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High Level Seminar: Opinion 1-17 of the ECJ and Reform of Investment Protection

This seminar discusses the progress and challenges in investment protection reform, with a focus on the European Court of Justice opinions. UNCTAD provides policy tools and guidance for holistic, transparent, and inclusive reforms in investment policy-making.

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High Level Seminar: Opinion 1-17 of the ECJ and Reform of Investment Protection

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  1. High Level Seminar:Opinion 1-17 of the ECJ and Reform of Investment Protection Reforming the Global IIA Regime – UNCTAD Perspective 6 September 2019 Brussels Ms. Elisabeth Tuerk Chief, International Investment Agreements (IIA) Section, Division on Investment and Enterprise, UNCTAD

  2. Key messages: Reform is progressing, but much remains to be done International investment policy making remains dynamic UNCTAD’s policy tools have spurred action (most of the new treaties contain elements of reform) Modernizing old-generation treaties is a priority (they are 10 times as many as the number of “modern” IIAs and they lack reform-oriented features) Reform needs to be holistic (changes in the rules of dispute settlement as well as the substantive rules) Reforms must be undertaken in a transparent and inclusive manner (engaging in meaningful stakeholder dialogue)

  3. UNCTAD data on IIAs and ISDS

  4. International investment policymaking remains highly dynamic Number of IIAs signed, 1980-2018 • Source: UNCTAD, WIR 2019

  5. The number of new ISDS cases remains high Trends in known treaty-based ISDS cases, 1980-2018 Source: UNCTAD, WIR 2019

  6. UNCTAD’s work on sustainable development-oriented IIA reform

  7. UNCTAD’s Reform Package for the Int. Investment Regime, Launched at the 2018 World Investment Forum (WIF) Phase 1 More than 100 policy options for treaty clauses addressing the five priority areas for sustainable development-oriented treaty making Phase 2 10 reform mechanisms that countries can use to modernize existing old-generation treaties Phase 3 Policy guidance for 3 prongs of action towards ensuring overall investment policy coherence for sustainable development

  8. Phase 1UNCTAD’s Road Map for IIA Reform (2015) • Source: UNCTAD, WIR16

  9. Phase 1 Reform–oriented provisions in IIAs concluded in 2018 Source: UNCTAD, WIR 2019

  10. Phase 1 ISDS reform elements in IIAs concluded in 2018 Source: UNCTAD, WIR 2019

  11. Phase 2From old-generation IIAs to the conclusion of recent IIAs Stock of treaties, old-generation (1959 – 2011) and recent (2012-2018) (Per cent) • Source: UNCTAD, WIR19

  12. Phase 2UNCTAD’s 10 Options for modernizing the existing stock of old-generation IIAs (2017) • Source: UNCTAD, WIR18

  13. Phase 2Terminations on the rise Effective IIA terminations (Number of IIAs by selected period) This includes treaties: • unilaterally denounced • terminated by consent • replaced by a new treaty • expired automatically • Source: UNCTAD, WIR19

  14. The way forward: IIA reform should be • Holistic: looking at IIAs in their entirety • IIA reformshouldbecomprehensive: procedural aspects, but also substantive standards of protection • Reform shouldextend not only to future, but also to existingtreaties, and beyondIIAs • Inclusive: ensuring an inclusive and transparent process • Addressing the "development challenge" (rule-takers) and involving other stakeholders • Sustainable: not losing sight of the bigger picture • Shaping the process so that it effectively pursues the overarching objective of sustainable development

  15. The way forward: IIA reform should be (cont.) UNCTAD policy tools include: • Investment Policy Framework for Sustainable Development • Reform Package for the Global Investment Regime • Global Action Menu on Investment Facilitation UNCTAD policy tools are • Applied across UNCTAD’s three pillars of activities

  16. THANK YOU! investmentpolicy.unctad.org worldinvestmentforum.unctad.org

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