Columbia FDI Perspectives
Columbia FDI Perspectives is an occasional series of perspectives on important and topical foreign direct investment issues.
The Columbia Center on Sustainable Investment seeks to promote a robust and wide ranging exchange of perspectives in the FDI area. Accordingly, the opinions expressed by individual authors through the Columbia FDI Perspectives do not necessarily reﬂect the opinions of Columbia University or its partners and supporters.
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No. 183: “Can host countries have legitimate expectations?,” by Karl P. Sauvant and Güneş Ünüvar
In international investment law, foreign investors can claim that host countries have acted against investors’ legitimate expectations. Especially in light of recent investment treaties recognizing sustainable development goals and the importance of responsible business conduct, this Perspective asks whether host countries too can have legitimate expectations regarding foreign investors’ conduct. 中文版
No. 182: “Philip Morris vs. tobacco control: two wins for public health, but uncertainty remains,” by Tania Voon and Andrew D. Mitchell
Two investment treaty claims launched by Philip Morris entities against tobacco control measures implemented by Australia and Uruguay have ended, with Philip Morris losing both disputes. This Perspective highlights these positive results from a public health viewpoint while emphasizing the continued need for reform of the investment regime. 中文版
No. 181: “The EU proposal for an Investment Court System: what lessons can be learned from the Arab Investment Court?,” by John Gaffney
The EU has presented a proposal to the US for an Investment Court system to resolve investor-state disputes under the Transatlantic Trade and Investment Partnership. This Perspective discusses the lessons that may be taken from the long-established Arab Investment Court in finalizing the design of the proposed Investment Court. 中文版
No. 180: “An International Investment Court: panacea or purgatory?,” by M. Sornarajah
EU officials have proposed the establishment of a permanent court for investment disputes. But there is no guarantee that bias, the reason for the lacking legitimacy of investment arbitration, does not affect judges. This Perspective suggests that it may be preferable for investment disputes to be settled by domestic courts. 中文版
No. 179: “Chinese FDI in the EU: learning from the renewable energy sector,” by Francesca Spigarelli and Ping Lv
Chinese foreign direct investments in the EU are helping to integrate the Chinese and EU renewable energy industries. This Perspective discusses recent trends, motivations, and location choice of Chinese investors in the EU, as well as policy implications in light of economic and technological challenges to the sector. 中文版
No. 178: “The Pacific Rim as a platform for international investment law harmonization,” by Mark Feldman, Rodrigo Monardes Vignolo and Cristián Rodríguez Chiffelle
Over the past decade, active, converging treaty practice in the Pacific Rim region has created substantial momentum for international investment law harmonization. This Perspective argues that such momentum establishes the Pacific Rim region as an exceptionally well-developed platform for achieving further harmonization of the international investment law regime. 中文版
No. 177: “Changing geography: prospects for Asian actors as global rule-makers in international investment law,” by Stephan W. Schill
The past years have witnessed a shift in the geography of international investment law from a transatlantic to a transpacific perspective. Asia has become the focal point in the field. This Perspective considers to which extent Asian actors can translate their new importance into global rule-making clout. 中文版
No. 176: “Protecting public welfare regulation through joint treaty party control: a ChAFTA innovation,” by Anthea Roberts and Richard Braddock
The recent FTA between China and Australia aims to protect public welfare measures through joint treaty party control. This Perspective assesses the FTA’s mechanism in the context of broader efforts to rebalance investor protection and state sovereignty, and to recalibrate interpretive authority between arbitral tribunals and treaty parties. 中文版
No. 175: “The case for an advisory center on international investment law,” by Umirdinov Alisher
Taking the success story of the Advisory Center on WTO Law in providing subsidized, low-cost legal advice to developing and LDC members of the World Trade Organization, investment law researchers should ask whether we need a similar advisory center in the field of international investment arbitration. 中文版
No. 174: “China’s “new normal” in international investment agreements,” by Qianwen Zhang
As it emerges as both a significant inward and a significant outward FDI country, China is adopting new approaches to international investment agreements. This Perspective discusses China’s “new normal” in international investment agreements, namely that China is adapting to prevailing international investment law standards. 中文版
No. 173: “Using investor-state dispute settlement to enforce investor obligations,” by Gabriel Bottini
IIAs generally establish obligations for host countries only. Foreign investors may claim for measures taken against a related local company, yet they are not liable for breaches of obligations by this company. This Perspective suggests that IIAs may be used to enforce obligations binding upon the local investment vehicle. 中文版
No. 172: “Not all foreign direct investment is foreign: the extent of round-tripping,” by Maria Borga
Some foreign investment represents domestic funds that have been sent abroad before returning to the domestic economy, called round-tripping. Traditional FDI statistics do not distinguish round-tripping from genuine foreign investment. This Perspective argues for countries to produce statistics by ultimate investing country to identify the round-tripping in their economies. 中文版
No. 171: “Untangling the effects of “special purpose entities” on global FDI ,” by Delphine Nougayrède
Investments made through foreign special purpose entities (SPEs) are often measured in the same category as foreign direct investment – yet the beneficial owners of such entities are often unknown. This Perspective presents a Russian example of the distortion in national FDI statistics arising from one SPE. 中文版
No. 170: “An outline for systematic reform of the investment law regime,” by Wenhua Shan
A multilateral framework on investment could provide an opportunity for a systematic review and reform of the international investment regime. This Perspective considers what features a new regime should incorporate to ensure it is a self-balanced system that evenly serves the interests of host countries and foreign investors. 中文版
No. 169: “Land investments and human rights: how home countries can do more,” by Kaitlin Y. Cordes and Anna Bulman
The current failure of host governments and international law to protect human rights in the context of land-based investments highlights the need to employ other mechanisms. This Perspective discusses home country measures as one strategy for encouraging more rights-supportive outward investment in agricultural and forestry projects. 中文版
No. 168: “Can India emulate China in attracting and benefitting from FDI?,” by Karl P. Sauvant and Daniel Allman
Over the last forty years, China’s economic growth and rates of FDI have vastly outstripped India’s. As India seeks to boost foreign investment with its “Make in India” campaign, this Perspective considers the possible lessons from China’s experience and recommends matching regulatory reform with coordinated investment promotion. 中文版
No. 167: “Mining automation: threat or opportunity for FDI technology spillovers?,” by Nahom Ghebrihiwet
The process of mining automation has accelerated in recent years. As a result, fewer workers are needed at mine-sites, and mining companies need high-technology equipment. This Perspective addresses how resource-rich countries need to adjust traditional local content regulation in order to foster FDI technology spillovers in the future. 中文版
No. 166: “Democracies conclude more and stricter international investment agreements – but why?,” by Eric Neumayer and Peter Nunnenkamp
Democratic governments tie their hands particularly tightly by concluding more and stricter international investment agreements than autocratic governments, even though the domestic institutional framework in democracies alone offers protection for foreign investors. This Perspective argues that political scientists and economists are currently not able to explain this puzzle convincingly. 中文版
No. 165: “A new foreign direct investment accounting methodology for economic development organizations,” by Henry Loewendahl
Official FDI statistics are based on balance of payments data and the equity share of the foreign entity. This Perspective argues that the official method of measuring FDI is not suitable for economic development organizations, and outlines eight key components of a new methodology to measure FDI for economic development. 中文版
No. 164: “International investment law and decentralized targeted sanctions: an uneasy relationship,” by Anne van Aaken
Decentralized smart sanctions are ever more used, e.g. against Russia. This enforcement system in international law may come into conflict with investment protection law (in contrast to UN sanctions). This Perspective explores under what factual circumstances and legal assumptions this may be the case. 中文版
No. 163: “Toward balanced Arab regional investment regulations,” by Moataz Hussein
The post-Arab Spring challenges that affected business climate in the Arab region have prompted many countries to revise their investment policies to balance investors’ and states’ rights and obligations. Although there has been some success regarding national legal frameworks for FDI, efforts within regional frameworks have not been so effective. 中文版
No. 162: “Preferential investment liberalization under bilateral investment treaties: How to ensure compliance with WTO law?,” by Robert Basedow
Numerous modern bilateral investment treaties seek to liberalize bilateral investment flows on a preferential basis. This Perspective argues that such liberalization commitments are likely to be multilateralized under the General Agreement on Trade in Services. It discusses how policy-makers may avoid the multilateralization of such bilateral liberalization commitments. 中文版
No. 161: “The case for a multilateral or plurilateral framework on investment,” by Wenhua Shan
