October 19, 2021
Introduction
Organized by UNCTAD, the conference discussed how policymakers, International Investment Agreement (IIA) practitioners, civil society and legal scholars can urgently take stock of on-going reform efforts during the pandemic, both in terms of what IIA reform measures countries and regional organizations have undertaken or are considering to undertake in response to the crisis, and how to maintain and strengthen the reform momentum in light of the increased fragility of economies around the world that places added emphasis on the importance of FDI as a means of development finance.
In particular, the discussions reflected on taking concrete steps towards a more coherent and consolidated process for modernizing old‐generation IIAs with the aim of paving the way for further inclusive, transparent and synchronized IIA reform processes in the pursuit of sustainable development in the post‐Covid‐19 era. Panellists particularly looked at stock taking of IIA reform efforts, procedural reform: investment dispute settlement, and accelerating IIA reform in the public interest.
Session Highlights
Taking stock of the IIA reforms, Panellists indicated that steps have so far been taken to moderne treaties. Their reforms features are in line with those outlined in UNCTAD’s reform package for the International Investment regime or Investment Policy Framework for Sustainable Development.
These include the following:
- Safeguarding the right to regulate, while providing protection,
- Reforming investment dispute settlement,
- Promoting and facilitating investments,
- Ensuring responsible investment, and
- Enhancing systemic consistency.
Panellists opined that investment reforms should take into consideration the way to promote SDGs, managing climate change, establishment of advisory centres for developing and least developing countries to be able to navigate the new system, setting up code of conduct for investors and including human rights concerns. Panellists further submitted that the reforms that are being undertaken particularly at the bilateral levels should be non-discriminatory, transparent and ensure equality.
The need of the hour is to ensure responsible investment and establish multilateral dispute resolution system, in order to assist with investment dispute settlement that will ensure more transparent and efficient adjudication. To ensure acceleration of reforms, Panellists suggested capacity building on investment treaty on national levels, to enhance the knowledge of government officials, and development of toolkits as template for developing economies.
Countries should review investment treaties to ascertain health and need for reforms synchronising with country’s growth plan. Governments should undertake reforms but should not lose cognisance of their own developmental policy agenda. They should also take critical role in capacity building domestically and coordinating internationally to ensure reforms are consistent with global goals.
Reforms should not just be symbolic or cosmetic but should be optimal and adopted in letter and spirit.. That is there should be a distinction between the right to regulate and the duty to regulate.
Negotiations should also include a legally binding obligation on investors.
The following suggestions were raised during the session,
- The need of political will of individual governments to undertake reforms
- Involving all stakeholders i.e. CSOs, NGOs, academia among other in the reform process to ensure a coherence reform
- Incorporating the plight of the business community and
- The need for cross fertilized and compatible investment reforms.
Opening
Mr. James Zhan, Director, Investment and Enterprise, UNCTAD
Panellists:
Panel I: Taking stock of the reform of the IIA regime
- Emily Mburu-Ndoria, Director, Directorate of Trade in Services, Investment, Intellectual Property Rights and Digital Trade, African Continental Free Trade Area (AfCFTA) Secretariat
- Urban Rusnák, Secretary-General, Energy Charter Secretariat
- Carlo Pettinato, Head of Investment Policy Unit, European Commission
- Meg Kinnear, Secretary-General, International Centre for Settlement of Investment Disputes (ICSID)
- Ana Novik, Head of the Investment Division, Organisation for Economic Co-operation and Development (OECD)
- Anna Joubin-Bret, Secretary, United Nations Commission on International Trade Law (UNCITRAL)
- Moritz Lumma, Head of Division, Foreign Investment, Paris Club, Development Banks, Federal Ministry for Economic Affairs and Energy, Germany
- Cindy Rayo Zapata, Director General of International Trade in Services and Investment, Ministry of Economy, Mexico
- Caroline Kollau, Director, Trade Policy and Economic Governance, Ministry of Foreign Affairs, The Netherlands
- Fareena Mazhar, Secretary, Board of Investment, Pakistan
- Kekeletso Mashigo, Director, Legal: International Trade, Investment, Dispute Settlement, Department of Trade, Industry and Competition, South Africa
- Felix Imhof, Deputy Head, International Investment and Multinational Enterprises Division, State Secretariat for Economic Affairs (SECO), Switzerland
Moderator:
- Samira Sulejmanovic, Head, Department for Bilateral Trade Relations, Ministry of Foreign Trade and Economic Relations, Bosnia and Herzegovina
Panel II: Way forward – Accelerating IIA reform
- Winand Quaedvlieg, Chair, Committee on Investment and Responsible Business Conduct, Business at OECD (BIAC)
- Chantal Ononaiwu, Trade Policy and Legal Specialist, Office of Trade Negotiations, CARICOM Secretariat
- Lisa Sachs, Director, Columbia Center on Sustainable Investment (CCSI)
- Suzy H. Nikièma, Sustainable Investment Lead, Economic Law and Policy Program, International Institute for Sustainable Development (IISD)
- Jansen Calamita, Head of Investment Law and Policy, Centre for International Law, and Research Associate Professor (CIL), Faculty of Law, National University of Singapore
- Surya Deva, Chair, UN Working Group on Business and Human Rights, and Professor, Macquarie Law School, Sydney
- Shaun Donnelly, Senior Advisor, United States Council for International Business (USCIB)
- Makane Moïse Mbengue, Professor of International Law and Director of the Department of International Law, University of Geneva
Moderator
- Patience Okala, Director, Legal Services, Nigerian Investment Promotion Commission, Nigeria
Closing
- Hamed El Kady, Senior Investment Policy Officer, International Investment Agreements Section, UNCTAD