Investment Law & Policy

A framework of international, national, and sub-national laws and contracts governs international investment and is a fundamental factor in determining whether, when, and how countries and communities can benefit from those capital flows. CCSI explores elements of that legal framework, including the impact of investment treaties, investor-state dispute settlement, and home and host government policies governing inward and outward investment, among many other issues.

 

Core Themes

Click on the following icons to learn more about our work on the intersection of Investment Law & Policy with the respective issue area.

Trends in Investment Treaties and Arbitration

CCSI tracks the negotiation and conclusion of investment treaties, and monitors investor-state dispute settlement cases. We publish research and commentary on these trends and developments, and convene online fora to share views of a wide range of experts and stakeholders. Learn More.

 

Rethinking International Investment Agreements (IIAs) and Investor-State Dispute Settlement (ISDS) 

What role can and should international law play in governing international investment? How can that law be designed so as to advance sustainable development within and across countries? Answering these questions is central to our work.

CCSI’s Primer on international investment treaties and ISDS provides an overview of these instruments and the ISDS mechanism, looking at what they are, how they work, their impacts, and reform efforts. Read the primer here.

 

In order to achieve the SDGs, it is essential that international economic law advances and does not undermine those goals. We have produced a three-part framework to assess whether international investment agreements (IIAs) are performing as required. Read more.

In order to evaluate IIAs and ISDS, it is important to take stock of (1) their objectives, (2) how effective they are in terms of achieving those objectives, (3) the costs they impose in pursuit of their objectives, and (4) the distribution of relevant costs and benefits. We explore each of these questions. Relevant research and publications include:

The United Nations Commission on International Trade Law (UNCITRAL) launched in 2017 multilateral negotiations to reform ISDS. CCSI participates in these negotiations as an observer delegation, and advances research and dialogue to inform the process. Read more.

Many critiques of investment treaties relate to concerns that tribunals’ interpretations of these agreements depart from states’ understandings of the texts, and do so in unpredictable ways leading to overly expansive obligations, expensive litigation, and unforeseen liability. States, however, can take steps to make their intentions regarding the texts clearer, and reduce the risk of uncertain outcomes. Read more.

As reflected by SDG 17, governments and their stakeholders must have capacity to effectively formulate their national sustainable development policies. They also need to ensure that international law provides appropriate “policy space” and cooperative mechanisms to advance those national development aims. CCSI has studied constraints governments face when trying to effectively engage in the investment law system, and analyzed proposals for overcoming those constraints. Read more.  

States are considering the desirability, and form, of a potential international court to hear investment-related disputes. CCSI’s work considers, from a principled-based approach, the desirability of an investment court, what concerns about ISDS it would solve, engages with existing proposals, and makes proposals on what such an institution should look like and do. Learn more.

 

Third-party funding of investor-state disputes has increased dramatically in recent years. CCSI’s work analyzes the role of third-party funding in ISDS and suggests regulatory and other solutions to manage undesirable impacts. Learn more.

 

Valuation of ISDS claims has become an exceedingly controversial topic, particularly given the increasing frequency of very large awards in recent years, many of which are against developing countries. CCSI’s work in this area focuses on analyzing damages as a critical element of ISDS reform. Learn more.

One identified concern about investor-state dispute settlement is its near complete asymmetry. Counterclaims have been raised as a way to rebalance ISDS. CCSI’s work in this area analyzes issues surrounding counterclaims, including rules surrounding them, and whether, when and under what circumstances they may address perceived or actual concerns. Learn more.

Transparency in investor-state dispute settlement is fundamental for accountability, good governance, and the rule of law, elements which are, in turn, crucial for sustainable development. CCSI therefore works to combat continued opacity in investor-state arbitration. Read more.

As the ISDS mechanism is under increasing criticism, and as IIA and ISDS reform efforts are underway, CCSI has advanced two short- or long-term solutions for states to manage their existing treaties: termination, and withdrawal of advance consent to investor-state arbitration. Learn more.

 

Investment & Extractive Industries

Good governance of the extractives sector requires a significant degree of state involvement in order to maximize the benefits, and to limit the environmental and social harms, that can result from the exploitation of natural resources… Read more.

Investment Law & Land

Investment treaties play an important role in the governance of land investments. CCSI conducts research, publishes resources, and advances reform options specific to this intersection of investment law and land investments.

Investment & Environment

Growing cries for action to effectively address the climate and other environmental crises hold important implications for the governance of cross-border investments. Read more.