With converging investment agreement practice and increased participation of developing countries in the investment regime, the time is right to reconsider a multilateral or plurilateral framework on investment. This Perspective discusses how existing institutions could contribute to its focus, establishment, and governance. 中文版
No. 160: “The Trans-Pacific Partnership investment chapter sets a new worldwide standard,” by Mélida Hodgson
Seen in the context of the United States’ international investment agreement practice, the Trans-Pacific Partnership includes several new features – expanding regulatory space for states on environment, health and finance but also backtracking on an appellate mechanism. The author highlights developments that could have systemic impacts on investment agreements worldwide. 中文版
No. 159: “Brazil’s bilateral investment treaties: More than a new investment treaty model?,” by Nicolás M. Perrone and Gustavo Rojas de Cerqueira César
After resisting ratifying investment treaties in the 1990s, Brazil has now become a player in the international investment regime. This Perspective argues that the new Brazilian investment treaties are part of an alternative investment policy, and that policy’s future depends on its success and ability to influence other international negotiations. 中文版
No. 158: “A reading of intra-EU BITs in light of recent developments of EU law,” by Blerina Xheraj
This Perspective suggests that intra-EU BITs do not violate the principle of autonomy of the EU legal order but instead represent acceptable asymmetric economic relations among member countries. The author argues by analogy to developments on the Agreement on a Unified Patent Court and the EU mechanism of enhanced cooperation. 中文版
No. 157: “Investment treaty law, sustainable development and responsible business conduct: A fact-finding survey,” by Kathryn Gordon, Joachim Pohl and Marie Bouchard
How do sustainable development and responsible business conduct interact within international investment law? An analysis of over 2,100 IIAs and 1,100 treaty-based arbitration documents shows which IIAs refer to these concepts, how they relate to other IIA provisions and to what extent arbitrators refer to these issues in their decisions. 中文版
No. 156: “The case for harmonizing the international regulation of mining,” by Robert Milbourne
There is a clear need for international coordination of standards and policies in the mining sector. This Perspective addresses how harmonization may help to reduce arbitrage and promote natural resource investment in a way that minimizes negative impacts on communities and maximizes development gains. 中文版
No. 155: “Foreign divestment: What stays when multinationals leave?,” by Wolfgang Sofka, Miguel Torres Preto and Pedro de Faria
When an MNE closes its doors, workers may find themselves in demand or struggling, depending on the nature of their employment and the characteristics of the foreign affiliate itself. The authors recommend a targeted policy approach that focuses on transition assistance for the most vulnerable employees. 中文版
No. 154: “Bringing the state back in: India’s 2015 model BIT,” by Srividya Jandhyala
India’s new model BIT reflects a shift toward governing the conduct of foreign investors, and away from mere protection. The author considers how changes in the 2015 Model serve to reinforce the role of the state, and notes key challenges that may arise in practice. 中文版
No. 153: “Legitimizing expectations in arbitration through political risk analysis ,” by Robert Ginsburg
The author argues that the reasonableness of investors’ expectations should be based in part on socio-economic conditions in the host country at the time of the investment. While political risk analysis cannot guarantee specific outcomes, it can provide investors and tribunals with an analytical framework to establish the expectations of a reasonable investor. 中文版
No. 152: “Cost allocation in ICSID arbitration: theory and (mis)application,” by Matthew Hodgson
This Perspective on cost-allocation in investment arbitration argues that the “relative success” approach to cost allocation is dominant but is frequently misapplied in practice, and that there is a need for guidance on costs in the ICSID arbitration rules. 中文版
No. 151: “We need an international support programme for sustainable investment facilitation,” by Karl P. Sauvant
The WTO’s Trade Facilitation Agreement needs to be complemented by an international support program for sustainable investment facilitation. Key elements are outlined and approaches suggested. 中文版
No. 150: “FDI in Russia in difficult times,” by Thomas Jost
The ongoing political crisis between Russia and the West jeopardize the achievements in economic relations that have been made over the past two decades. Foreign direct investments in Russia which are essential to modernize its economy may be lost if the Russian government does not send clear signals to restoreconfidence of Western investors. 中文版
This Perspective considers the idea of a rule-of-law ratings mechanism by a designated agency, rating the degree of respect for the rule of law by domestic courts in a given country or region, in order to determine whether investor-state disputes should be resolved by national courts or investor-state dispute settlement. 中文版
No. 148: “Outward FDI does not necessarily cost domestic employment of MNEs at home: Evidence from Japanese MNEs,” by In Hyeock Lee, Shige Makino and Eunsuk Hong
Outward FDI does not necessarily reduce domestic employment — it often boosts it. Evidence from Japanese MNEs show that they increase domestic employment in Japan when they conduct market-seeking, strategic asset-seeking, or efficiency-seeking FDI to expand domestic operations into foreign countries, and hence enhance their competitive advantages. 中文版
No. 147: “An appellate body for international investment disputes: How appealing is it? ,” by Joachim Karl
One suggestion in the ISDS reform debate relates to the establishment of an appellate body. This Perspective considers that an ad-hoc appellate body agreed upon in new investment treaties would be the most promising alternative. However, only a permanent appellate body could ensure coherence and predictability in global arbitration practice. 中文版
No. 146: “Why we need a global appellate mechanism for international investment law,” by Anna Joubin-Bret
Establishing an appellate system for investment arbitration for the EU is a main area for the improvement of investor-state dispute settlement. This Perspective suggests that discussions about the desirability and feasibility of an appellate mechanism must be held in a multilateral context and apply to all treaties, not only selected few. 中文版
No. 145: “Toward arbitration between subnational units and foreign investors?,” by Charles-Emmanuel Côté
The ICSID Convention has envisaged arbitration between subnational units and foreign investors since its inception in 1966, but no such unit has ever been party to ICSID arbitration. The recent ratification of the Convention by Canada could trigger the emergence of this new sort of arbitration, bringing international investment law into unchartered territory. 中文版
No. 144: “Legitimacy in WTO law and investment arbitration: the role of the contracting parties,” by Herfried Wöss
International investment protection standards are the result of a “dilatory formula compromise,” i.e. a formal compromise without agreement on its precise content, due to historical reasons. Their development is mainly through arbitral awards and scholarly writings in the absence of the further involvement of the contracting parties, which raises legitimacy issues. 中文版
No. 143: “The escape motivation of emerging market multinational enterprises,” by Alvaro Cuervo-Cazurra and Ravi Ramamurti
The authors argue that FDI by emerging-market firms in advanced economies is motivated not just by “pull” factors, such as the host country’s large market or technical talent, but also by “push” factors, such as the home country’s weak institutions and reputation. We explain the latter, which we call “escape FDI.” 中文版
No. 142: “The challenges for Chinese FDI in Europe,” by Louis Brennan
This Perspective addresses Chinese foreign direct investment in Europe. It focuses on the major challenges that Chinese investors have faced in that host environment. These relate to the host region’s divergent characteristics, home country liability of origin, China’s OFDI regulation and the capabilities of the investing enterprises. 中文版
No. 141: “The other side of transparency,” by Sophie Nappert
Following up on the adoption of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, and on the eve of the Mauritius Convention on Transparency opening for signature, this Perspective queries whether states are adequately informed of, and prepared for, the practical aspects of increased transparency in investor-state arbitration proceedings. 中文版
No. 140: “The Transatlantic Trade and Investment Partnership, investor-state dispute settlement and China,” by Axel Berger and Lauge N. Skovgaard Poulsen
This Perspective argues that since China has been a strong proponent of investment arbitration for more than a decade, Beijing is likely to favor the mechanism in a future EU-China deal – irrespective of whether it is included in the Transatlantic Trade and Investment Partnership agreement. 中文版
No. 139: “Africa rising out of itself: The growth of intra-African FDI,” by Ralf Krüger and Ilan Strauss
Detailing the rise of intra-African FDI, the authors suggest that this has the ability to improve Africa’s competitiveness, but requires a combination of improved market access and industrial policies (related to cluster and infrastructure development and the use of local inputs) to ensure that host country domestic suppliers benefit. 中文版
No. 138: “Host governments should not treat state-owned enterprises differently than other foreign investors,” by Steven Globerman
Widespread skepticism from host country governments rests on the presumption that SOEs are motivated by non-commercial objectives. Even if true, the discipline of competitive pressures in the marketplace, along with existing regulations, ensures that the costs of inefficient behavior will be borne primarily by the SOE’s owners. 中文版
No. 137: “Locating production and income within MNEs: An alternative approach based on formulary apportionment,” by Dylan G. Rassier
Given the unique products and the complex global structure of some MNEs, the economic substance of transactions within MNEs is often subject to question under separate accounting. For statistical purposes, formulary apportionment is a viable alternative to separate accounting as a method for locating production and income within MNEs. 中文版
