Articles and Book Chapters

Category: Reports, Memos, and Papers

• The Impact of Investment Treaties on Governance of Private Investment in InfrastructureLise Johnson, 2014-03-01
• Memo to the Obama Administration on the Burma Responsible Investment Reporting Requirements 2013-09-05 [+]
  In September 2013, the VCC sent a memo to President Obama and his Administration in response to the first public reports submitted by U.S. companies in compliance with the Burma Responsible Investment Reporting Requirements. The memo applauded the U.S. Government’s efforts to encourage responsible investment in Burma, noting that robust due diligence is essential to ensuring that international investments contribute to sustainable development. Yet the memo also urged the Obama Administration to take steps to strengthen future reporting. In particular, the VCC urged the Administration to issue clarifying guidance that any U.S. investor submitting a report should (1) provide information on due diligence policies and procedures related to land rights, and (2) provide thorough information in response to each reporting question, regardless of whether its investments are “passive.”
• New UNCITRAL Arbitration Rules on Transparency: Application, Content and Next StepsLise Johnson, Nathalie Bernasconi-Osterwalder, 2013-08-30
• Can Timor-Leste Rely on its Endowments to Achieve the Strategic Development Plan Targets?Nicolas Maennling, 2012-11-01
• Submissions to UNCITRAL Working Group II on Arbitration and Conciliation 2012-10-12 [+]
  Most investment treaties grant investors the procedural right to bring claims against governments through investor-state arbitration. Under the arbitration rules that commonly govern the proceedings, including the arbitration rules developed by a United Nations body, the United Nations Commission on International Trade Law (UNCITRAL), these disputes can remain hidden from public view from their commencement through conclusion. Recognizing the public interest in investor-state arbitration, UNCITRAL has been working since 2010 to develop a legal standard that would ensure transparency in investor-state arbitration. Committed to the belief that transparency in investor-state arbitration is fundamental for accountability, good governance, and the rule of law, elements which are, in turn, crucial for sustainable development, the VCC has been participating in the UNCITRAL process and has drafted various notes and proposals in support of the effort to increase public access to information regarding these disputes. In October 2012, the VCC and partners submitted two documents to country delegations to UNCITRAL: a background note describing and analyzing the key issues involved in UNCITRAL’s work to increase transparency in investor-state arbitrations, and a proposal for specific text that UNCITRAL could adopt. Based on developments in October 2012, in February 2013, the VCC submitted additional comments on UNCITRAL’s efforts to ensure transparency of investor-state arbitration. In July 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted its Rules on Transparency in Treaty-based Investor-State Arbitration. The Rules on Transparency offer a carefully negotiated and widely approved template for how to conduct investor-state arbitrations in a way that is consistent with the global recognition of the importance of transparency as a tool for promoting effective democratic participation, good governance, accountability, predictability and the rule of law. This fall, UNCITRAL will prepare a convention to facilitate wide application of the new rules to UNCITRAL and non-UNCITRAL arbitrations under existing and future treaties. The VCC, together with the Center for International Environmental Law and International Institute for Sustainable Development, has prepared a paper describing the new Rules on Transparency and UNCITRAL’s next steps.
• Why good governance of land and tenure security need to be part of the Sustainable Development Goal framework 2012-01 [+]
  The VCC and the UN Sustainable Development Solutions Network’s Thematic Group on Good Governance of Extractive and Land Resources published a short briefing note on including land governance in the Sustainable Development Goal framework. The note argues that incorporating good governance of land and tenure security would help meet a number of proposed sustainable development goals for the post-2015 development agenda, including reducing poverty, strengthening food security, empowering women, and alleviating commercial pressures on land. The note recommends the inclusion of an access-to-land indicator to help measure governments’ efforts.
• Memo to the SEC on the Proposed Rule on Disclosure of Payments by Resource Extraction IssuersPerrine Toledano, 2011-12-16 [+]
  The Vale Columbia Center on Sustainable International Investment strongly supports the transparency of contracts and tax flows. As many stakeholders in the field, the VCC’s belief is that transparency is essential so that a) governments can assess whether their contracts and laws are fair and comparable in terms and benefits to those in other countries with similar endowments; b) communities and civil society can assess how the risks, benefits and responsibilities are allocated among the various stakeholders, and c) governments and investors can be held accountable for their commitments. Guided by this belief, the VCC decided to establish the business case for transparency. The objective is to support the collective effort seeking to inform the Security and Exchange Commission (SEC) as it moves forward with the Dodd Frank Wall Street Reform and Consumer Protection Act, which requires all US listed companies to report detailed payments to governments on a country and project-by-project basis in all countries of operation.
