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Howard Mann Senior International Law Advisor International Institute for Sustainable Development www.iisd.org/investment

The IISD Model International Agreement on Investment for Sustainable Development: 1 st ANNUAL FORUM OF DEVELOPING COUNTRY INVESTMENT NEGOTIATORS Singapore October, 2007. Howard Mann Senior International Law Advisor International Institute for Sustainable Development www.iisd.org/investment.

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Howard Mann Senior International Law Advisor International Institute for Sustainable Development www.iisd.org/investment

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  1. The IISDModel International Agreement on Investment for Sustainable Development: 1st ANNUAL FORUM OF DEVELOPING COUNTRY INVESTMENT NEGOTIATORSSingaporeOctober, 2007 Howard Mann Senior International Law Advisor International Institute for Sustainable Development www.iisd.org/investment

  2. Agenda • An introduction to IISD’s Model International Agreement on Investment for Sustainable Development • Discussion of the approach (preamble, objectives, scope) • Discussion of the rights and obligations • Discussion of Dispute Settlement and Institutions

  3. IISD’s Approach IISD’s approach: • Investment Agreement for Sustainable Development: defined purpose, matching tools • Focus on quality, not quantity (never worked) • Need to clearly change balance in interpretation from investor rights only • Comprehensive: Expressly include rights and obligations of foreign investors, host states and home states • Preamble, objectives, express need for a balanced approach

  4. Scope Scope: • More restrictive definition of an “investment” • enterprise based, services and non-services, broad range of legal forms • no IPRs per se, no portfolio investment • Investor: controlling interest is main focus • Post establishment rights only • Pre-establishment (rights of establishment): • Mechanism for states to list sectors they choose to open, but no obligations to keep them open (services and non-service sectors) • Once an investment IS made, it remains protected by post establishment rules

  5. Rights and Obligations • Traditional model:

  6. Rights and Obligations • IISD Model Agreement: six sets of interacting rights and obligations

  7. For. Investor Rights and Obligations

  8. Host State Rights and Obligations

  9. Home State Rights and Obligations

  10. Institutions • IISD approach at multilateral level • National authorities • Contact • OECD Guidelines type complaint role • Conference of the Parties • Secretariat • Technical assistance committee • Financial mechanism • Dispute settlement body: oversee arbitration process like in WTO • Legal Assistance Centre

  11. Dispute settlement: IISD Approach Goal: Transparent and Accountable; Subject to Rule of Law • Standing panel of arbitrators who do not act as lawyers • Appeals process (WTO model) • Prevent multiple claims • Restore exhaustion of local remedies (with “out”) • Breaches of obligations can be raised by host states as a defense, mitigation or to cancel investor rights • Corruption can be raised to vitiate investor rights in relation to an investment • Transparency • Public access to all written materials, hearings • “Amicus curiae” submissions • Full Annex with procedures, rules, standards for arbitrators, etc

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