America First, Trade Last: The Rise of Weaponised Tariffs
By Vahini Naidu
Donald Trump’s return to the White House has reignited economic nationalism, transforming tariffs into instruments of political and economic coercion. His administration’s four-phase strategy—setting policy objectives, conducting strategic reviews, imposing preemptive tariffs, and unpredictable brinkmanship—signals a shift towards unilateralism that bypasses traditional legal frameworks and undermines multilateral trade governance. The recent tariffs on Mexico, Canada, and China, imposed under the International Emergency Economic Powers Act (IEEPA) on security grounds, represent an unprecedented expansion of executive power in trade policy. As the U.S. weakens the WTO and prioritises economic nationalism, the Global South faces a decisive moment. The increasing use of trade measures for geopolitical leverage threatens to further marginalise developing countries. In response, the Global South must take a proactive role in shaping the global trade landscape—deepening South-South cooperation, enhancing regional trade frameworks, and advancing structural reforms to promote resilience and economic sovereignty in an era of growing trade uncertainty. This piece argues that Trump’s trade strategy marks a broader shift towards a power-driven trade order, where economic dominance supersedes rules-based governance, and that the Global South must act decisively to prevent a future where trade is dictated by the strongest rather than negotiated through fairness and equity.
Contract-based Arbitration: Lessons Learned from Bolivia’s Extractives Industries
By Daniel Uribe Teran
Bolivia has undergone a significant shift in its approach to investment dispute resolution, moving away from reliance on Bilateral Investment Treaties (BITs) and international arbitration towards domestic mechanisms and contract-based arbitration. This shift, driven by a desire to assert greater state sovereignty over natural resources, seeks to align dispute resolution with national development priorities while reducing the costs associated with international arbitration. The recent Shell Bolivia Corporation v. YPF Bolivia case highlights the complexities inherent in contract-based arbitration within the extractive sector, emphasizing the need for meticulous contract drafting and a clear definition of arbitrable disputes within the framework of Bolivian law.
This article analyses Bolivia’s transition from reliance on international investment treaties and arbitration to a domestic, contract-centred approach for resolving disputes in its extractive industries. The article examines how the legal framework adopted by Bolivia highlights the role of contract-based arbitration in addressing disputes related to investment, production, technology transfer, environmental and social impacts, labour relations, and contract interpretation. The article draws lessons from other developing countries’ experience, recommending that Bolivia further strengthen its investment framework by adopting clear protection standards, prioritizing fair administrative procedures, and emphasizing domestic remedies. This approach seeks to balance attracting responsible investment with protecting state sovereignty and promoting sustainable development in Bolivia’s extractive industries.
Assessing Five Years of the African Continental Free Trade Area (AfCFTA): Proposals on Potential Amendments
By Kiiza Africa
On 30th May 2024, the African Continental Free Trade Area (AfCFTA) celebrated its fifth anniversary, which legally implied that the agreement is up for review for possible amendments. To kickstart this review, the Thirty-Seventh Ordinary Session of the African Union Summit (held in February 2024) directed the AfCFTA Secretariat to take necessary measures for the start of the review of the Agreement. This review comes at a moment when the AfCFTA implementation and its vehicle, the Guided Trade Initiative (GTI), have been fraught with challenges. Broadly, these challenges include the slow submission of tariff liberalization schedules by State Parties, infrastructure deficits, persistent non-tariff barriers and trade wars in regional economic communities, and overlapping regional trade commitments. Thus, the upcoming AfCFTA review provides an opportunity to assess progress, identify implementation bottlenecks, and propose actionable amendments. This paper examines these challenges through a comprehensive analysis of the AfCFTA’s state of play, illuminating the progress while highlighting the slow momentum registered for the past five years of its operation. Proposals for the agreement’s amendment revolve on accelerating infrastructure development, harmonizing rules of origin, integrating labor rights, and fostering industrial diversification. By moving beyond liberalization as its raison d’être and prioritizing the scaling up of State Parties’ productive capacities, the AfCFTA can evolve from a mere trade liberalization agreement into a transformative driver of Africa’s economic renaissance. It is hoped that this timely assessment underscores the urgency of reorienting the AfCFTA to unlock its full potential for propelling intra-Africa trade.
Investor Obligations in International Investment Law
by David Cheng, Jai Abhijit Unde, and James Casey Ryan
Prepared for the South Centre as part of the Geneva Graduate Institute’s LL.M. Legal Clinic Programme
This report first outlines key instruments and different approaches that some States across Africa, Asia, Europe and the Americas have taken to reform the international investment regime in relation to investor obligations. Second, it charts the trends arising from investment tribunals following Urbaser across environmental and human rights cases. Third, it describes and evaluates the reform efforts at the multilateral level. Finally, it summarises and evaluates avenues for policy reform by States.
Ensuring A Balanced Approach in UNCITRAL Working Group III
co-organized by Gobierno de Colombia, Diplomatische Akademie Wien, Universidad Externado de Colombia, and the South Centre
Views from the Global South on the Multilateral Investment Court and Procedural and Cross-cutting Issues in Investor-State Dispute Settlement (ISDS) Reform.
24 September 2024
Diplomastiche Akademie Wien,
Festsaal, Favoritenstrasse 15a,
1040 Vienna, Austria
FIRST DISCUSSIONS ON DAMAGES IN THE INVESTOR-STATE DISPUTE SETTLEMENT SYSTEM AT UNCITRAL WORKING GROUP III
By José Manuel Alvarez Zárate
This paper summarises the history of initial discussions within UNCITRAL Working Group III (WG.III) on the reform of investor-state dispute settlement (ISDS) regarding the lack of correctness, consistency and predictability of compensation awards. It covers the period up to 2022, beginning with the initial concerns expressed by some countries of the Global South regarding the methodologies used to assess damages and the Draft on Damage Assessment and Compensation prepared by the UNCITRAL Secretariat, which served as the basis for subsequent discussions among the members of WG.III. It then describes the comments made by some states and observers on this draft and the discussions that ensued, including the discussion of damages as part of the issues of ISDS reform. A second paper on this topic will describe the period from September 2022 to the publication by the Secretariat of the second draft of procedural and cross-cutting issues on July 8, 2024.
