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Journal articles on the topic 'Arbitration and investment treaties'
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1
Choudhury, Barnali. "Democratic Implications Arising from the Intersection of Investment Arbitration and Human Rights." Alberta Law Review 46, no. 4 (August 1, 2009): 983. http://dx.doi.org/10.29173/alr213.
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In the last two decades, investors have taken advantage of investment arbitration mechanisms in investment treaties to challenge state regulations, often implicating human rights issues. This article examines the conflict between states’ human rights obligations and their obligations under investment treaties. The first part of the article examines common obligations arising under investment treaties and the investment arbitration process created by the treaties. In the second part, the author examines the way in which investment treaties and arbitrations impact human rights concerns. In particular, the author reviews a number of human rights, including the right to water, the right to health, and rights related to culture. The author also examines common provisions of investment treaties that are particularly problematic in terms of human rights issues: expropriation and fair and equitable treatment. The author analyzes the democratic deficit inherent in the creation of investment treaties and the structure of investment arbitration, concluding that investment treaties generally lack true democratic consent, and that investment arbitration lacks sufficient transparency and protection for minority rights to reflect true democratic principles. The article concludes with suggestions for reform to address the democratic deficit of investment arbitration through both the provisions of investment treaties and the structure and procedure of arbitration.
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de Sá Ribeiro, Marilda Rosado, and Orlando José Guterres Costa Júnior. "Global Governance and Investment Treaty Arbitration: The Importance of the Argentine Crisis for Future Disputes." Law and Practice of International Courts and Tribunals 14, no. 3 (December 9, 2015): 417–37. http://dx.doi.org/10.1163/15718034-12341301.
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Foreign direct investments are important catalysts for national development and states have sought to attract investment by ratifying investment treaties that offer guarantees to foreign investors and that allow foreign investors to file an arbitration against a host state directly before an international tribunal. However, investment treaty arbitrations do not act only as a mechanism of dispute settlement; they also have a global governance role. They review the legality of state conduct through their adjudicative powers, in reference to those obligations that are narrowly stipulated in investment treaties. On the other hand, states must protect the most basic interests of those under their jurisdiction, even if to do so contradicts the interests of investors, and, in turn, investors have submitted claims against states through international arbitration whenever their interests have been contradicted. In the following article it will be discussed how the regulatory capacity of states has been considered in investment treaty arbitrations, with particular regard to the arbitrations filed against Argentina in the 2000s.
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Daradkeh, Lafi. "Commercial Arbitration under Investment Treaties and Contracts: Its Importance and Danger in the Arab World." Arab Law Quarterly 27, no. 4 (2013): 393–413. http://dx.doi.org/10.1163/15730255-12341269.
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Abstract Given the importance of investments, a number of international and regional conventions have been set up in order to protect the parties to investment contracts by adopting arbitration as a method to resolve any dispute that might arise from such contracts. Despite the importance of commercial arbitration for foreign investment treaties and contracts, the process of its application has revealed many of the risks investment poses to the host, particularly Arab, country. This is because commercial arbitration has often been used as a legal means to protect foreigners from the harmful consequences that their investments have had on the environment. The most negative aspects of international commercial arbitration for foreign investment contracts are the modern trends that have been adopted in the field of arbitration, where host countries must comply even when their local laws and public policies are being violated.
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Atai, Ardeshir. "Arbitration of investment disputes under Iranian investment treaties." Journal of Money Laundering Control 14, no. 2 (May 10, 2011): 130–57. http://dx.doi.org/10.1108/13685201111127795.
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Schill, Stephan W. "Illegal Investments in Investment Treaty Arbitration." Law & Practice of International Courts and Tribunals 11, no. 2 (2012): 281–323. http://dx.doi.org/10.1163/157180312x640697.
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Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.
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Arif, Sahra. "The Future of Intra-EU Investment Arbitration: Intra-EU Investment Arbitration under the ECT post Achmea." European Investment Law and Arbitration Review Online 4, no. 1 (December 16, 2019): 147–77. http://dx.doi.org/10.1163/24689017_00401007.