No. 136: “Canada’s non-reciprocal BIT with China: Would the US or Europe do the same?,” by Gus Van Harten
The Canada-China BIT requires Canada to open its economy to Chinese investors, while allowing China to retain a closed economy and to keep discriminating against Canadian investors. The treaty also facilitates confidential settlements and sacrifices a longstanding safeguard for Canada’s aboriginal peoples. 中文版
No. 135: “In defense of bilateral investment treaties,” by Stephen M. Schwebel
The exclusion of investor-state arbitration from the TTIP agreement would represent a regressive development in international investment law that is to be resisted rather than furthered. The key contentions advanced by critics of investor-state arbitration are exaggerated, and reform efforts should instead focus on its shortcomings. 中文版
No. 134: “The road to responsible investment treaties,” by Roel Nieuwenkamp and Kimmo Sinivuori
This Perspective proposes the integration of responsible business conduct through international investment agreements while protecting the interests of investors against maltreatment. Investment treaties can promote the OECD Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights by introducing carefully drafted clauses in new treaties. 中文版
No 133: “The crucial role of infrastructure in attracting FDI,” by Julian Donaubauer, Birgit Meyer and Peter Nunnenkamp
Based on a new global index on infrastructure, this Perspective shows that infrastructure is crucially important for developing countries’ attractiveness to FDI inflows. The identification of critical gaps in infrastructure strengthens the bargaining position of policymakers in these countries vis-à-vis foreign donors and multinational enterprises. 中文版
No 132: “Germany, the Transatlantic Trade and Investment Partnership and investment-dispute settlement: Observations on a paradox,” by Ralph Alexander Lorz
The TTIP and its ISDS provisions have come under pressure from countries that have embraced free trade agreements and investment protection, most notably Germany. The new political environment in Germany entails a major hazard for the agreement and will likely compel the sacrifice of ISDS to save its substance. 中文版
No 131: “How to deal with the growing incentives competition,” by Kenneth P. Thomas
The use of subsidies to attract investment costs government billions of dollars annually, making regulation urgent. While comprehensive limitations such as the EU’s are not likely soon, we should improve transparency, have major stakeholders promote incentive rules within preferential trade areas, strengthen WTO notifications, and ban relocation subsidies where possible. 中文版
No 130: “Good governance of third party funding,” by Catherine Kessedjian
No 129: “The Canada-China BIT 2012: Perspectives and Implications,” by Armand de Mestral
The Canada-China BIT could provide insight on the key issues to be discussed in a possible US-China BIT. A particularly controversial issue will be the terms of investor-state arbitration (ISA). But as ISA becomes increasingly controversial between developed democratic states, it may become harder to negotiate ISA with China. 中文版
No 128: “The China-EU BIT: The emerging ‘Global BIT 2.0’?,” by Wenhua Shan and Lu Wang
The China-EU BIT currently being negotiated may be the “Global BIT 2.0,” given that it will be the first new generation BIT that the EU and China conclude on their own initiative and is likely to significantly impact BIT practice worldwide. 中文版
This Perspective presents a unique survey of American public opinion on ICSID, and via a survey experiment demonstrates that attempts to increase public support by Republicans or Democrats would likely backfire. Only bi-partisan framing of ICSID can positively move public opinion. 中文版
The 2014 UNCITRAL Transparency Rules and Transparency Convention are a good first step toward greater transparency in investor-state arbitrations. This Perspective encourages other institutions to follow suit and discusses how the Rules and Convention can be a model for broader reforms of the investment regime. 中文版
While generous national incentive schemes may help attract FDI, the withdrawal of incentive schemes or subsequent changes thereto affecting foreign investors might be challenged under IIAs, with host countries facing the risk of being overwhelmed with investment arbitration claims. 中文版
Labor provisions in IIAs should focus on corporate activity rather than governmental action. In order to encourage corporations to embrace the highest available international standards, labor provisions in IIAs should make reference to multilateral instruments that entail market-based incentives to promote labor rights on a CSR basis. 中文版
In allocating costs in investment treaty arbitration, a “loser-pays” principle would incentivize economically-rational behavior by parties, including when deciding whether to bring a claim and/or settle. This principle would promote greater efficiency in investment treaty arbitration. 中文版
No 122: “The rise of FDI income, and what it means for the balance of payments of developing countries,” by Miguel Pérez Ludeña
FDI is now the largest external liability in developing countries and is being paid through outflows of FDI income, or profits of foreign companies. These profits have grown to a point in which they may play an important role in a potential balance of payments crisis. 中文版
No 121: “China needs to complement its “going-out” policy with a “going-in” strategy,” by Karl P. Sauvant and Victor Z. Chen
The authors suggest the main components of a going-in strategy for China’s outward FDI, to assuage skeptics, avoid backlash and build trust in host country communities. 中文版
No. 120: “Which host country government actors are most involved in disputes with foreign investors?,” by Jeremy Caddel and Nathan M. Jensen.
Using data on international investment arbitration, the authors catalog the types of state actors involved in disputes and the actions that lead to arbitration. We find that the majority of disputes are the result of actions taken by the executive branch. 中文版
No. 119: “The Transatlantic Trade and Investment Partnership: A critical perspective,” by Rainer Geiger.
The Transatlantic Trade and Investment Partnership offers great opportunity. This Perspective discusses the conditions for successfully concluding the agreement while avoiding the pitfalls of past investment treaty negotiations. 中文版
The concentration of FDI in India has increased since the reform program in the early 1990s as an ever larger number of districts do not attract any projects and the intensive margin of concentration has increased. These trends hold for essentially all types and sources of FDI, while the average level of concentration varies considerably between these types and sources. 中文版
In discussions about the need for, and possible role of, a multilateral framework for investment, existing obligations under the General Agreement on Trade in Services (GATS) are seldom acknowledged. However, some two-thirds of the world’s FDI stock are in services and, thus, potentially subject to the GATS which, in addition to MFN clauses in BITs, operates as an external “multilateralizer” of trade and investment conditions in services. 中文版
Looking at a rear-view mirror, skeptics assert that efforts to create a plurilateral Investment Framework Agreement (IFA) are doomed. We argue that conditions on the ground have changed: in the 2010s, unlike the 1990s, many countries would welcome an IFA under WTO auspices. 中文版
The universe of international investment agreements continues to grow, albeit at a slow pace and with a focus on regional agreements. This may further reduce the prospects for multilateral investment rulemaking and perpetuate the existing structure of the IIA regime. 中文版
Host governments have often sought some equity in mining and other foreign investment projects, but as shareholders they have rarely gained what they anticipated. Only in special cases might the benefits to governments outweigh the risks and often unanticipated costs governments encounter. 中文版
In newer-style investment treaties, states are increasingly protecting and enhancing their role in interpreting and applying their treaties. This evidences an important shift underway in the investment treaty system: the recalibration of interpretive authority between treaty parties and arbitral tribunals.中文版
No. 112: ”The China-United States BIT negotiations: A Chinese perspective,” by Sheng Zhang.
This Perspective adds another dimension to the ongoing China-US BIT negotiations from a Chinese perspective. The negotiation of a successful BIT requires best endeavors from both sides, and China’s recent FDI policy movements toward a more liberal regulatory framework point to increased coherence in the positions of the two countries in the context of the BIT negotiations. 中文版
No. 111: “Minority rules: State ownership and foreign direct investment risk mitigation strategy,” by Barclay E. James and Paul M. Vaaler.
In countries where policies protecting private investor rights are more susceptible to change, substantial minority state ownership in a project can substantially decrease overall investment project risk. Sometimes, some state ownership in a project is just the thing to keep the state from changing important terms in the original agreement to the detriment of private co-investors. 中文版
No. 110: “Beware the discretionary choices of arbitrators,” by Gus Van Harten.
This Perspective summarizes recent research on how investment treaty arbitrators have used their power to review sovereigns. It suggests a need for more scrutiny of arbitrators’ performance by other actors, such as national associations of legislators or judges. 中文版
No. 109: “Lessons from South Africa’s BITs review,” by Xavier Carim.
Following an extensive review, South Africa has decided to modernise its investment protection regime in a manner that balances strong protection for investors with Constitutional requirements to safeguard the public interest, and promote sustainable development and inclusive growth. This has involved developing a new investment bill that will strengthen and clarify protection provided to all investors in South Africa as well as terminating bilateral investment treaties that pose unacceptable risks to democratic policy making in South Africa, without delivering any discernible economic benefit. 中文版
No. 108: “Achieving sustainable development objectives in international investment: Could future IIAs impose sustainable development-related obligations on investors?,” by John Gaffney and Janani Sarvanantham.
