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Towards a Constitutional Law Framework for Investment Law Reform

Published on January 5, 2015        Author: 

Reforming international investment law and investor-state arbitration is a widespread concern. This is nowhere more manifest than in the heated debates (in Germany and elsewhere) about the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP). Should there be investor-state arbitration between economies with well-functioning legal systems? Do we need an appellate mechanism to control arbitral tribunals? Who should serve as arbitrator and what ethical standards govern? And how should the substantive standards of investment protection be formulated in order to safeguard policy space for host states? These are some of the questions debated. At the same time, reforming international investment law is not only on the agendas of contracting parties, it also plays an important role for international organizations, such as the United Nations Conference on Trade and Development (UNCTAD), the Organisation for Economic Co-operation and Development (OECD), or the Southern African Development Community (SADC).

The Need for a Normative Framework for Investment Law Reform

The reform proposals that result from these various initiatives reflect the political pressure international investment law is facing; they also put pressure on states to remedy the discontents with the current system (see my earlier post on EJIL: Talk!). At the same time, the large number of reform proposals currently floated risk fragmenting investment law even further. This can be counterproductive if the aim is to arrive at an investment law regime that is both balanced and predictable. Furthermore, reform proposals themselves reflect underlying political and ideological preferences that may not be globally shared. What is needed therefore is a debate about these preferences and their impact on investment law reform. In other words: we need a broader debate about the normative framework for investment law reform.

As I argue in my Editorial of the latest Special Issue of the Journal of World Investment and Trade (entitled ‘Towards Better BITs? – Making International Investment Law Responsive to Sustainable Development Objectives’), this framework should not be seen only as a matter of (potentially short-lived and changing) economic policies that differ from one country to another. Instead, we should develop a framework for investment law reform on the basis of more fundamental principles, in particular if we are looking for ‘systemic reform’ that makes international investment law acceptable to all states. This requires – as Karl Sauvant and Federico Ortino rightly point out in a recent study – consensus-building processes about underlying assumptions and objectives for investment law reform. Read the rest of this entry…

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Announcements: Conference at Univ. of Hull on Customary International Law; Roundtable in London on Benefits and EU Law

Published on January 2, 2015        Author: 

1.  The McCoubrey Centre for International Law at the University of Hull will host a two day conference on 2 and 3 July 2015 on the topic of customary international law entitled “Making International Custom More Tangible”. The conference will be held at the University of Hull (UK) and will include panels chaired by leading academics and a key note speech by Sir Michael Wood, ILC Special Rapporteur on the Identification of Customary International Law. The conference is particularly aimed at research students and early career academics. Interested participants should provide an abstract of 500 words by 15 February 2015. Further information including the call for papers and facility for the online submission of abstracts are available here.

2.  Benefits and EU Law – Round table discussion. The City Law School is delighted to invite you to a debate organized under the aegis of the Jean Monnet Chair in European Law. The topic is Benefits and EU law – the law behind the story. The round table will be chaired by Panos Koutrakos (Professor of EU Law and Jean Monnet Chair in EU Law). Speakers will be  Professor Damian Chalmers (LSE), Professor Niamh Nic Shuibhne (University of Edinburgh), Mrs Jacqueline Minor (Head of EU Commission Representation in UK), Professor Philippa Watson (City Law School and Essex Court Chambers). The event will be held at City  University London, College Building, St John Street, Room A130 on Monday, 26 January 2015 at 18:00. The event will take the form of a round table discussion with questions from the Chair and the floor. It will be followed by a wine reception. Attendance is free. You may sign up here.

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