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The Achmea judgment of the Court of Justice of the EU (CJEU) found that arbitration clauses in bilateral investment treaties (BITS) between Member States of the European Union are incompatible with European Union law. Following this, Member States attempted to invoke this judgment in relation to similar intra-EU arbitrations under the Energy Charter Treaty (ECT). Tribunals established under the ECT have however generally rejected the applicability of the Achmea judgement. While the EU Commission and the majority of Member States concluded that this judgment also precludes intra-EU ect arbitrations, a few Member States held the opposite view. The future of intra-EU ECT arbitrations therefore seems fragile in the least. A closer analysis of the decisions of ECT Tribunals, and the relationship between obligations under European Union law and international law however argues that the future of such intra-EU ECT arbitrations is not as fragile as it may seem.
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Trinh, Hai Yen, and The Hoang Nguyen. "Procedural Transparency in the Settlement of Treaty-Based Investment Disputes in EVIPA and CPTPP." Vietnamese Journal of Legal Sciences 2, no. 1 (September 1, 2020): 58–75. http://dx.doi.org/10.2478/vjls-2020-0010.
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AbstractImportant characteristics of commercial arbitration include privacy and confidentiality; nonetheless, in investor-state arbitration, most of the investment treaties or arbitral rules referred therein often seek to enhance transparency and public participation by introducing three new features to investment arbitration’s proceedings: public access to documents related to the arbitration, public access to hearings; and amicus curiae submission. Those provisions generally contain exceptions to maintain a balance between the public interest on the one hand, and the interest of the disputing parties on the other hand in the fair and efficient resolution of the dispute. The two treaties Viet Nam has recently concluded, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the EU-Viet Nam Investment Protection Agreement (EVIPA), have stipulated the procedural transparency requirements, which are in line with a new trend of development in international investment law. Although Viet Nam currently maintains confidentiality with regard to investor-state arbitration, the fact that Viet Nam has made international commitments on transparency promises benefits such as increasing public interest protection, improving governance and ensuring the right to information.
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Romero, Eduardo Silva, and Ana Carolina Simões E. Silva. "The Declaration of the 1st Ministerial Meeting of the Latin American States Affected by transnational interests." International Legal Materials 52, no. 6 (December 2013): 1321–26. http://dx.doi.org/10.5305/intelegamate.52.6.1321.
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In the past decade, Latin American States have begun to voice strong criticisms of the existing system for the settlement of disputes between foreign private investors and States through international arbitration based on investment treaties. Since the end of the nineties, said system has undergone an extraordinary development due to the direct right of action granted to foreign investors by investment treaties. Indeed, the great majority of the thousands of investment treaties existing today not only grant substantive protection to investments made by investors of one State party in the territory of the other State party to the treaty, but also contain investor-State dispute settlement provisions allowing investors to initiate arbitration proceedings against host States for an alleged breach of the treaty by the State. The practice of arbitration based on investment treaties has, however, generated many difficulties with respect to both the arbitral tribunals’ application of the substantive protections provided for in the treaties and to the functioning of the arbitration proceedings. In response to those difficulties, Latin American States are seeking to set up regional legal and political cooperation initiatives to create alternatives to the existing system. The Declaration of the 1st Ministerial Meeting of the Latin American States Affected by Transnational Interests (Declaration) adopted in Guayaquil, Ecuador on April 22, 2013 is one recent example of such initiatives.
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Ngobeni, Lawrence. "Do the SALINI Criteria apply to the Definition of an Investment provided in Annex 1 of the 2006 and 2016 SADC Protocol on Finance and Investment? An Assessment." Potchefstroom Electronic Law Journal 23 (July 1, 2020): 1–33. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a5132.
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An investment is the subject matter of an investor-state dispute. Therefore there can be no such dispute if there is no investment to which the dispute relates. The challenge in this regard lies in that there is no uniform definition of an investment in international economic law, and with regard to investor-state disputes in particular. Bilateral Treaty Agreements (BITs), Treaties with Investment Provisions (TIPs), investment contracts and legislation provide different definitions of an investment. However, these definitions are not always final or sufficient, since there are different methods of assessing the existence of an investment, depending on the applicable arbitration rules. Arbitration tribunals formed in terms of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID Convention) follow a two-step process, which starts with a consideration of the definition of an investment in terms of the underlying regulatory instrument, followed by a consideration of the provisions of Article 25(1) of the ICSID Convention. Salini Construttori S.P.A and Italstrade S.P.A v Kingdom of Morocco is a landmark ICSID case that proposed the criteria that an investment must meet. On the other hand, investor-state arbitrations based on the UNCITRAL Rules Arbitration or other non-ICSID rules consider the definition of an investment provided in a regulatory instrument only. However, the tribunal in Romak S.A (Switzerland) v Republic of Uzbekistan held that the Salini criteria are applicable to UNCITRAL arbitration, and by implication, other non-CSID arbitrations. The 2006 Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP) defines an investment as any asset group, while the 2016 Annex 1 defines an investment as an incorporated enterprise. Furthermore, the 2006 Annex 1 refers disputes to ICSID or UNCITRAL arbitration, while the 2016 Annex 1 refers disputes to the courts of host states. This article explores the responses of selected tribunals to the Salini criteria. It seeks to determine whether the Salini criteria can be applied to the 2006 and/or 2016 Annex 1, and if so, what the implications thereof are to the scope of investments that can be covered by these instruments.
