Governments around the world are facing complex and pressing issues related to attracting and governing sustainable foreign direct investment, including, in particular, with respect to the use and scope of international investment agreements (IIAs). Prompted by a growing number of investor-state disputes as well as concerns about limitations on policy space, a number of countries are reconsidering whether the costs of IIAs may outweigh their benefits. Some countries have been forceful in their positions against current IIAs; others, even those that are traditionally proponents of IIAs such as the United States and the European Union, are reconsidering aspects of their approach to IIAs and the scope of investor rights therein (e.g. the US will not ratify TPP, and the EU is considering an investment court system as an alternative to investor-state dispute settlement). This discussion, hosted by the Republic of Indonesia in collaboration with CCSI, convened government officials, policy makers, civil society and academics to further probe these issues and help to advance the policy debate about the future of IIAs.
9:30-9:40am Opening Remarks: Ambassador Budi Bowoleksono, Ambassador of the Republic of Indonesia to the United States
9:40-11:15am Session I: Investment Liberalization
A growing number of investment treaties include liberalization commitments and extend investor protections to the “pre-establishment” phase. Governments are thus increasingly faced with the decision of whether and to what extent they wish to commit in these agreements to remove restrictions on foreign investment in their respective economies and/or to provide protections for foreign investors seeking to enter their markets. Issues raised by these decisions relate, for example, to the challenges of accurately assessing the costs and benefits of liberalizing different sectors and activities, and the extent to which governments can continue to use tools such as investment screens for national security and other reasons.
This session reviewed trends relating to investment treaties as liberalization tools, and discussed approaches states have taken to protect policy space to govern entry and establishment.
Moderator: Syahda Guruh Samudra, Deputy Director for Investment Treaties, Ministry of Foreign Affairs, Indonesia
Manuel Perez-Rocha, Associate Fellow, Institute for Policy Studies
Sudhanshu Roy, International Lawyer, Foley Hoag LLC
Todd Tucker, Fellow, Roosevelt Institute
11:15-11:30 Coffee Break
11:30-1:00pm Session II: International Investment Agreements: Treaty Protections and Domestic Law
The policy debate and public discussions about recent IIAs, including the TPP, RCEP and CETA, have, among other things, brought to the fore questions about the impact that these agreements, and in particular, their investment chapters, may have on the domestic law and policy of state parties. How do the substantive investor protections and dispute settlement provisions contained in IIAs impact or interact with domestic “rule of law”? What effects might these and other IIAs have on the regulatory and policy space for all levels and branches of government? What implications do IIAs have for community, local and decentralized governance? To what extent and how would an investment court, as proposed by the EU, affect the impact of investor protections in EU agreements on state parties’ domestic law?
Examining these and similar questions, this session addressed how substantive protections and procedural mechanisms, including both investor-state dispute settlement and the proposed EU court, impact the operation of domestic law.
Moderator: Brooke Güven, Legal Researcher, Columbia Center on Sustainable Investment
Miriam Harwood, Partner, Curtis, Mallet-Prevost, Colt & Mosle LLP
Abdul Kadir Jailani, Consul General of the Republic of Indonesia in New York
Lise Johnson, Head, Investment Law and Policy, Columbia Center on Sustainable Investment
1:00pm Closing Remarks; Reception, featuring Indonesian cuisine