The purpose of this paper is to provide Global South States with a track record of the main concerns expressed by States on various aspects of damages during the discussions in UNCITRAL WG.III, which have often been lost at some point during the long process of discussions on ISDS reform.
Ensuring a Balanced Approach for the Global South in UNCITRAL Working Group III
By José Manuel Alvarez Zarate
This paper examines the ongoing efforts of the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WG III) to reform the Investor-State Dispute Settlement (ISDS) system. It argues that the current approach prioritises the concerns of developed countries over those of the Global South. The document highlights the disproportionate focus on the Permanent Multilateral Investment Court (MIC) and related issues, while neglecting procedural and cross-cutting concerns crucial for developing nations. The paper proposes concrete actions to rebalance the discussions, including prioritising procedural reforms and ensuring equitable representation in the MIC’s structure and appointment process. It emphasises the need for transparency, depoliticisation, and genuine consideration of the Global South’s concerns to achieve a genuinely legitimate and balanced ISDS reform.
Discussions on Draft Provisions on Damages in the Investor-State Dispute Settlement System in UNCITRAL Working Group III
By José Manuel Alvarez Zárate
This paper summarizes the discussions within the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WG III) on the reform of investor-state dispute settlement (ISDS) regarding the two draft provisions on damages prepared by the UNCITRAL Secretariat as part of the two drafts on procedural and cross-cutting issues. It covers the period from September 2022 to July 8, 2024. It describes the draft provisions on damages and related provisions on procedural and cross-cutting issues of document A/CN.9/WG.III/WP.231, dated 26 July 2023, as well as the comments made on it by some members of WG III and observers. It also describes the changes to the above document contained in the second draft on the procedural and cross-cutting issues, dated July 8, 2024, contained in document A/CN.9/WG.III/WP.244.
The purpose of this paper is to provide an overview of the comments made by some States on the draft provisions on damages, the substantive changes made by the Secretariat to the first draft, mostly based on the comments made by some States, and the exclusion of important aspects highlighted by some Global South States in their interventions. In the light of this review, countries of the Global South may consider commenting on document A/CN.9/WG.III/WP.244 to ensure that their concerns are effectively taken into account.
Foreign Direct Investment Screening for ‘National Security’ or Sustainable Development: a blessing in disguise?
By Daniel Uribe Teran
Over the past decade, the global adoption of Foreign Direct Investment (FDI) screening mechanisms (ISMs) has surged, reflecting developed countries’ policies aiming at restricting FDI on the grounds of broadly defined ‘security’ or ‘national’ interests. Recent geopolitical and economic crises have further fuelled this trend, leading to increasingly stringent ISMs. This paper explores the definition, evolution, and current practices of ISMs, highlighting their resurgence and differing motivations globally. It examines how, if properly used, ISMs could also be used to promote sustainable development and resilience, and advance climate action agendas. The paper also provides policymakers with insights into maximizing the impact of ISMs to achieve sustainable development and economic resilience in an interconnected world.
Painting the Grass Green: A Climate Change Carve-Out in Investment Agreements
By Daniel Uribe
During the Twenty-Eighth Session of the Conference of the Parties (COP-28) of the United Nations Framework Convention on Climate Change (UNFCCC), States recognised the critical need to accelerate efforts to mitigate climate change and called on Parties to take action to transition away from fossil fuels in energy systems, to achieve net zero emissions by 2050. However, implementing such a transition finds obstacles in investor-state dispute settlement (ISDS) mechanisms, which can undermine regulatory actions necessary for climate policies, leading to a ‘regulatory chill’. As a response to these challenges, the Organisation for Economic Co-operation and Development’s (OECD) Future of Investment Treaties program has proposed a model carve-out provision to exclude fossil fuel sectors from ISDS protection with procedural safeguards, but its effectiveness may be limited. A holistic reform of investment agreements and additional measures, such as withdrawal from international investment agreements, are necessary to safeguard regulatory space and promote sustainable investment and a just transition.
The India-EFTA Deal: A New Model for Developing Countries?
By Danish
Governments are shifting from investor-state dispute mechanisms to treaties that encourage and ease investment. The India-European Free Trade Association (EFTA) Trade and Economic Partnership Agreement could be setting a new standard for developing countries to promote and benefit from foreign investment.
On the Forty-eighth Session of UNCITRAL Working Group III
By Jose Manuel Alvarez Zarate
The forty-eighth session of UNCITRAL Working Group III (WGIII) on Investor-State Dispute Settlement (ISDS) reform was held in New York from April 1-5, 2024. The WGIII made significant progress in various reform areas. The European Union’s proposal for a permanent Multilateral Investment Court is advancing, albeit with mixed support. A Code of Conduct, developed with ICSID and adopted in 2023, remains contentious. Likewise, discussions focused on the draft statute for an Advisory Centre on International Investment Dispute Settlement, revised guidelines for dispute prevention, and a draft statute for a Permanent Mechanism for ISDS. Despite progress, core criticisms of the ISDS system—transparency, balance of rights, and rule clarity—remain inadequately addressed. This document considers some of the progress made and the need to provide more time for discussions on procedural and cross-cutting issues, which are crucial for developing countries to achieve balanced and inclusive outcomes.