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Bakhshali Zeynalli, Nargiz. "MOST-FAVORED NATION TREATMENT CLAUSE IN INVESTMENT ARBITRATION." SCIENTIFIC WORK 65, no. 04 (April 23, 2021): 379–82. http://dx.doi.org/10.36719/2663-4619/65/379-382.
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Bilateral and regional investment agreements have proliferated in the last decade and new ones are still being negotiated. Most-Favored-Nation (MFN) clauses link investment agreements by ensuring that the parties to one treaty provide treatment no less favorable than the treatment they provide under other treaties in areas covered by the clause. MFN clauses have thus become a significant instrument of economic liberalization in the investment area. Moreover, by giving the investors of all the parties benefiting from a country’s MFN clause the right, in similar circumstances, to treatment no less favorable than a country’s closest or most influential partners can negotiate on the matters the clause covers, MFN avoids economic distortions that would occur through more selective country-by-country liberalization. Such a treatment may result from the implementation of treaties, legislative or administrative acts of the country and also by mere practice. The present article provides a factual survey of jurisprudence and related literature on MFN treaty clauses in investment agreements with a view to contributing a better understanding of the MFN interfaces between such agreements. Key words: dispute resolution, foreign investment, ICSID, most-favored nation treatment, third party treaty, mandate of the arbitration tribunal, a selective import
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Salomon, Claudia T., and Sandra Friedrich. "Investment Arbitration in East Asia and the Pacific." Journal of World Investment & Trade 16, no. 5-6 (November 13, 2015): 800–842. http://dx.doi.org/10.1163/22119000-01606002.
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Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region’s continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IIAs. On the heels of this development, the region has seen a rising number of investment arbitrations. As of December 2014, at least 49 investment arbitrations have been brought against EAP countries and/or by EAP investors. Most recently, the number of new cases has picked up pace significantly, making the region a veritable ‘hot bed’ of investment arbitration.
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Gattini, Andrea. "Jurisdiction ratione temporis in International Investment Arbitration." Law & Practice of International Courts and Tribunals 16, no. 1 (June 21, 2017): 139–58. http://dx.doi.org/10.1163/15718034-12341345.
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Issues concerning the temporal scope of jurisdiction of international investment arbitration tribunals are attracting increased attention due to recent events, such as the denunciation of the icsid Convention by some states, the denunciation of bilateral investment treaties from which the tribunals draw their jurisdiction, or the provisional application of other treaties concerning investment protection. The solutions offered by most arbitral tribunals are in line with international customary rules on the law of treaties, a point which deserves attention as further proof of the cohesiveness of international investment law with public international law.
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Bonnitcha, Jonathan. "International Investment Arbitration in Myanmar: Bounded Rationality, But Not as We Know It." Journal of World Investment & Trade 18, no. 5-6 (December 7, 2017): 974–1000. http://dx.doi.org/10.1163/22119000-12340068.
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Abstract In 2011, following almost fifty years of one-party military rule, Myanmar began a process of transition toward democracy. Alongside this process, the Government of Myanmar is pursuing a variety of reforms in the hope of attracting new foreign investment. This article examines elements of the national and international legal environment governing foreign investment in Myanmar. The focus is on Myanmar’s current approach to investment treaties and Myanmar’s experience of investor-state arbitration under such treaties to date, although the article also reviews Myanmar’s national laws that are relevant to international investment arbitration, notably its laws on foreign investment and on arbitration. The article highlights Myanmar’s position to date as a ‘rule-taker’ in the investment treaty regime. It draws attention to important differences between Myanmar’s experience with investment treaties and the experiences of other developing countries, as well as possible points of similarity.
