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Development as an International Right: Investment in the New Trade-Based IIAs

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Title:Development as an International Right: Investment in the New Trade-Based IIAs
Authors:Desierto, Diane A.
Date Issued:2011
Citation:3 Trade L. & Dev. 296 2011
Series:Trade Law And Development, Volume 3
Abstract:This article explores the international right of development, as expressed in the design of new trade-based international investment agreements (ILs). The article shows that, hitherto, development has figured mostly in investment arbitration primarily through 'Jurisdictional gatekeeping" (what is designated to refer to issues involving access to dispute resolution procedures under the ICSID Convention). As this article shows in Parts I and II of this article, recent investment arbitrations in the past decade have turned on the issue of how to reconcile and interpret the meaning of 'investment" within Article 25 of the ICSID Convention with the effect of the pro-development language in the Preamble to the ICSID Convention. While the Salini test will remain a much debated approach in international investment interpretation, the main subjective difficulty in elevating development to a condition or criterion for investment treaty coverage is that the international right of development is itself a dynamic concept, with equally divergent methods for assessing "contributions to economic development" The inherent fluidity of the concept of development, coupled with the absence of an)' language within Article 25 of the ICSID on the international right to development, further supports the view that the Convention did not intend to impose development contributions as a strict condition or mandatory criterion before gaining access to ICSID jurisdiction. Rather than focus on the problematic uses of the international tight of development in jurisdictional gatekeeping, this article drams attention to the actual nature of the international right to development and its implementation, which has less to do with justiciabilly (or adjudicated remedies) and more to do with the direct implementation and supervision of States. The practicable development-oriented innovations in new trade-based IIAs, such as the COWESA Common Investment Agreement, the ASEAN Comprehensive Investment Agreement, and the ASEAN-China Investment Agreement, appear to align more closely with the actual nature of the right to development. These particular types of IIAs, which often form part of a complete trade cooperation package, operationalize the international right of development through: (1) permissible differentiation or graduated implementation of host State obligations, taking the host State's stage of economic development into account; (2) transparency obligations and information exchanges between treaty partners; (3) joint investment promotion activities by treaty partners; and (4) coordinated institutional mechanisms that enable host State participation and access in monitoring treaty interpretation and any investment-related rulemaking. These phenomena demonstrate a marked paradigm shift towards a more effective deployment of the international right of development in international investment rule-making.
Appears in Collections: Desierto, Diane (Former Faculty)

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