Building an Investment Law Curriculum at Columbia Law School
One of the first objectives of CCSI was to build a curriculum at Columbia Law School on issues related to foreign direct investment. In addition to the course on Foreign Direct Investment and Public Policy, taught by CCSI’s founder and former director, Karl P. Sauvant, CCSI has also been instrumental in attracting other faculty to Columbia Law School to teach courses in International Investment Law and International Investment Arbitration. CCSI staff will continue to work with Law School administrators to build curricula around these issues, including through CCSI’s own courses and those taught by adjuncts.
Columbia Law School offers a number of courses related to international investment. These courses include:
Foreign Direct Investment and Public Policy
Karl P. Sauvant
This seminar addresses the role of foreign direct investment (FDI), as undertaken by multinational enterprises (MNEs), in the economic growth and development of host countries and national policy and regulatory issues this role raises. More specifically, it begins with a brief review of MNE strategies, before looking at the salient features of FDI and the factors that drive its expansion and that will be doing so in the future (especially emerging market MNEs, offshoring). An assessment of the role of FDI in trade and the transfer of technology follows. While the discussion of the impact of FDI will deal with policy and regulatory issues, the remainder of the seminar focuses entirely on the role that policies, laws and regulations can play in maximizing the positive and minimizing the negative effects of MNEs, starting with an examination of tensions over FDI and MNE activity, and continuing with issues related to policies to attract FDI, host and home country policies, corporate social responsibility and the rise of international investment agreements. A debate about whether or not FDI contributes to economic growth and development, and policy issues related to this question, concludes the seminar.
The seminar was first offered in the spring semester of 2005/2006 and has been offered every fall semester since.
The syllabus for the Fall 2014 semester is available here.
Investment Treaty Law and Arbitration
George A. Bermann
Investment treaty arbitration is a new and quickly developing area of law that involves a unique blend of public international law, international commercial arbitration and public law principles. The course covers (1) the theoretical and policy background to investment treaties and investor-state arbitration, (2) the substantive standards governing investor-state relationships, including national treatment, most favored nation treatment, expropriation, and fair and equitable treatment, and (3) current controversies, such as the relationship between investment treaties and human rights and environmental protection, the availability of necessity and counter-measures as defenses, and developments in the European Union. The course examines controversial cases (such as the arbitrations against Argentina following its 2001 economic crisis), theoretical questions (such as the legitimacy of private tribunals deciding issues of public law) and the sociology of the field (such as how the interests of investment treaty advocates and arbitrators are shaping the field).
Lori Damrosch and David Pozen
This course presents the basic materials of international law, but a major purpose is the analysis of an international law in evolution in a rapidly changing international society. The course is concerned with the reality of international law in international affairs; the changes in international law that have occurred through the United Nations; the accession of many developing countries to the family of nations; the extension of international law to economic development and human rights; and, most recently, the end of the Cold War and the consequent changes in the structure of international society. In these and other matters, attention is given to problems faced by practitioners and governments and to practical ways of dealing with disputes. The course explores in particular the nature and sources of international law, the application of international law in domestic courts, the recognition of states and governments, territorial disputes, the law of the sea, jurisdiction, state responsibility for the treatment of aliens and foreign investment, the law of treaties, human rights, the peaceful settlement of disputes, and the use of armed force. Special attention is given to the role of the United Nations and the International Court of Justice, and to such contemporary cases and controversies as the Persian Gulf conflict.
International Investment Law
International investment law consists of those international legal principles that define the obligations of states toward the investments of aliens within their territory. As recently as thirty years ago, this body of law was defined by a relatively few cases and pertinent treaties; today there literally are thousands of investment treaties and hundreds of cases intepreting and applying those treaties. Many of these cases raise issues that were unknown, or at least not discussed, thirty years ago. This seminar will consider the development of this body of law from its earliest days to the present. It will begin with a review of the legal principles espoused by the United States and other Western countries in the late 19th and early 20th centuries, when there were few independent countries interested in challenging these views. The seminar then will consider the development of dissent from this Western consensus, in the Communist world, in Latin America, and in the newly-independent states of Asia and Africa that emerged following the Second World War. Our consideration of this long period of discord will be followed by discussion of the so-called “Washington consensus” that developed in the 80s and 90s, some parts of which are reflected in the thousands of bilateral investment treaties that have been concluded, largely in the last 30 years. We then will focus on those investment treaties, and the many arbitral awards that have interpreted them, to identify (1) key principles of investment law on which a broad consensus has emerged and (2) difficulties that arise in applying those principles to particular situations. Finally, the seminar will consider the relationship between international investment law and efforts by states — jointly or separately — to promote environmental protection, labor rights, and investments that serve the long-term interests of the population of the host state. We will discuss whether these goals can be pursued effectively under the principles on which a consensus now exists, whether these principles need to change, or whether some additional principles need to evolve.