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Elfakharani, Ashraf M. A., Rohana Abdul Rahman, Hamza E. Albaheth, and Nor Anita Abdullah. "Bilateral Investment Treaties and the Increase in Egyptian Appearances before International Arbitration Tribunals." African Journal of International and Comparative Law 29, no. 1 (February 2021): 40–61. http://dx.doi.org/10.3366/ajicl.2021.0349.
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Bilateral investment treaties (BITs), as the name indicates, are meant to govern investment relations between two signatory states. In this context, Egypt holds a significant place among all respondent states, having to face a very high number of legal issues from foreign investors. These cases are pending before several international investment tribunals and Egypt is facing claims of over USD 20 billion annually from its foreign investors. In spite of such a grim situation, there are legal arbitrations that have increased the appearance of Egypt in international arbitration forums. There are several reasons for such a situation to arise, mainly because of the governmental measures towards foreign investors and interests. This article argues that in spite of the unspecified criteria shown towards foreign investors, the Bilateral Investment Treaty's items have played a vital role in increasing Egyptian appearances.
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Milano, Enrico. "The Investment Arbitration between Italy and Cuba: The Application of Customary International Law under Scrutiny." Law & Practice of International Courts and Tribunals 11, no. 3 (2012): 499–524. http://dx.doi.org/10.1163/15718034-12341237.
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Abstract The present article describes the arbitral proceedings in the investment dispute between Italy and Cuba, with special regard for the Final Award rendered in 2008. The arbitration has raised a number of interesting issues in the application of customary international law, including the admissibility of claims in diplomatic protection in investment disputes under a BIT, the application of the rule on the exhaustion of local remedies, the attribution of acts of State-owned enterprises to the State and the use of general international law as a means to interpret treaty provisions defining the scope of the BIT. Some of these aspects have proved particularly controversial, as shown by the thorough dissenting opinion attached by arbitrator Tanzi, and they are critically analysed. The arbitration confirms the profound interdependence of bilateral treaties and customary international law in international investment arbitration.
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Upreti, Pratyush Nath. "The Role of National and International Intellectual Property Law and Policy in Reconceptualising the Definition of Investment." IIC - International Review of Intellectual Property and Competition Law 52, no. 2 (January 27, 2021): 103–36. http://dx.doi.org/10.1007/s40319-020-01009-7.
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AbstractThis article analyses the role of national and international intellectual property (IP) law in assessing IP as a protected investment. It offers two approaches for controlling investment arbitration related to intellectual property rights (IPRs), followed by an examination of the implications and challenges of those approaches. Its main argument is that even if a dispute arises from an investment (IP as an investment), it does not necessarily fall under the jurisdictional requirements of investment arbitration. Rather, assessing IP as an investment must be done by referring to national laws. This is more relevant in the case of IPRs as they are territorial. This means that rights and obligations are derived from national IP legislation. Essentially, only those IPRs that are “protected” by national regimes should be treated as investments. This article also examines the language used in investment agreements and arbitral awards to analyse the role of national law, particularly in determining the validity and scope of IP investments. Then it examines three IP-related arbitral cases to discuss how arbitral tribunals have used national law. Finally, it suggests approaches for controlling investment arbitration by integrating the territoriality principle and the social objectives and bargains achieved through international IP treaties.
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McDonnell, Bianca. "Theodoros Adamakopoulos and Others v. Republic of Cyprus, ICSID Case No ARB/15/49, Decision on Jurisdiction, 7 February 2020." European Investment Law and Arbitration Review Online 5, no. 1 (December 11, 2020): 315–29. http://dx.doi.org/10.1163/24689017_013.
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This case note examines the findings of the Tribunal in the Decision on Jurisdiction in Adamakopoulos v. Cyprus, focusing on Respondent’s objections based on the alleged incompatibility of the BIT S and the EU Treaties, and the mass claim nature of the proceeding. The decision of the majority of the Tribunal in dismissing the EU law objection adds to a body of investment arbitration jurisprudence in which similar reasoning has been used to dismiss comparable objections. However, the dissenting opinion of Marcelo Kohen is the first time that an arbitrator, presented with an intra- EU investment arbitration claim, has considered that the tribunal lacks jurisdiction on the basis of the incompatibility between the relevant BIT S and EU law. Furthermore, Adamakopoulos is one of the few ‘mass claim’ arbitrations brought under the ICSID Rules. If it proceeds to the merits stage as planned, it will provide an opportunity for the Tribunal to resolve questions regarding the management of the procedure under the ICSID framework with such a large group of claimants, whilst maintaining the right to be heard, procedural equality and fairness.
