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CIGI Papers

Limiting the Participation of Developed States: Impacts on Investor-State Arbitration

September 26, 2016
Investor-State Arbitration Series, Paper No. 11
Although the present system for resolving investment disputes between states and foreign investors has been around for about five decades, the most significant changes to it have occurred in just the past two. Important changes were forced upon the system when developed countries first were faced with actual prospects of appearing as respondents in investor-state arbitration, starting with the North American Free Trade Agreement. Further provisions have been introduced in later, new-generation, treaties, based on lessons learned and reactions from the respective constituencies. As the issue of the continuing development of the system remains relevant to all countries, there is the need for a mechanism that ensures its balanced evolution for the benefit of all its users, which would not be dependent on the reactionary steps of only segments of the user community at any given time.

The European Commission Proposal for an Investment Court System: Out with the Old, In with the New?

September 26, 2016
Investor-State Arbitration Series, Paper No. 10
The European Commission has recently taken a leadership role in reforming the traditional investor-state dispute settlement regime included in economic agreements, in part in response to pressure from the European Parliament and growing civil society criticisms of the regime. At the core of these efforts is the proposal to create a system of “investment courts,” characterized by state nomination of decision makers benefiting from tenure and by the establishment of appellate-level tribunals. The European Commission has gone to great lengths to contrast this “new, modernised system” with the “old, traditional form of dispute resolution” between investors and states. In the long term, the European Commission’s goal is to replace individual courts with a truly multilateral investment court.

Preparing New Teachers to Work with Refugee Students: Proposal for a Bachelor of Humanitarian Education Program

September 15, 2016
Global Leadership and Cooperation for Refugees Series Paper No. 1
More than half of the 65 million refugees and displaced persons in the world are children. Most are not in school, as rising numbers strain local education systems to their limits. The world needs teachers trained specifically to provide instruction in complex humanitarian situations. This paper proposes that Canada, with its reputation for excellent teacher training programs, is well placed to help fill this gap by creating a Bachelor of Humanitarian Education degree program that trains international “humanitarian teachers” to work specifically with refugee and displaced students.

Investor-State Dispute Settlement in US Law, Politics and Practice: The Debate Continues

August 30, 2016
Investor-State Arbitration Series, Paper No. 9
The United States has more than 45 bilateral investment treaties that include investor-state dispute settlement (ISDS), but prior to the Trans-Pacific Partnership, only two partners to these agreements, Canada and Singapore, have been developed countries. The debate over the advisability of including ISDS continues, even though the North American Free Trade Agreement ushered in an era of transparency investment treaties. This paper argues that if ISDS were abandoned, governments might again be subject to strong political pressures to formally or informally espouse investor claims and such claims would become the key factor in their foreign relations with host countries. The creation of an ISDS mechanism that relieves the US government from undertaking the settlement of investment disputes, and the evolution of US investment protection that is significantly more friendly to host governments and to regulation, are the principal themes of this paper.

Listening to Investors (and Others): Audi Alteram Partem and the Future of International Investment Law

July 28, 2016
Investor-State Arbitration Series, Paper No. 8
This paper enquires into an alternative foundation for investor rights within international investment law, linked to a theory of deliberative democracy and a procedural right to be heard. Drawing upon historical and contemporary accounts within political theory, the paper advances a justification for investor protection that is limited principally to procedural protections associated with the Latin maxim audi alteram partem (“hearing the other side”). After outlining the foundations for this approach in English administrative law and political theory, the paper turns to selected arbitral awards in order to illustrate how a right to be heard would be advantageous to all the interests involved. The author proposes bringing together theory, history and practice in order to ground a theory of investor protection that better reconciles power, politics and democracy.

An Experienced, Developed Democracy: Canada and Investor-State Arbitration

July 22, 2016
Investor-State Arbitration Series, Paper No. 7
A “re-politicization” of the settlement of some investment disputes might be needed for the investor-state arbitration (ISA) system to keep its legitimacy and effectiveness. The looming question is that of the discriminatory nature of ISA. In the case of Canada, it seems clear that Canadian law sometimes offers no remedy equivalent to that provided to foreign investors under investment agreements. How long will the system tolerate less protection for national investors? This question will become more pressing with the rise of ISA between developed democracies.

Ethics in the Internet Environment

July 19, 2016
GCIG Paper No. 39
Rolf H. Weber
Ethics, though a key value of society, often serves more as a proclaimed virtue than as a standard to be applied in real life. For example, ethical issues have been addressed in the latest Internet governance discussions but their importance have not been adequately stated. Moreover, in connection with many different online social networks, the need for clear ethical standards to protect users’ privacy should be emphasized. This paper analyzes the lack of appropriate accountability for ethical standards in Internet governance and develops ideas for improving the ethics environment.

One Internet: An Evidentiary Basis for Policy Making on Internet Universality and Fragmentation

July 19, 2016
GCIG Paper No. 38
This paper examines the extent to which the contemporary Internet can be viewed as a universal network now, explores the economic and social implications of emerging initiatives associated with the potential for Internet fragmentation, and presents a baseline proposal for the technological characteristics and policy frameworks necessary for affording the Internet with a sustained capacity for ongoing global growth and openness.

Misperceptions, Threat Inflation and Mistrust in China-Japan Relations

July 7, 2016
CIGI Paper No. 107
This paper explores the nature of official and non-official discourse and mutual perceptions in China and Japan as they relate to their bilateral relations. Drawing on an analysis of the rhetoric, it examines the elements and sources of both current and past threat perceptions. It argues that government officials, the media and public figures in each country inflate — deliberately or inadvertently — the level of threat posed by the other country, with a significant impact on public opinion, bilateral relations and regional tensions.

Investor-State Arbitration Policy and Practice in Australia

June 27, 2016
Investor-State Arbitration Series, Paper No. 6
Investor-state dispute settlement (ISDS) first emerged in public and parliamentary debates in the lead-up to Australia signing its free trade agreement with the United States in 2004, and the official reason for excluding ISDS was mutual trust in each other’s domestic legal systems. However, a few civil society groups had raised broader sovereignty concerns. Debates intensified from 2010, when Australia joined with the United States (and 10 other Asia-Pacific economies) to negotiate the expanded Trans-Pacific Partnership. ISDS continues to be hotly debated, but there has still been almost no sustained analysis of how Australia’s domestic law protections for (all) investors compare to substantive protections for foreign investors under international customary and treaty law.
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