Served on a silver platter? A review of the UNCTAD Global Action Menu for Investment Facilitation

Increasing dissatisfaction with investor-State dispute settlement has weakened the adversarial approach to international investment law and policy. This article argues that global initiatives, such as the UNCTAD’s Global Action Menu for Investment Facilitation (the “Action Menu”), provide good policy praxis to redirect the development of international investment law from adversarial to a constructive path. The Action Menu suggests rebuilding of future international investment law and policy with a reconciliatory spirit and by promoting investment facilitation for sustainable development. To demystify the Action Menu’s policy praxis, this article addresses the following key questions: How is the Action Menu’s proposed investment facilitation framework different from existing investment promotion and protection strategies? Does the Action Menu propose a fundamental change to existing international investment policy agenda? Are there other comparable initiatives that may enlighten the Action Menu’s approach? To what extent the existing domestic policies on investment facilitation reflect the Action Menu’s approaches? Would the Action Menu’s investment facilitation framework indeed promote sustainable development? The analysis primarily hinges on the impression that at the time when international investment law is fraught with internal antagonism, the Action Menu’s investment facilitation framework brings positive vibes to international investment law and policy making. Key strengths of the Action Menu are its holistic treatment of all primary foreign investment policy stakeholders (i.e., foreign investors and their home and host States) under one policy framework, and its whole-of-government approach for implementation of investment facilitation policies. The apparent weaknesses are a lack of attention to curb possible race to the bottom and visible lapses in offering a collaborative sustainable development programme. The article concludes that although the Action Menu sets out great policy initiatives, there are many issues that remain to be addressed.