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Crivellaro, Antonio. "Consolidation of Arbitral and Court Proceedings in Investment Disputes." Law & Practice of International Courts and Tribunals 4, no. 3 (2005): 371–420. http://dx.doi.org/10.1163/157180305774859578.
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AbstractThis contribution focuses on consolidation between arbitration and court proceedings in investment (or "investor-to-State") disputes, which are usually referred to arbitration pursuant to the forum selection clauses of the relevant Bilateral Investment Treaties ("BITS"). Before addressing consolidation in investment disputes, the experience gained in the same matter in international commercial arbitration will be considered. After a preliminary analysis, comparative observations will follow.
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Dewi, Yetty Komalasari, and Arie Afriansyah. "DISPUTE SETTLEMENT MECHANISM IN BILATERAL INVESTMENT TREATIES (BITS)." Yuridika 34, no. 1 (January 1, 2019): 151. http://dx.doi.org/10.20473/ydk.v34i1.11403.
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In various countries, BITs are not always the same, but most of them contain many commitments or promises to protect the investment and investors of a country ("investors") in the territory of another country ("host country").[1] This protection includes treatment that is fair, equal and not discriminatory in overseeing the implementation of investment agreements and other obligations related to investment. The important thing is, in most cases, this kind of protection is accompanied by a very strong international arbitration mechanism that allows investors to file a lawsuit directly against a host country that is suspected of violating the protection under international law. Capability of investors to "enforce" their rights directly on a country without an arbitration agreement is considered as one of the extraordinary achievements of BIT innovation.
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Allee, Todd, and Clint Peinhardt. "Evaluating Three Explanations for the Design of Bilateral Investment Treaties." World Politics 66, no. 1 (December 29, 2013): 47–87. http://dx.doi.org/10.1017/s0043887113000324.
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Although many features of bilateral investment treaties (BITs) are consistent from one agreement to the next, a closer look reveals that the treaties exhibit considerable variation in terms of their enforcement provisions, which legal scholars have singled out as the central component of the treaties. An original data set is compiled that captures three important treaty-design differences: whether the parties consent in advance to international arbitration, whether they allow treaty obligations to be enforced before an institutionalized arbitration body, and how many arbitration options are specified for enforcement. Drawing upon several relevant literatures on international institutions, three potentially generalizable explanations for this important treaty variation are articulated and tested. The strongest support is found for the theoretical perspective that emphasizes the bargaining power and preferences of capital-exporting states, which use the treaties to codify strong, credible investor protections in all their treaties. Empirical tests consistently reveal that treaties contain strong enforcement provisions—in which the parties preconsent to multiple, often institutionalized arbitration options—when the capital-exporting treaty partner has considerable bargaining power and contains domestic actors that prefer such arrangements, such as large multinational corporations or right-wing governments. In contrast, there is no evidence to support the popular hands-tying explanation, which predicts that investment-seeking states with the most severe credibility problems, due to poor reputations or weak domestic institutions, will bind themselves to treaties with stronger investment protections. likewise, little support is found for explanations derived from the project on the rational design of international institutions, which discounts the identities and preferences of the treaty partners and instead emphasizes the structural conditions they jointly face. In sum, this foundational study of differences across investment treaties suggests that the design of treaties is driven by powerful states, which include elements in the treaties that serve their interests, regardless of the treaty partner or the current strategic setting.
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Ansari Mahyari, Alireza, and Leila Raisi. "INTERNATIONAL STANDARDS OF INVESTMENT IN INTERNATIONAL ARBITRATION PROCEDURE AND INVESTMENT TREATIES." Jurídicas 15, no. 2 (July 1, 2018): 11–35. http://dx.doi.org/10.17151/jurid.2018.15.2.2.
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Apostolova, Kate. "Portigon v Spain: new frontiers for financial institutions in investor–state arbitration?" Arbitration International 36, no. 4 (November 5, 2020): 601–9. http://dx.doi.org/10.1093/arbint/aiaa045.