International Investment Law and Arbitration
Kabir Duggal and Borzu Sabahi
International investment arbitration, also known as “investor-state” arbitration, represents a significant development in international adjudication. The fact that an investor, such as an individual or a corporate entity, may have standing to enforce international law obligations, and then receive monetary compensation from a state, is a relatively new phenomenon in the development of international law. These arbitrations typically occur under international law before select tribunals of individuals which include some of the highest regarded practitioners in the international law community. The mix of public international and municipal law interaction, international commercial arbitration practices permeating the arbitral process, as well as the ever present tension between public policy and private interest, make international investment arbitration a particularly topical course of study. In particular, students interested in a general introduction to international adjudication, or those who have already taken the investment law or policy courses, should consider this seminar as a means to delve further into this fascinating area of international law practice. From a few published decisions per year only ten years ago to tens of decisions in 2012, investment arbitration has become an active testing ground for the development of international adjudication. This seminar will examine the practical issues that commonly arise in the course of an investor-state arbitration, from the initial claim and organization of the tribunal and arbitration process, through the building of the claim, and the defense, to the final award. We will study aspects of the law of evidence, arbitral procedure, remedies, ethics and jurisprudence as applied to investment protection. Our focus will be on arbitrations conducted pursuant to bilateral investment treaties (or equivalent provisions in free trade agreements) and under the rules of the International Centre for the Settlement of Investment Disputes at the World Bank (ICSID) and the UN Commission on International Trade Law (UNCITRAL). Perhaps most importantly, we will focus on the key players in investment arbitration, the parties, counsel, arbitrators and the institutions, including such matters as the appointment of arbitrators, the role of the key arbitral institutions, and the avoidance of parallel proceedings.
Law of the WTO
Petros C. Mavroidis
The objective of the course is to provide a comprehensive presentation and analysis of the WTO law. The course is restricted to the trade agreements of WTO, that is, trade in goods and trade in services, and a detailed examination of the dispute settlement system. We start, nevertheless, with a detailed historical account of the GATT genesis. The instructors pay particular attention to the case-law: the WTO being a rare (in international relations) third party compulsory adjudication system, WTO courts have contributed significantly to the evolution of the WTO regime. In every course, following a presentation of the modern status of law and case-law, we ask two questions: to what extent case-law makes sense from an economics perspective? And, if not, to what extent the distortion lies in the interpretation or the legal regime itself? We thus, aim to initiate students to a critical evaluation of the WTO regime (besides a positivistic presentation) as well.
International Trade Law
This course examines the law and policy of international trade in goods and services. It begins with an overview of the economics and politics of international cooperation on trade, and then moves on to study the core obligations that states have under the WTO/GATT rules. These rules address tariff and non-tariff barriers, discrimination of importers, regional trade agreements, anti-dumping duties, countervailing duties, and safeguards measures. We will discuss the negotiation, implementation and enforcement of international trade agreements, with a particular interest in the relationship between free trade and other areas of international cooperation, such as environment, public health, intellectual property protection, human rights and development.
Law and Development
This course will examine the various roles that law and legal institutions play in economic, social, and political development in both theory and practice. Its goal is to introduce students to some of the canonical writings on the subject and to critically examine ongoing debates in policy circles and academia by questioning their theoretical foundations and practical implications. While much of the law and development literature focuses exclusively on developing countries, this course seeks to place the debate into a broader context and serves as an introduction to comparative legal institutional analysis. The first part of the course will build on recent work in the area of legal institutionalism and introduce students to the notion that law and legal institutions are at the very heart of the development of modern capitalism. In the second part the course will offer a comparative analysis of selected legal institutions such as property, firms, finance, and human rights to explore the evolution of legal institutions and their different manifestation in different contexts. The third part will focus on the actors promoting legal development, including multilateral organizations, NGOs, bilateral aid organizations, and private actors.