A number of international organizations have adopted varying approaches to the promotion of sustainable development in international investment – these range from non-binding principles and guidelines to design options for the integration of sustainable development objectives into international investment agreements (IIAs). The proposed implementation of these IIA sustainable development design options has potentially significant implications for the content of future IIAs, as well as for investor-State dispute settlement. 中文版
No. 107: “Go out and manufacture: Policy support for Chinese FDI in Africa,” by Nikia Clarke.
Chinese and African governments have reasons to support the growth of Chinese manufacturing FDI on the continent. However, policy interventions should be better aligned with the realities of Chinese investor strategies, which target localizing production for African markets, and African industrial development goals, which require better integration of manufacturing FDI into domestic economies. 中文版
No. 106: “Three challenges for China’s outward FDI policy,” by Karl P. Sauvant.
China faces three main challenges: in the short-term, dealing with the growing skepticism with which its FDI is perceived in some host countries; in the medium-term, responding to efforts to discipline the use of home country measures; in the long-term, contributing to the establishment of a multilateral framework for investment. 中文版
No. 105: “Are trade-law inspired investment rules desirable?,” by Marino Baldi.
While bilateral investment treaties have traditionally focused on investment protection, modern investment agreements have increasingly included rules on liberalization and development, such as sustainable investment. Given the complexities of negotiating all these elements under one instrument, we should consider a multiple-instruments solution. 中文版
No. 104: “Downstream processing in developing countries: Opportunity or mirage?,” by James Bond.
Downstream processing of oil, gas and minerals does not contribute nearly as much to the local economy as many leaders of resource-rich countries believe. A better strategy than promoting foreign investment in downstream processing is to nurture clusters of resource-related firms by creating a business-friendly investment environment and investing in targeted infrastructure. 中文版
No. 103: “Toward a multilateral framework for investment,” by Nicolle Graugnard.
Ahead of this year’s G20 Summit, global business is recommending that the G20 agree upon a set of recommendations governing a G20 multilateral investment framework. From the perspective of the International Chamber of Commerce, this recommendation represents a long-term objective of establishing a comprehensive high-standard regime that businesses can rely upon to generate sustainable growth. 中文版
No. 102: “The futile debate over a multilateral framework for investment,” by Axel Berger.
A multilateral framework for investment (MFI) is not suitable for effectively solving the most pressing challenges in the current international investment regime. It would be more promising to tackle these challenges in the context of regional co-operation, supplemented by co-ordination efforts on the global level. 中文版
No. 101: “The need for an international investment consensus-building process,” by Karl P. Sauvant and Federico Ortino.
As discussions intensify to improve the international investment regime, it would be desirable to initiate an independent, open-minded, multi-stakeholder international investment consensus-building process to examine the range of issues associated with international investment law, to determine systematically what the concerns are, to discuss how and where to address them, and to propose solutions. 中文版
No. 100: “Cost allocation in investment arbitration: Back toward diversification,” by Baiju S. Vasani and Anastasiya Ugale.
Some investment arbitration tribunals in the recent years have opined in favor of establishing a single default cost allocation rule based on the parties’ relative success in arbitration. The effect of such a default rule, however, might not necessarily resonate with the policy goals of various arbitration fora, ICSID in particular, and calls for harmonization should be reconsidered. 中文版
No. 99: “The global significance of transatlantic investment rules,” by Jonathan (Josh) S. Kallmer.
A Transatlantic Trade and Investment Partnership (TTIP) between the EU and US could be unprecedented in both scale and scope. It is critical that negotiators take advantage of the opportunity that the TTIP presents for the world’s two largest economies indirectly to craft state-of-the-art global standards for cross-border investment, particularly in the areas of forced localization measures, government influence and control, and investor-state dispute settlement. 中文版
No. 98: “Do host countries really benefit from inward foreign direct investment?,” by Byungchae Jin, Francisco García and Robert Salomon.
The supposed benefits of IFDI to host countries are nuanced and not always positive. IFDI can crowd out local innovation, relegating local firms to less innovative, less profitable market niches. Whether IFDI provides long-term growth outcomes for host countries is therefore an open question. 中文版
No. 97: “Myopic reliance on natural resources: How African countries can diversify inward FDI,” by Abdoul’ Ganiou Mijiyawa.
Most of Africa’s inward foreign direct investment (IFDI) flows occur in the natural resources sector (i.e. mining, oil and gas). However, Africa has the potential to attract IFDI into other sectors such as labor-intensive manufacturing, agro-processing and services. To improve their attractiveness as destinations for more diverse IFDI, African countries must address two deficits: the infrastructure deficit and the skills deficit. 中文版
No. 96: “Infrastructure for ore: Benefits and costs of a not-so-original idea,” by Louis T. Wells.
Infrastructure-for-resources deals have been widely criticized, based on few data. But host countries can rigorously compare them with alternatives. Better analysis would lead to better decisions and might convince critics that they can be beneficial, for their financial contributions and for ensuring that resource wealth is converted to productive investment. Still, the deals may pose significant risks for investors. 中文版
No. 95: “How do consumer-focused multinational enterprises affect emerging markets?,” by Terutomo Ozawa.
Consumption-focused MNEs that have originated mostly since the end of World War II spread consumerism globally, prompting the Smithian goal of economic growth. Now that late industrializers have swiftly been catching up to join the ranks of advanced economies, these MNEs are eagerly setting up shop in emerging markets. This Perspective explores the general entry patterns of such MNEs and their potential impact on emerging markets. 中文版
No. 94: “Common structures of investment law in an age of increasingly complex treaty-making ,” by Stephan Schill and Marc Jacob.
This Perspective challenges the idea that international investment agreements (IIAs) as a whole move from traditional “lean” (European-style) IIAs to re-calibrated “balanced” (North American-style) treaties. Instead, the IIA landscape is becoming increasingly multifaceted and complex, with different states following different models. This casts doubt on the idea that there are common structures underpinning investment treaties. Yet, there are a number of centripetal forces that hold investment law together at the level of principles and dispute settlement. 中文版
No. 93: “How the private sector is changing Chinese investment in Africa,” by Xiaofang Shen.
The significance of Chinese private-sector investment into Africa is already visible in the manufacturing sector in some parts of the continent. African host country governments should respond with proactive development policies and strategies to maximize benefits. 中文版
No. 92: “Labor provisions in bilateral investment treaties: Does the new US Model BIT provide a template for the future?,” by Vid Prislan and Ruben Zandvliet.
The United States is one of the few countries to have a labor provision in its Model BIT. The 2012 Model includes a more elaborate labor provision than its predecessor. The scope of applicable labor standards and the level of commitment are more demanding than in the 2004 Model and most other (model) BITs. But unlike US FTAs, it lacks a clear obligation to adopt and maintain ILO standards as a minimum, and does not allow disputes to be submitted to arbitration. 中文版
No. 91: “The Arab Awakening, act II: Time to move more boldly on investment,” by Anthony O’Sullivan and Alexander Böhmer.
The late 2010 Arab Awakening in the MENA region was accompanied by a significant and persisting drop in FDI. MENA governments must take action to boost investment by reaffirming their commitment to international investment principles, accelerating regional integration and implementing targeted investment promotion measures. In the longer term, they will need to work in concert with business to implement broader reforms that strengthen governance, tackle corruption and promote skills development so that FDI has a lasting impact on growth and job creation. 中文版
No. 90: “A business perspective on a China – US bilateral investment treaty,” by Shaun E. Donnelly.
While welcoming the earlier Perspective (No. 85, December 17, 2012) on the ongoing US-China BIT negotiations, an alternative, business-oriented approach should be taken. It is more important to secure a high-standard agreement, with strong investor protections and dispute settlement provisions, than to seek a quick agreement by splitting the difference on key issues. The 2012 US Model BIT provides a good template for a final agreement. 中文版
No. 89: “Investor-state dispute settlement: A government’s dilemma,” by Joachim Karl.
The landscape in which investor-state dispute settlement (ISDS) takes place is undergoing profound change. Although discontent with the current ISDS system is on the rise, most countries have so far not seen a need to modify ISDS provisions in international investment agreements. To move forward, countries should take a pro-active approach toward reforming the ISDS mechanism. 中文版
No. 88: “The compensatory nature of moral damages in investor-state arbitration,” by Jarrod Wong.