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Abstract Historically, financial institutions have preferred litigation over arbitration as a dispute resolution mechanism. In recent years, however, financial institutions have turned to international arbitration more often. This is reflected in the 2018 Queen Mary International Arbitration Survey which concluded that financial institutions are ‘contemplating arbitration with much greater interest than ever before’. In addition to incorporating international arbitration clauses more often in their contracts, financial institutions have become increasingly aware of the protections established by international investment treaties and are more actively seeking to benefit from the rights they establish for qualifying investors. A recent decision has revealed how important those rights could be. In August 2020, for the first time in investor–state arbitration, in Portigon v Spain, a tribunal found that a financial institution may seek protection under an investment treaty for project finance because project finance, in the form of long-term loans and swaps, constitutes a protected ‘investment’ under the relevant investment treaty. While the decision remains confidential as of the publication of this article, it is an opportune moment to review the proposition that project financiers may seek protection under investment treaties against state actions that affect adversely the projects they are financing.
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Khalid, Muhammad, and Tansif Ur Rehman. "Investment Protection Under Bilateral Investment Treaties of Pakistan." International Journal of Asian Business and Information Management 11, no. 4 (October 2020): 44–53. http://dx.doi.org/10.4018/ijabim.2020100104.
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This research is carried out to explore the BITs of Pakistan and its effects on bringing much needed foreign investment in Pakistan, which is considered a backbone for the economic development for any country. The research reveals that the BITs entered by Pakistan remained a ceremonial gesture to improve the economic relations of Pakistan with other countries without even analyzing the contents of these treaties. Due to this unawareness at the government level, BITs are becoming more nuisance as they give rise to the international investment disputes at international forums, where Pakistan is exposed to investment claims and the cost of international arbitration. Keeping in view of these aims, this research article highlights the pros and cons of the BITs regime of Pakistan with a hope that in future, a careful analysis may be undertaken before entering into such type of treaties.
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Manukyan, Mushegh. "Hidden in the curtain of Article 44: formation rules of arbitration agreements and ICSID Arbitration Rules." Arbitration International 36, no. 1 (March 1, 2020): 67–85. http://dx.doi.org/10.1093/arbint/aiaa001.
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Abstract This article surveys the practice of the application of Article 44 of the International Centre for Settlement of Investment Disputes (ICSID) Convention. It shows that ICSID arbitrations pursuant to bilateral investment treaties have been historically subjected to the ICSID Arbitration Rules in effect on the date when investors institute proceedings. But it appears that this is mainly because the parties specifically agree to apply the latest ICSID Arbitration Rules. The article invites a discussion on a technique, which might lead to the application of not necessarily the latest ICSID Rules. The article focuses on the traditional formation rules of arbitration agreements, namely that an arbitration agreement is formed based on the terms of the State’s offer to arbitrate. To that end, the proposed approach allows to argue that the investor who accepts the State’s offer to arbitrate tacitly accepts also the ICSID Arbitration Rules effective at the time when the State made the offer to arbitrate. The article explains that Article 44 includes a possibility to apply the orthodox formation rules thereby showing a greater respect to the parties’ consent.
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Nottage, Luke. "Rebalancing Investment Treaties and Investor-State Arbitration: Two Approaches." Journal of World Investment & Trade 17, no. 6 (November 24, 2016): 1015–40. http://dx.doi.org/10.1163/22119000-12340026.
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This essay reviews two books suggesting how international investment law may be recalibrated to balance the interests of foreign investors and host states. Poulsen’s book draws mainly on empirical research to argue that developing states displayed ‘bounded rationality’ when rushing to sign up to investment treaties incorporating pro-investor protections, such investor-state arbitration. Although mainly descriptive, it sketches potential reforms of the investment treaty system to achieve a more rational balance in favour of host states. By contrast, drawing on doctrinal analysis but with a keen awareness of the institutional underpinnings of international investment law and arguably analogous fields, the book by Henckels focuses on what arbitrators and commentators can do to extend a tendency to interpret substantive protections even within existing investment treaties in a more balanced way. She urges more consistent application of multi-layered ‘proportionality’ analysis, combined with principled ‘deference’ to regulatory decision-making by host states.
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Weeramantry, Romesh. "International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?" Journal of World Investment & Trade 18, no. 5-6 (December 7, 2017): 942–73. http://dx.doi.org/10.1163/22119000-12340067.
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Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.
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Wei, Shen. "Parallel Proceedings under Chinese BITs: The Case of Hela Schwarz GmbH v PR China." Journal of International Dispute Settlement 11, no. 2 (March 16, 2020): 335–63. http://dx.doi.org/10.1093/jnlids/idaa004.