Governments’ commitments through investment treaties have important implications for domestic environmental regulation. ISDS challenges and awards have impacted governments’ abilities to regulate and determine pricing arrangements for water services, modify or deny land-use permits, impact transport of hazardous wastes, and strengthen environmental regulations… read more.

 While international investment can provide transfers of capital and technology that spread the use of environmentally sound products and processes, and enable countries to “leapfrog” more polluting phases of development, it can also give rise to certain environmental risks. For one, strategies that firms use to structure their operations across borders and the doctrine of... read more

Investment & Infrastructure

Investment in sustainable infrastructure is a key component of Agenda 2030 and the Financing for Development action agenda. Beyond SDG 9 (Industry, Innovation and Infrastructure) investment in sustainable infrastructure is inextricably linked to the achievement of all of the SDGs including, for example, climate action, clean energy transitions, the creation of a circular economy, gender equality, and quality jobs. CCSI’s work in this area focuses on the legal and economic frameworks and contracts that facilitate sustainable investment in this critical area. Learn more.

Investment & Climate Change

The message is by now clear: our global economy must be fundamentally reoriented and redeployed in order to achieve the Sustainable Development Goals (SDGs) and the commitments of the Paris Climate Agreement. This requires action by all stakeholders including non-financial and financial firms, debt and equity investors, government policymakers, and consumers, as well as the reimagining and reform of international investment agreements, which can hinder climate policy progress.

Investment Law & Human Rights 

States’ legal obligations under international investment law and international human rights law can compete in practice. CCSI focuses on the intersection of these two international legal regimes, and the impacts of their application for the realization of human rights.

This chapter provides an overview of the interaction between international human rights law and the investment treaty regime. It highlights the challenges that arise from tensions between human rights and investment norms, explores the shortcomings of current approaches to investment governance, and briefly sets out options for aligning the investment regime with states' human rights obligations. Find it here.

Among the critical issues that arise from the interaction of human rights and investment law is whether and how the relatively greater access to justice provided to aggrieved investors by the international investment regime undermines access to justice for other individuals and communities. CCSI conducts research on this topic, convenes events and dialogues with stakeholders, and proposes reform options in investment and human rights fora. Learn more.

In our Executive Training on Investment Treaties and Arbitration for Government Officials, and through other trainings and events, CCSI advances options for policy-makers to align investment governance with human rights obligations.

CCSI and the United Nations Special Rapporteur on the rights of indigenous peoples co-hosted a workshop on indigenous peoples and investment. Learn more, and access the outcome document, here.

CCSI has provided input to United Nations mandate holders on whether and how international investment treaties and investor-state dispute settlement can undermine the rights of human rights defenders. Learn more

Among CCSI’s work at this intersection is a specific focus on investor-state dispute settlement and human rights. Work in this area includes a CLE workshop for practitioners, speaking engagements, and academic writing. Learn more.

Investment & Inclusive Economic Growth

International investment can help spur economic activity in its host countries, home countries, and beyond. But that growth is not always inclusive. Indeed, we are seeing growing inequality within and between many countries, and increasing concentrations of wealth and economic power. We look at the feedback loops between economic, social, political, and legal inequality. And we examine how law and policy - the rules of the game - can be harnessed to better support inclusive development and human flourishing.  

As levels of intra-national inequality are on the rise in many countries, CCSI is examining the role of investment treaties in contributing to these gaps, and how changes might help reduce these gaps. Read more.

We look at the opportunities and challenges that industrial policy presents for achieving sustainable development, and the advantages and disadvantages of international rules restricting the use of such policies. Read more

Investment promotion and investment facilitation can help states attract, expand, and retain investment. Yet states face many challenges in designing promotion and facilitation schemes that effectively and efficiently meet policy objectives. Read more.

Investment incentives are tools governments can use to help produce positive outcomes that markets alone may not achieve. Incentives can encourage production of public goods, spur investment in R&D and innovation, and support economic activity and employment in undeveloped or marginalized areas. But incentives are also prone to overuse and misuse. Getting them right is a crucial, yet complex task. Read more.

Investment & COVID-19 

As foreign investors may attempt to bring ISDS claims against States for actions taken to combat the Covid-19 pandemic in order to claim compensation or damages, or even in an attempt to change government policies for their benefit, relief against ISDS proceedings must also be part of any response plan to the Covid-19 crisis. Read more.

See CCSI’s signatory letter calling for an ISDS moratorium during the COVID-19 crisis and response