The failure of investment tribunals to grasp the compensatory nature of moral damages awarded to investors has led to doctrinal and practical difficulties in the treatment of moral damages. Many such difficulties can be addressed by identifying the specific moral injury suffered — whether mental or reputational — and awarding commensurate compensation rather than satisfaction, restitution or punitive damages. 中文版
A new proposal for an internal regulation sheds some light on the European Commission’s approach to future bilateral investment treaties to be concluded with the EU, on which negotiations are already underway. Of particular significance in this context is the Commission’s desire to reserve the determination of respondent status in future arbitral proceedings for itself. It shows that the EU might strive to modify established mechanisms of investor-state arbitration to fit its internal needs. 中文版
Disenchantment with investment law’s traditional laissez-faire liberalism is influencing the EU’s investment policies. In particular, evidence suggests that future EU investment agreements will aim to emulate EU FTAs in incorporating regulatory flexibility, pointing towards a policy shift in Europe resulting from a search for a new balance. 中文版
No. 85: “A China – US bilateral investment treaty: A template for a multilateral framework for investment?,” by Karl P. Sauvant and Huiping Chen.
A bilateral investment treaty between China and the US would not only be of importance for the economic relations of the world’s two largest economies, but could also become a template for a multilateral framework for investment. This Perspective looks at key outstanding issues in the China-US negotiations and identifies alternative compromises. 中文版
No. 84: “Inward foreign direct investment: Does it enable or constrain domestic technology entrepreneurship?,” by Saurav Pathak, André Laplume and Emanuel Xavier-Oliveira.
There are potential negative effects of FDI on domestic technology-based entrepreneurship in developing countries. Crowding effects in the labor and product markets combined with stronger intellectual property regimes that prevent knowledge spillovers may stifle technology entrepreneurship where it is needed most. 中文版
No. 83: “Untying the land knot: Turning investment challenges into opportunities for all citizens,” by Xiaofang Shen.
Land-use conflicts also occur frequently outside the agricultural sector. In dealing with these conflicts, systematic change is necessary to lead to a fair, efficient and transparent system that both encourages investment and safeguards public interests. Diverse examples demonstrate that, although such change is difficult, it is possible and desirable. 中文版
No. 82: “Evaluate Sustainable FDI to Promote Sustainable Development,” by John M. Kline.
Prescriptions to increase the role of FDI in promoting sustainable development generally focus on the macro level — getting policies right and otherwise improving the investment climate. These steps are necessary but not sufficient. Effective implementation processes, especially at the micro project level, are also essential to encourage FDI that matches host country development needs and priorities. 中文版 日本語版
No. 81: “Is China’s outward investment in oil a global security concern?,” by Ilan Alon and Aleh Cherp.
The dramatic increase in investment by Chinese SOEs in overseas oil assets is primarily driven by energy security concerns. Whether such investment will benefit or harm energy security of other countries is hotly contested. On one hand, this investment can supplement the overall lack of investment in the sector, benefiting all consumers. On the other hand, it may exacerbate environmental and political problems associated with fossil fuels. 中文版 日本語版
No. 80: “State-controlled entities as “investors” under international investment agreements,” by Jo En Low.
A review of the definition of “investor” and investor-state dispute resolution clauses in 851 international investment agreements (IIAs) reveals that, except in two cases, state-controlled entities (SCEs) (including sovereign wealth funds and state-owned enterprises) have equivalent standing to their purely private counterparts as “investors” under such IIAs. This article highlights the various ways in which SCEs are covered under the definition of “investor”. 中文版 日本語版
No. 79: “Absent from the discussion: The other half of investment promotion,” by Lise Johnson.
Investment treaties can be tools for promoting the quantity and quality of foreign investment that furthers sustainable development. But to do so, they should move beyond their current focus on simply regulating the conduct of host states, and include appropriate home-country commitments to facilitate and encourage outward investment. 中文版 日本語版
No. 78: “Reconciling IMF rules and international investment agreements: An innovative derogation for capital controls,” by Elizabeth L. Broomfield.
In the absence of an international framework governing capital controls, a conflict has developed due to the different approaches towards such controls taken by various international organizations and international investment agreements (IIAs). IIAs should incorporate derogations for countries when treaty obligations conflict with IMF recommendations to impose controls in response to severe economic hardship. 中文版
No. 77: “A new economic nationalism? Lessons from the PotashCorp decision in Canada,” by Sandy Walker.
Foreign investors must be alert to the possibility that political sensitivities may impact foreign investment review processes, hence jeopardizing a small number of deals involving perceived national champions. One example, which underlines that politics can occasionally hijack the review of foreign investments, is the Canadian Government’s rejection of BHP Billiton’s takeover of Potash Corporation. 中文版
No. 76: “A good business reason to support mandatory transparency in extractive industries,” by Perrine Toledano and Julien Topal.
The Cardin-Lugar Transparency Amendment is a promising step toward ending the resource curse by improving accountability and access to information for both citizens and investors. The Amendment has run into heavy corporate opposition, and its implementation has been much delayed. However, there is a business case for mandatory transparency requirements. 中文版
No. 75: “Attracting FDI through BITs and RTAs: Does treaty content matter?,” by Axel Berger, Matthias Busse, Peter Nunnenkamp, and Martin Roy.
The authors analyze empirically whether the impact of BITs and RTAs on bilateral FDI flows depends on the inclusion of two legal innovations: investor-state dispute settlement (ISDS) and pre-establishment national treatment (NT) provisions. Indeed, they find strong evidence that liberal NT provisions promote FDI. ISDS mechanisms appear to play a minor role. Surprisingly, the impact of similar investment provisions on FDI depends on whether these provisions are contained in RTAs or BITs. 中文版
No. 74: “Starting anew in international investment law,” by M Sornarajah.
There is a crisis in international investment law brought about by rapid changes in the economic order resulting in movements of capital from erstwhile developing countries like China and India into developed ones. This is accentuated by the stances taken in investment treaty arbitration that restrict regulatory control. The reaction has been to bring about so called “balanced treaties” that neither secure investment protection nor bring about clear rules on regulatory control. There is a need for a new beginning. 中文版
No. 73: “Law at two speeds: Legal frameworks regulating foreign investment in the global South,” by Lorenzo Cotula.
The global legal system regulating foreign investment in lower-income countries is more geared towards enabling secure transnational investment flows than it is towards ensuring that these flows benefit people in recipient countries. There is a need to improve national and international law safeguards for rights that may be affected by investment flows, and to strengthen local capacity to exercise those rights and get a better deal from incoming investment. 中文版
No. 72: “Roll out the red carpet and they will come: Investment promotion and FDI inflows,” by Torfinn Harding and Beata Javorcik.
Foreign direct investment flows to developing countries are hindered by many factors. Two of these factors — the mere lack of information and red tape — could be easily remedied through investment promotion efforts. 中文版
No. 71: “Much ado about nothing? State-controlled entities and the change in German investment law,” by Thomas Jost.
Despite a tightening of German foreign investment law in 2009 in reaction to the growing importance of state controlled entities and national security concerns, Germany has remained open for FDI. So far German authorities have handled the new law carefully. But, was the change necessary? 中文版
No. 70: “FDI, catch-up growth stages and stage-focused strategies,” by Terutomo Ozawa.
For the initial stage of catch-up growth, the “FDI-led takeoff” is an expedient alternative to the traditional infant-industry protection approach. Higher stages call for more nuanced, national-interests-dictated strategies to enhance domestic knowledge capability. A stages perspective cannot be overemphasized. 中文版
After a long period during which governments made the national and international frameworks for foreign investors more welcoming, a number of indicators suggest that a rebalancing is taking place toward an approach that is more protective of sovereigns, allowing governments more policy space to regulate FDI in the public interest. 中文版
No. 68: “Economic patriotism: Dealing with Chinese direct investment in the United States,” by Sophie Meunier et al..
As Chinese FDI in the United States increases, a few investments are likely to attract negative attention. However, even though hosting Chinese FDI in the United States is not free from risk, the benefits outweigh the costs. As such, the United States should implement policy recommendations to welcome Chinese FDI, while dealing with its potential risks to limit a possible political backlash. 中文版
No. 67: “The Arab Spring: How soon will foreign investors return?,” by Paul Antony Barbour, Persephone Economou, Nathan M. Jensen, and Daniel Villar.
The Arab Spring dramatically increased investors’ perceptions of political risk in MENA. An examination of these perceptions indicates long-run optimism that political transitions in the region — if democratic and coupled with political stability — could increase FDI and contribute to MENA’s economic development. 中文版
No. 66: “Does it matter who invests in your country?,” by Kalman Kalotay.
