Against Balancing: Revisiting the Use/Regulation Distinction To Reform Liability and Compensation Under Investment Treaties

Investment treaties generate mutual benefits for host states and foreign investors to the extent that they discipline opportunistic conduct by host states. Investment treaties do not necessarily generate mutual benefits insofar as they constrain states’ ability to respond to new information or to change their policy priorities. In a companion paper, we use the tools of law and economics to formalize and clarify the relationship between problems of opportunism on the one hand, and new information and shifts in policy priorities on the other. On this basis, we develop a proposal to reform the legal principles that govern liability and compensation under investment treaties that is narrowly targeted to solving the problem of host state opportunism. In this paper, we situate our proposal in relation to existing academic debates, explore its implications in practice and consider additional policy arguments for our proposal beyond the criterion of Pareto improvement deployed in our companion paper. In particular, we show that our proposal develops a line of scholarship which posits that a court or tribunal should distinguish government use of private property from government regulation of private property, with only the former requiring compensation. We argue that our proposal resolves many practical challenges with previous attempts to develop a workable jurisprudence based on the use/regulation distinction and show how our proposal could be operationalized in practice. We further argue that there are strong political economy and democratic arguments for preferring our proposal to the status quo

The concept of ‘due diligence’ in the UN guiding principles on business and human rights

Due diligence is at the heart of the United Nations Guiding Principles on Business and Human Rights, which establish the main parameters internationally for considering corporate responsibility for human rights violations. However, the Guiding Principles invoke two different concepts of due diligence: the first is a process to manage business risks and the second is the standard of conduct required to discharge an obligation. In this article, we show that the Guiding Principles invoke these two concepts without explaining how they relate to each other. This confusion creates uncertainty about the extent of businesses’ responsibility to respect human rights and uncertainty about how that responsibility relates to businesses’ correlative responsibility to provide a remedy when they infringe human rights. On this basis, we propose and justify an interpretation of the Guiding Principles that clarifies the relationship between the two concepts of due diligence

¿Innovan las innovaciones? Un análisis de Conectar Igualdad y Aprender Conectados

The debate about the impact and the actions expected in the school in the face of the transformations generated by digital technologies, is a "common place" for "specialized" journalists, pedagogues, teachers and researchers. From there, publications, discourses and public policy are generated to achieve educational innovation. However, innovation can mean different things, depending on the perspective (s) proposed and / or analyzed. This article presents an analysis of the Connect Equality Program (PCI) and its heir the Connected Learning Program (PAC). Three aspects are considered, their content in both programs and the possible impact they have on public policies of innovation in education. For the analysis we will use contributions from the CTS thinking, betting on your account for this type of studies.El debate sobre el impacto y las acciones esperadas en la escuela frente a las transformaciones generadas por las tecnologías digitales, es un “lugar común” para periodistas “especializados”, pedagogos, docentes e investigadores. De allí se generan publicaciones, discursos y política pública para alcanzar la innovación educativa. Sin embargo, innovación puede significar cosas diferentes, según desde la(s) perspectiva(s) que se la proponga y/o analice. El presente artículo presenta un análisis del Programa Conectar Igualdad (PCI) y su heredero el Programa Aprender Conectados (PAC). Se consideran tres aspectos, su encuadre en ambos programas y el posible impacto limitante que tienen en las políticas públicas de innovación en educación. Para el análisis nos valdremos de aportes del pensamiento CTS, apostando a dar cuenta de su relevancia para este tipo de estudios.O debate sobre o impacto e as ações esperadas na escola diante das transformações geradas pelas tecnologias digitais é um “local comum” para jornalistas, pedagogos, professores e pesquisadores “especializados”. A partir daí, publicações, discursos e políticas públicas são geradas para alcançar a inovação educacional. No entanto, inovação pode significar coisas diferentes, dependendo da (s) perspectiva (s) proposta (s) e / ou analisada. Este artigo apresenta uma análise do Connect Equality Program (PCI) e seu herdeiro, o Learn Connected Program (PAC). Três aspectos são considerados: o enquadramento nos dois programas e o possível impacto limitador que eles têm nas políticas públicas de inovação na educação. Para a análise, utilizaremos contribuições do pensamento CTS, apostando em perceber sua relevância para esse tipo de estudo

Rule-Makers or Rule-Takers? Exploring the Transatlantic Trade and Investment Partnership

The Transatlantic Trade and Investment Partnership (TTIP) is an effort by the United States and the European Union to reposition themselves for a world of diffuse economic power and intensified global competition. It is a next-generation economic negotiation that breaks the mould of traditional trade agreements. At the heart of the ongoing talks is the question whether and in which areas the two major democratic actors in the global economy can address costly frictions generated by their deep commercial integration by aligning rules and other instruments. The aim is to reduce duplication in various ways in areas where levels of regulatory protection are equivalent as well as to foster wide-ranging regulatory cooperation and set a benchmark for high-quality global norms. In this volume, European and American experts explain the economic context of TTIP and its geopolitical implications, and then explore the challenges and consequences of US-EU negotiations across numerous sensitive areas, ranging from food safety and public procurement to economic and regulatory assessments of technical barriers to trade, automotive, chemicals, energy, services, investor-state dispute settlement mechanisms and regulatory cooperation. Their insights cut through the confusion and tremendous public controversies now swirling around TTIP, and help decision-makers understand how the United States and the European Union can remain rule-makers rather than rule-takers in a globalising world in which their relative influence is waning

How much substantive protection should investment treaties provide to foreign investment?

This thesis contributes to academic debate about the question: how much substantive protection should investment treaties (IITs) provide to foreign investment? Chapters 5 and 6 argue that arbitral tribunals have interpreted fair and equitable treatment and indirect expropriation provisions of existing IITs in several different ways. Each of these interpretations is sketched as a model level of protection that could be explicitly adopted by states in the future, either through inclusion in new IITs, or through amendment to existing IITs. In this way, the thesis defines a range of prospective options available to states concerning the level of protection to provide to foreign investment through IITs. The thesis evaluates the relative desirability of these different levels of protection.The thesis argues that different levels of protection should be evaluated according to their likely consequences. The thesis develops a framework for inferring and understanding the likely consequences of adopting different levels of protection. The framework proposes that the consequences of a given level of protection can be understood in terms of its likely effect on: economic efficiency; the distribution of economic costs and benefits; flows of foreign direct investment into host states; the realisation of human rights and environmental conservation in host states; and respect for the rule of law in host states. Within this framework, the thesis provides an assessment and synthesis of existing empirical evidence and explanatory theory so far as they relate to the consequences of IIT protections. It also specifies the normative criteria by which these consequences should be evaluated. Through the application of this framework, the thesis concludes that lower levels of protection of foreign investment are, in general, likely to be more desirable than higher levels of protection.</p