• Zambezi Valley Development Study 2011-06-01 [+]
  In June 2011, the Vale Columbia Center released a consultative draft report on Resource-Based Sustainable Development in the Lower Zambezi Basin, the result of a year-long inquiry into how the vast resource deposits in Tete province, combined with other major investments along the Nacala and Beira corridors, can be the basis for sustainable, equitable and inclusive growth in the Lower Zambezi Basin. The report recommends a framework of actions by Mozambique and its public and private partners to ensure that Mozambique reaps a major boost to economic development from its vast resource endowments, while also respecting the profitability of private-sector investments in these important projects. In short, the report aims for a “win-win” arrangement in which all stakeholders, public and private, derive benefits from the mining sector in Tete Province. The consultative draft was presented in Mozambique in June 2011 to serve as the basis for discussion, comment, and engagement with the range of stakeholders- government, private sector, development partners, regional banks, and civil society. Comments are welcome on the report. The Vale COlumbia Center looks forward to working with stakeholders in the region on implementation.
• Memo to the SEC on the Dodd Frank Wall Street Reform and Consumer Protection ActSusan Maples, 2011-03-02 [+]
  The Securities Exchange Commission (SEC) has been working to write rules for the Dodd Frank Wall Street Reform and Consumer Protection Act for several months now. Of particular interest to the VCC is section 1504, which would require oil, gas and mining companies to report payments made to governments for those natural resources. The law takes its inspiration from the Extractive Industries Transparency Initiative (EITI). Resource-rich countries that voluntarily adopt the EITI require both the corporate disclosure that Dodd Frank will require as well as government disclosure of revenues received from companies. As a part of the rule-making process, the SEC invited the public to provide comments and research to assist with implementation of section 1504 (among others). The VCC submitted research showing that this proposed law would not violate foreign confidentiality laws or cause companies to violate confidentiality clauses in their contracts with governments. The submission emphasized that, if anything, the opposite is true: countries are moving towards requiring these disclosures, not vice versa.
• Investment Promotion Agencies and Sustainable FDI: Moving toward the Fourth Generation of Investment Promotion 2010-06-25 [+]
  The Vale Columbia Center and The World Association of Investment Promotion Agencies (WAIPA) conducted a survey of investment promotion agencies (IPAs) that are members of WAIPA on FDI and sustainable development in April and May 2010. The report based on the findings, Investment Promotion Agencies and Sustainable FDI: Moving toward the Fourth Generation of Investment Promotion, benchmarks the responses of IPAs regarding sustainable FDI and its four dimensions (economic development, environmental sustainability, social development, governance) and finds, among other things, that these are unevenly addressed by investment promotion strategies and investment incentives. The report also draws attention to the desirability of attracting sustainable FDI, rather than focusing on volume of investment alone.
• Rapporteur’s Report on the Roundtable on States and State-Controlled Entities as Claimants in International Investment ArbitrationMichael Nolan, 2010-03 [+]
  International investment by State-controlled entities (SCEs) is on the rise. State-owned enterprises (SOEs), especially from Europe, have long been active players in the world FDI market. They have been joined, in the past few years, by a wide range of SOEs and sovereign wealth funds from emerging markets, including from China, Russia, and Singapore. Parallel to the rise of international investment, investors have become more assertive in pursuing their rights under international investment agreements. The result has been a rise in treaty-based international investment disputes. It can be expected that the number of international arbitrations initiated by SCEs, while currently limited, will likely grow in coming years as well. This, in turn, leads to the question as to what specific issues may arise in international arbitrations if a claimant is a State or a State-controlled entity. On March 19, 2010, the Vale Columbia Center hosted a Roundtable on States and State-Controlled Entities as Claimants in International Investment Arbitration. The Roundtable reviewed cases brought in the past by SCEs and the issues that were discussed in their context, and it looked at the experience gained in commercial arbitrations as regards SCEs. From there, the Roundtable moved on to a number of specific issues that appear to be most relevant in the context of SCEs as claimants, namely issues related to the initiation of claims, forum selection, parallel proceedings, counterclaims, and third-party financing.  Understanding the new environment in which SCEs may operate as parties to international arbitrations, as well as the principal issues relating to disputes involving them, becomes an increasingly important matter for anyone interested in international investment law and arbitration. More information on the Roundtable event, including the program and participant list, is available here.
• Memo to the Obama Administration on “Improving the International Investment Regime”Karl P. Sauvant, 2009-01-29 [+]
  In January 2009, VCC sent a Memo to President Obama’s Administration on “Improving the international investment regime.” The Memo encourages the new Administration to take a look at the current international investment regime and consider several actions that the United States might take to strengthen that regime. A number of these ideas are already on the table, and the new Administration will have to be prepared, in one way or another, to deal with them. Several eminent colleagues at Columbia University signed on to the Memo.