“Indirect” FDI – investment in which immediate investors differ from ultimate owners – plays an increasingly important role in corporate strategies and financial management. This Perspective analyses its different forms, explores its implications for development and suggests ways to minimize the potential negative impact of such investment. 中文版
No. 65: “The standing of state-controlled entities under the ICSID Convention: Two key considerations,” by Mark Feldman.
ICSID tribunals likely will need to address with greater frequency the fundamental issue of whether disputes arising from SCE investments fall within the scope of the ICSID Convention. To help preserve clear ICSID Convention boundaries — which exclude public foreign investment disputes between states — ICSID tribunals should consider not only the nature, but also the purpose, of SCE investments. 中文版
No. 64: “State-controlled entities control nearly US$ 2 trillion in foreign assets,” by Karl P. Sauvant and Jonathan Strauss.
State-controlled entities (SCEs) — especially state-owned enterprises (SOEs) — are important players in the world FDI market. Among the 100 largest MNEs from developed countries and the 100 largest from emerging markets, at least 49 are SOEs. They control nearly US$ 2 trillion in foreign assets, the bulk of them by MNEs headquartered in developed countries. Care needs to be exercised that regulatory initiatives regarding SCEs do not lead to a fragmentation of the international investment law regime. 中文版
No. 63: “Is Chinese FDI pushing Latin America into natural resources?,” by Miguel Pérez Ludeña.
Chinese direct investments in Latin America reached US$15 billion in 2010, 90% of which was in the extractive industries. An analysis of the figures shows that it is mainly through trade, rather than through FDI that China is influencing South America’s productive structure. Moreover, there is potential for Chinese FDI to diversify into other sectors, especially in infrastructure construction and manufacturing for the Brazilian market. 中文版
No. 62: “The unbalanced dragon: China’s uneven provincial and regional FDI performance,” by Karl P. Sauvant, Chen Zhao and Xiaoying Huo.
This Perspective ranks all Chinese provinces in terms of their performance in attracting foreign direct investment, examines the reasons for the high unevenness of this performance and makes some policy suggestions on how to deal with it. 中文版
No. 61: “Different investment treaties, different effects,” by Clint Peinhardt and Todd Allee.
Until recently, quantitative assessments of International Investment Agreements (IIAs) have tended to treat them as interchangeable. Such assessments assume that the only measure of investor protections encoded in IIAs is whether a treaty had been signed and/or entered into force. However, the actual investment effects of investment treaties depend greatly on context. 中文版
No. 60: “National companies or foreign affiliates: Whose contribution to growth is greater?,” by Alice H. Amsden.
National firms fulfill functions that foreign affiliates are less likely to undertake. For this reason, there is a growth/efficiency justification for government programs designed to support and promote national companies (public and private) as opposed to, and in competition with, opening the doors to MNEs. 中文版
No. 59: “The (lack of) women arbitrators in investment treaty arbitration,” by Gus Van Harten.
Investment treaty arbitration appears to be a boy’s club. Just 4% of individuals appointed as arbitrators in known cases to May 2010 were women. This casts doubt on the system’s ad hoc and partly-privatized appointments process. A roster-based model would enable a more deliberative and merit-based process of appointments and ensure public accountability and independence in the system. 中文版
No. 58: “The public law challenge: Killing or rethinking international investment law?,” by Stephan W. Schill.
The current legitimacy crisis of international investment law results primarily from the friction investor-state arbitration creates with domestic public law values. As a response, arbitrators should enculturate public law thinking. They should draw on comparative public law when applying investment treaties and reconsider their role as public law adjudicators with concomitant responsibilities for the entire system of international investment protection. 中文版
No. 57: “Nation states and nationality of MNEs,” by Seev Hirsch.
Do nation states have an economic interest in becoming home countries to MNEs? This Perspective’s tentative answer to the questions is “yes.” Other things being equal, extension of global reach, achieved through outgoing foreign direct investment by home country enterprises, is likely to more than make up for the tax losses and diminution of sovereignty these countries may experience. גרסה עברית 中文版
No. 56: “Towards the successful implementation of the updated OECD Guidelines for Multinational Enterprises,” by Tadahiro Asami.
Manfred Schekulin and John Evans have each written Perspectives discussing the 2011 update to the OECD’s Guidelines for Multinational Enterprises. The Guidelines have several potential impacts, including impacts on MNEs’ interactions with their supply chains. Further, to be successful, it is important that the Guidelines are incorporated into MNEs’ codes of conduct. It is also essential for emerging markets to adhere to the Guidelines. 中文版
No. 55: “FDI stocks are a biased measure of MNE affiliate activity: A response,” by Mira Wilkins.
The term FDI is often used loosely. This Perspective explains the historical genesis of that loose use and the relationship between FDI and MNEs. FDI stock is one of many measures of MNE activities, but has advantage over the others, since we have long, albeit imperfect, series on FDI stock. Handled with care, along with a keen recognition of the data limitations, FDI continues to serve as one excellent indicator of MNE activities. 中文版
No. 54: “Investment incentives and the global competition for capital,” by Kenneth P. Thomas.
Investment incentives (subsidies designed to affect the location of investment) are a pervasive feature of global competition for foreign direct investment. This Perspective analyzes what is known about the extent and cost of incentives used as well as the potential efficiency, equity, and environmental consequences of using incentives. Finally, it analyzes methods of controlling incentives, the most successful of which is embodied in European Union regional aid policy. 中文版
No. 53: “Knowledge, FDI and catching-up strategies,” by Francisco Sercovich.
There are policies that drive catching-up industrialization other than, but related to, those focused on FDI inflows. The shortening of catching-up periods owes much to the increasing effectiveness of policies addressing education and training, entrepreneurship development and domestic innovation and technology diffusion. FDI inflows work best when those policies are in place. Domestic absorption and innovative capability development policies are also essential. 中文版
No. 52: “FDI in retailing and inflation: The case of India,” by Nandita Dasgupta.
India’s food price inflation is a major driving factor behind the country’s overall accelerating inflation. As demonstrated by experiences of other countries, the recent move of the Indian Government to allow FDI in multi-brand retailing is a step in the right direction, transforming the way perishable agricultural produce is acquired, stored, preserved, and marketed — and thus helping to control India’s persistent food inflation. 中文版
No. 51: “Greek FDI in the Balkans: How is it affected by the crisis in Greece?,” by Persephone Economou and Margo Thomas.
Greece accounts for only 6% of the Balkan countries’ combined inward FDI stock, but Greek banking presence in the Balkans is significant. The sovereign debt crisis and recession in Greece are having a negative effect on Greek FDI into the Balkans, but it is the reduced lending by Greek bank foreign affiliates or their possible withdrawal that will have a bigger impact on the local economies. 中文版
No. 50: “Responsible business conduct: Re-shaping global business,” by John Evans.
The Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development (OECD) were updated in 2011. Trade unions are calling on the OECD and the 42 adhering governments to ensure that the new Guidelines help close the global governance gaps that leave millions of workers around the world facing hardship and insecurity and denied access to their fundamental rights. 中文版
No. 49: “Chinese FDI in the United States is taking off: How to maximize its benefits?,” by Thilo Hanemann and Daniel H. Rosen.
China’s outward foreign direct investment (OFDI) grew rapidly in the past decade, but flows to developed economies have been limited. Now China’s direct investment flows to the United States are poised to rise substantially. This new trend offers tremendous opportunities for the U. S., provided policymakers take steps to keep the investment environment open and utilize China’s new interest productively. 中文版
No. 48: “The new Dutch sandwich: The issue of treaty abuse ,” by George Kahale, III.
Years ago, international tax lawyers introduced us to the term “Dutch sandwich.” The concept was to sandwich a Dutch company between an investor from country A and its investment in country B. The combination of the extensive network of Dutch tax treaties and investor-friendly domestic Dutch tax law meant that country A’s investor could reduce withholding tax on dividends out of country B and perhaps eliminate capital gains tax altogether by structuring its investment through a Dutch company. 中文版
No. 47: “Shaping global business conduct: The 2011 update of the OECD Guidelines for Multinational Enterprises,” by Manfred Schekulin.
On May 25, 2011, US Secretary of State Hillary Clinton joined ministers from members of the Organisation of Economic Co-operation and Development (OECD) and developing economies to celebrate the Organisation’s 50th anniversary and agree on an update of the OECD Guidelines for Multinational Enterprises, the fifth revision since their adoption in 1976. This marked the culmination of an intense one-year negotiating process involving a large number of stakeholders, international organizations and emerging economies. 中文版
No. 46: “Beyond treasuries: A foreign direct investment program for U.S. infrastructure ,” by Geraldine McAllister and Joel H. Moser.
