty arbitration

In this short article, data is presented on the striking lack of women arbitrators in investment treaty arbitrations.The author argues for a mandatory roster system to ensure a more publicly accountable and deliberative merit-based appointments process while also enhancing arbitrator independence.

Investment Rules and the Denial of Change

The article reviews Constitutionalizing Economic Globalization by David Schneiderman. In the book, Schneiderman examines the relationships between international investment rules and constitutional principles of liberal democracy and identifies how arbitrators have interpreted investment treaties in ways that take constitutionalist notions of limited government beyond their domestic trajectories and that promote versions of the ‘rule of law’ with a distinctly neo-liberal bent. Ironically, this portrayal of investment arbitration as an institutional hammer of neo-liberalism that is just now hitting its nails coincides with a resurgent Keynesianism and renewed regulation at the domestic level, making the investment-rules regime’s claims to detachment from politics and government look all the more disingenuous or naïve. My main criticism of the book is that its claim of ‘constitutionalization’ is open to doubt given that (1) the treaties can be abrogated, (2) the treaties lack the normative power of domestic constitutions, and (3) investment arbitration lacks integral components of a liberal constitutional structure including institutional safeguards of judicial independence. Nevertheless, Schneiderman offers powerful insights on the capacity for alternative visions and resistance. It is also refreshing, in an age of too much talk about globalization, to see Schneiderman focus on national governments and their power to undo that which has been done.

A Report on the Flawed Proposals for Investor-State Dispute Settlement (ISDS) in TTIP and CETA

This discussion paper elaborates on five serious flaws with proposals for investor-state dispute settlement (ISDS) in proposed Europe-United States and Europe-Canada trade deals known by the acronyms TTIP and CETA. The issues elaborated in the paper are: the unjustified replacement of judges with arbitrators, the lack of institutional safeguards of independence and fairness in ISDS, the privileging of foreign investors over other actors, the risk to European standards of regulation, and the fact that TTIP (and to a lesser extent CETA) would expand the scope of ISDS massively. The paper is written from a European perspective, considering that most European countries and the European Union have not agreed to ISDS in any past treaty with the U.S. or Canada and thus would assume much-expanded risks and constraints associated with ISDS due to TTIP or CETA.

An ISDS Carve-Out to Support Action on Climate Change

How should a multilateral agreement on climate change include a safeguard against risks of investor-state dispute resolution (ISDS) lawsuits targeting climate change action by governments? The aim of this short report is to identify language for an ISDS carve-out that is reliable and clear considering the importance of climate change action and the financial uncertainties and potential deterrent presented by ISDS for states considering such action.

Reform of Investor-State Arbitration: A Perspective from Canada

The article presents a model for reform of investor-state arbitration aimed at enhancing institutional safeguards of independence in the system. The model is based on the person-to-government adjudicative mechanism in Canadas Agreement on Internal Trade. The article also summarizes the win-loss record of Canada and of Canadian investors in investor-state arbitration.

Policy Linkages of Investor-State Dispute Settlement

This issue of Commonwealth Trade Hot Topics offers a preliminary insight into what it means for developing country governments to commit to investor-state dispute settlement, and how this commitment entails linkages to their development policy space and regulatory decisions.