In his jobs address to a joint session of Congress, President Obama returned to a familiar theme: a call for nontraditional infrastructure investment as a generator of economic growth and, ultimately, jobs. There is no assurance that domestic private capital investment alone is sufficient to reverse the degradation of the nation’s infrastructure and as host to the largest flows of inward foreign direct investment (FDI), it is time that the United States employs this critical source of capital in tackling the nation’s infrastructure deficit. 中文版
No. 45: “FDI stocks are a biased measure of foreign affiliate activity,” by Sjoerd Beugelsdijk, Jean-François Hennart, Arjen Slangen, and Roger Smeets.
Researchers often call the value added (VA) in a host country by firms based in another country foreign direct investment (FDI) and use FDI stocks and flows from a country’s balance of payments to measure it. Because FDI stocks and flows only measure the financial flows between parents and their foreign affiliates, excluding locally raised funds, and because they omit the contribution of local labor to affiliate VA, they systematically underestimate that VA in more developed countries and thus are a biased measure of multinational activity. 中文版
No. 44: “Environmental concerns in international investment agreements: The ‘new era’ has commenced, but harmonization remains far off,” by Kathryn Gordon and Joachim Pohl.
The authors present findings of a large-sample survey of references to environmental concerns in international investment agreements carried out by the OECD. 中文版
No. 43: “The world economic crisis as a changed circumstance,” by Hermann Ferré and Kabir Duggal.
In September 2008, the bankruptcy of Lehman Brothers sent financial markets in the United States into a spin. Credit markets froze as banks began to mistrust counterparties, not knowing the extent of toxic assets in loan portfolios that could lead to another major bank collapse. The crisis quickly spread around the world. Governments were urged to take drastic measures. Experts discussed the possible nationalization of portions of the U.S. banking industry and other sectors. Other countries also considered measures to save key industries. 中文版
No. 42: “From the FDI Triad to multiple FDI poles?,” by Persephone Economou and Karl P. Sauvant.
Twenty years ago, in the inaugural issue of the World Investment Report, the United Nations highlighted a shift in the global pattern of foreign direct investment (FDI) from bipolar, dominated by the United States and the European Community, to tri-polar (the FDI Triad), dominated by the European Community, the United States and Japan. 中文版
No. 41: “Emerging challengers in knowledge-based industries? The case of Indian pharmaceutical multinationals,” by Gert Bruche.
The growth of outward foreign direct investment (FDI) from developing countries and of a new generation of “emerging multinational enterprises” (EMNEs) has stimulated a flurry of publications. EMNEs have been portrayed as on their way to adulthood, latecomers that leapfrog into advanced positions, emerging giants, and challengers of conventional multinational enterprises (MNEs) from advanced economies. 中文版
No. 40: “Why and how least developed countries can receive more FDI to meet their development goals,” by Ken Davies.
The 48 least-developed countries (LDCs), most of them in sub-Saharan Africa and a few in Asia, need foreign direct investment (FDI) to help meet their development targets. The FDI they now receive, although inadequate, is enough to demonstrate that investors see potential in them. It is therefore realistic for LDCs to seek more FDI, but they need to enhance their investment environments to attract it in the much greater quantities required. Donors can help by targeting official development assistance (ODA) on investment in human capital and supporting governance improvements. Meanwhile, LDCs should establish effective investment promotion agencies (IPAs). 中文版
Economic development has recently been time-compressed due to an ever-accelerating cross-border dissemination of industrial knowledge, especially at the hands of MNEs. And a new “open-door” strategy of industrial catch-up has come to be adopted, as best exemplified by China’s FDI-led take-off, a strategy that is designed to capitalize on the profit-seeking activities of multinationals. This new approach needs to be conceptualized as such, replacing the time-honored conventional “closed-economy” doctrine of infant-industry protection (or import substitution). 中文版
No. 38: “Responsible agricultural investment: is there a significant role for the law to promote sustainability? ,” by Nicolás Marcelo Perrone.
Today, the world food situation remains delicate. International investment and MNE involvement could be part of the solution to this problem. However, there are many concerns regarding the effects of these activities in host countries. An adequate interpretation of the Principles for Responsible Agricultural Investment could serve to promote sustainable foreign investment in agriculture. 中文版
No. 37: “The coming harmonization of climate change policy and international investment law,” by Daniel M. Firger.
The author examines recent trends in international climate finance and foreign direct investment to identify connections, and potential areas of harmonization, between the two regimes. On the one hand, international climate policy is emphasizing the growing role of private sector investment in clean energy and sustainable development. On the other hand, international investment law is changing to take account of social and environmental goals, including climate mitigation. 中文版
No. 36: “Are resurging state-owned enterprises impeding competition overseas?,” by Nilgün Gökgür.
There are no up-to-date systematic data on the size, composition, ownership structure, and economic weight of state-owned enterprises (SOEs), so we are unable to assess the impact of SOE performance on stakeholders in domestic and overseas markets. Yet there is sufficient evidence of their expansion, especially following the 2008 financial crisis. Emerging markets, led by China, are now increasingly encouraging their SOEs to expand globally as multinational enterprises (MNEs). 中文版
No. 35: “Is the party-appointed arbitrator a ‘pernicious institution’? A reply to Professor Hans Smit,” by Giorgio Sacerdoti.
Prof. Smit has expressed the view that eliminating party-appointed arbitrators would be beneficial for the integrity of the dispute settlement mechanism, especially in the investment field, because it would avoid any doubt of partiality and complacency. The author argues that these concerns can be met by the application of conflict-of-interest rules, obligations to disclose and oversight by arbitral institutions while retaining the appointment of arbitrators by parties as an essential valuable feature of arbitration as opposed to adjudication. 中文版
No. 34: “The backstory of China and India’s growing investment and trade with Africa: Separating the wheat from the chaff,” by Harry G. Broadman.
Common misconceptions about China’s and India’s increasing FDI in Africa have arisen because of a lack of systematic evidence-based analysis. Empirically-derived data, including on comparator countries, need to be rigorously analysed within an objective and coherent framework so that policy conclusions can be drawn which will benefit the many stakeholders involved. 中文版
No. 33: “The pernicious institution of the party-appointed arbitrator,” by Hans Smit.
As arbitration has grown by leaps and bounds, so has the role of the party-appointed arbitrator. Surprisingly, this has not led to increased inquiry into the appropriateness of having arbitrators appointed by the parties in general, or in arbitrations against states in particular. 中文版
No. 32: “State-controlled entities as claimants in international investment arbitration: an early assessment,” by Michael D. Nolan & Frédéric G. Sourgens.
State-controlled entities, including state-owned enterprises and sovereign wealth funds, are increasingly important participants in international investment flows and international trade. As claimants in contractual arbitrations, they may face some unique issues, since it is not always clear whether such disputes may be considered “commercial”. Until the status of such claims has been resolved, each case has to be examined on its merits. 中文版
No. 31: “How much do U.S. corporations know (and care) about bilateral investment treaties? Some hints from new survey evidence,” by Jason Webb Yackee.
New evidence shows that top U.S. corporations are surprisingly unfamiliar with — and/or lack confidence in — bilateral investment treaties that are designed to benefit their investments in other countries. To understand whether or not such treaties “work”, it is necessary to find out how and why they do, or do not, form part of firms’ investment decision-making. 中文版
No. 30: “What will an appreciation of China’s currency do to inward and outward FDI?,” by Karl P. Sauvant and Ken Davies.
A revaluation of the Chinese yuan would affect the country’s inward and outward FDI, not just its exports and imports. The impact on FDI inflows to China would be both positive and negative. On the other hand, revaluation is likely to provide a strong boost to overseas investments by China’s multinationals, which have been rising rapidly in recent years. Suspicions that China’s outward FDI is politically motivated are not so far borne out by systematic evidence. The rest of the world should learn how to benefit from this investment, not try to raise protectionist barriers against it. 中文版
No. 29: “Mining for facts: PacRim Cayman LLC v. El Salvador,” by Alexandre de Gramont.
Responds to Perspective No. 23 by Gus Van Harten by briefly presenting Pacific Rim’s case in Pacific Rim v. El Salvador and defends the international arbitration process by which this case is being adjudicated as fair, neutral and objective for both parties. 中文版
No. 28: “Will China relocate its labor-intensive factories to Africa, flying-geese style?,” by Terutomo Ozawa and Christian Bellak.
The authors explore the China-side determinants of China’s industrial relocation to sub-Saharan Africa, highlighting several hurdles to substantial translocation that would jump start local economic development. 中文版
No. 27: “Political risk insurance and bilateral investment treaties: a view from below,” by Lauge Skovgaard Poulsen.
The author reviews evidence from a survey of political risk insurance providers on the consideration of bilateral investment treaties when assessing the risk of investment projects. He finds that, while BITs are basically aimed at reducing the risk of investing abroad, many agencies that price the risk of foreign investments rarely take them into account. 中文版
No. 26: “FDI incentives pay—politically,” by Nathan M. Jensen and Edmund J. Malesky.
The authors find that there are strong political benefits to attracting FDI at the state-level in the United States, and that fiscal incentives for attracting such investment, regardless of their effectiveness, may be a strategic political tool for state politicians. 中文版
No. 25: “The response to the global crisis and investment protection: evidence,” by Kathryn Gordon and Joachim Pohl.
The authors, presenting findings of the OECD, challenge the claim that investment policy measures taken during the crisis were driven by a protectionist agenda but caution that crisis response and exit policies pose a potential threat to investment openness. 中文版
No. 24: “Foreign direct investment and U.S. national security: CFIUS under the Obama Administration,” by Mark E. Plotkin and David N. Fagan.
The Committee on Foreign Investment in the United States review process slowed during the inaugural year of the Obama Administration. The authors examine the origins of this shift and suggest actions that parties can take to facilitate the process. 中文版
No. 23: “Thinking twice about a gold rush: Pacific Rim v El Salvador,” by Gus Van Harten.
Drawing on the case brought against El Salvador by Pacific Rim, the author examines the tension in international investment law between encouraging stability and allowing adaptation to new circumstances and raises a number of resulting concerns about the international arbitration process. 中文版
No. 22: “How BRIC MNEs deal with international political risk ,” by Premila Nazareth Satyanand.
The author analyzes the results of a survey of political risk concerns of outward-investing Brazilian, Russian, Indian, and Chinese (BRIC) firms and compares the results to the concerns of global counterparts. 中文版
No. 21: “Is a model EU BIT possible—or even desirable?,” by Armand de Mestral C.M..
The author explores whether the EU is in a position to adopt a model BIT articulating a common policy on FDI. 中文版
No. 20: “It’s time for an EU investment promotion agency,” by José Guimón.
The author proposes an EU IPA that coordinates FDI promotion and support for foreign investors at a regional level. 中文版
No. 19: “U.S. BITs and financial stability,” by Kevin P. Gallagher.
The author, a member of the State Department subcommittee tasked with reviewing the U.S. Model bilateral investment treaty, addresses the potential impact of BIT provisions on the ability of governments to prevent and mitigate financial crises and makes specific recommendations for the revised Model BIT. 中文版
No. 18: “President Obama’s international tax proposals could go further,” by Reuven S. Avi-Yonah.
The author argues that the Obama Administrations 2011 international tax proposals represent a very cautious first step toward making US multinationals pay their fair share of the tax burden and that coordination with our FDI partners would allow the Administration to go even further. 中文版
No. 17: “International investment law and media disputes: a complement to WTO law,” by Luke Eric Peterson.
The author suggests that international investment law is a potentially powerful legal tool to protect freedom of expression, at least for foreign-owned media companies. 中文版
No. 16: “Can the U.S. remain an attractive host for FDI in the auto industry? New labor policy and flexible production,” by Terutomo Ozawa.
For the first time ever, emerging markets are set to attract more FDI inflows than developed countries in 2009. This Perspective examines this prospect, based on an analysis of the severe downturn of investment flows worldwide this year. 中文版 This Perspective was also printed in the China Daily.
No. 14: “Sovereign wealth funds: much ado about some money,” by Charles Kovacs.
This Perspective makes the point that sovereign wealth funds constitute only one of the pools of anonymous capital, and for that matter, not even one of the most important ones. However, the author recognizes that issues of national security are involved and require attention. 中文版
No. 13: “The growth of Brazil’s direct investment abroad and the challenges it faces,” by Luis Afonso Lima and Octavio de Barros.
Brazil’s FDI outflows reached $21 billion in 2008; in the first five months of 2009, however, Brazil’s OFDI declined by 87% due to the global economic crisis. The authors note that while Brazilian companies, like companies elsewhere, have sought markets and natural resources abroad, they have also in part been pushed to escape the investment climate at home. The authors end by suggesting some rethinking of key government policies. 中文版
No. 12: “Outward investment by Trans-Latin enterprises: reasons for optimism,” by Michael Mortimore and Carlos Razo.
Despite the global crisis, outward FDI by Latin American firms grew by more than 40% in 2008. The picture for 2009 is less clear, due to the expected regional GDP contraction, falling commodity prices, and tightening credit markets. Nonetheless, the authors argue that many countervailing factors make Latin American investment more resilient in the crisis than other regions may be. 中文版
No. 11: “Indian FDI falls in global economic crisis: Indian multinationals tread cautiously,” by Jaya Prakash.
After growing faster than other emerging markets for some time, Indian investment abroad declined in 2008 and will decline further in 2009. The global slowdown has made a difference, as have the credit crunch and a depreciating Indian currency. The stronger than expected domestic GDP growth in the first quarter of 2009 is a positive sign in this context, as is the fact that not every Indian firm with foreign interests is cash-poor. 中文版
No. 10: “National security with a Canadian twist: the Investment Canada Act and the new national security review test,” by Subrata Bhattacharjee.
This Perspective discusses issues raised by the new national security test for proposed investments in Canada, including the ambiguity of the “national security” term and the possibility of politicized national security reviews. The author cautions the government not to adopt an over-expansive approach to the application of the new test. The Extended Note includes a detailed summary of these amendments to the Investment Canada Act and the recently published draft regulations that provide the details of the new national security review process. 中文版
No. 9: “Are SWFs welcome now?,” by Veljko Fotak and William Megginson.
This Perspective documents the change in attitudes of Western governments to foreign direct investment from sovereign wealth funds. The authors propose an analysis of sovereign wealth fund investments and their impact on target firms in order for recipient governments to formulate the proper regulatory response to sovereign direct investment. 中文版
No. 8: “Land grab or development opportunity? International farmland deals in Africa,” by Lorenzo Cotula.
This Perspective discusses the increasing number and size of large-scale farmland acquisitions in Africa by foreign investors over the past five years, including the opportunities and risks created by this trend. 中文版
No. 7: “International investment arbitration: winning, losing and why,” by Susan D. Franck.
This Perspective reviews recent empirical research about investment treaty arbitration in order to help create a more accurate framework for policy choices and dispute-resolution strategies. 中文版
No. 6: “Improving infrastructure or lowering taxes to attract foreign direct investment?,” by Christian Bellak and Markus Leibrecht.
This Perspective compares the impact of improving infrastructure versus lowering taxes on attracting and keeping FDI and discusses the policy implications for countries seeking to attract FDI, especially countries currently debating the relative merits of cutting taxes versus increased spending. 中文版
No. 5: “While global FDI fails, China’s outward FDI doubles,” by Ken Davies.
This Perspective examines the drivers behind the surge in FDI from China in 2008 and the salient features of this outward investment. Davies also discusses how the global financial crisis is affecting China’s outward FDI. 中文版 A shorter version of this perspective was also printed in the Shanghai Daily.
No. 4: “A new geography of innovation – China and India rising,” by Gert Bruche.
This Perspective explains the factors behind the sudden shift toward China and India for MNE R&D centers and explores how the financial crisis will affect China’s and India’s ability to continue to capture the R&D market. 中文版 A shorter version of this perspective was also printed in the Shanghai Daily.
No. 3: “The global financial crisis: will state emergency measures trigger international investment disputes?,” by Anne van Aaken and Jürgen Kurtz.
This Perspective evaluates the possibility that emergency measures that countries are currently taking to mitigate the effects of the global financial crisis will give rise to liability under international investment law. 中文版 Also reprinted in Chinese in the International Economic Cooperation Journal.
No. 2: “The revised national security review process for FDI in the US,” by Mark E. Plotkin and David N. Fagan.
This Perspective explains the new regulations governing the US government’s national security review process for foreign mergers and acquisitions of US businesses which became effective December 22, 2008. 中文版 A shorter version of this perspective was also printed in the Shanghai Daily.
No. 1: “The FDI recession has begun,” by Karl P. Sauvant.