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Abstract Classic issues in international commercial arbitration such as parallel proceedings also emerge in international investment arbitration. The parallel existence of international investment arbitration and domestic litigation deserves careful analysis for the sake of international legal certainty and security. Given a small number of international investment arbitration cases involving China and its bilateral investment treaties (BITs), the issue of parallel proceedings in Chinese BIT law and practice is underinvestigated. This article tries to look into this issue by reference to the case of Hela Schwarz GmbH v PR China, an ongoing BIT arbitration case registered with the International Centre for Settlement of Investment Disputes. Some improvements have been made to relevant jurisdictional clauses in China’s more recent free trade agreements filling the gap in this grey area.
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Hepburn, Jarrod. "Domestic Investment Statutes In International Law." American Journal of International Law 112, no. 4 (October 2018): 658–706. http://dx.doi.org/10.1017/ajil.2018.85.
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AbstractAlongside now-controversial investment treaties, many states also maintain domestic investment statutes. Although these laws offer protections similar to investment treaties and are increasingly applied in investor-state arbitration, they have—unlike the treaties—attracted limited scholarly scrutiny. This article argues that investment statutes can plausibly be characterized either as unilateral acts in international law or as domestic law. The article examines the significant consequences that follow from these characterizations, providing the first comprehensive analysis of these hybrid statutes.
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Sampliner, Gary, and Ruth Teitelbaum. "Investor-State Treaty-Based Arbitration in 2004." Law & Practice of International Courts and Tribunals 4, no. 3 (2005): 465–89. http://dx.doi.org/10.1163/157180305774859622.
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AbstractThe year 2004 was an active year for both the filing and rendering of decisions in investor-State treaty-based arbitrations. New decisions addressed a wide variety of issues relating to the jurisdiction and admissibility of claims under international investment treaties, as well as the coverage and meaning of their substantive provisions. This article analyzes the decisions issued in 2004 by investor-State tribunals and in annulment proceedings. It also describes developments occurring during the year concerning transparency and accountability in investor-State arbitration.
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de Nanteuil, Arnaud. "Counterclaims in Investment Arbitration: Old Questions, New Answers?" Law & Practice of International Courts and Tribunals 17, no. 2 (August 17, 2018): 374–92. http://dx.doi.org/10.1163/15718034-12341385.
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Abstract There have been several cases involving counterclaims in recent investment arbitration practice. Though counterclaims are well-known in international litigation, they raise special issues when it comes to investor-State arbitration, especially when it is based on treaties that recognize only rights and not obligations of private parties; thus, a counterclaim may be a way of rebalancing investment law, by allowing States to file claims against investors. However, certain conditions must be fulfilled which are not always easy to combine with the special features of investment arbitration. That is what this article explores, in order to determine whether counterclaims could be a way of addressing the critique that has been recently formulated against investment arbitration.
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Bakhshali Zeynalli, Nargiz. "SIGNIFICANCE OF UMBRELLA CLAUSES IN INTERNATIONAL INVESTMENT LAW." SCIENTIFIC WORK 65, no. 04 (April 23, 2021): 362–65. http://dx.doi.org/10.36719/2663-4619/65/362-365.
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A large number of investment treaties contain provisions, often referred to as ‘umbrella clauses’, that require host states to respect non-treaty commitments and obligations made to foreign investment covered by the treaty. This article examines the general nature of umbrella clauses, their historical background, the various forms that they can take, and their application by arbitral tribunals. In view of the unsettled state of the jurisprudence on umbrella clauses, the article concludes with a suggested framework of analysis for applying umbrella clauses to specific investments, setting out a number of questions which persons applying umbrella clauses should seek to address. Key words: arbitration, umbrella clauses, international treaty obligations, foreign investment, bilateral investment treaties, contractual obligations
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Begić-Šarkinović, Taida. "Human rights issues in investment arbitration cases: A new perspective?" Pravni zapisi 11, no. 2 (2020): 532–53. http://dx.doi.org/10.5937/pravzap0-28839.
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This article addresses recent human rights matters in the context of treaty-based investment arbitration. After having analyzed two recent arbitral awards, Urbaser v. Argentina and Bear Creek v. Peru, the article argues that host states' counterclaims on the basis of human rights can serve as an effective vehicle for rebalancing investors' rights and regulatory powers of host states. Both cases illustrate a more progressive approach of investment arbitral tribunals when dealing with human rights issues. Host states' counterclaims can also provide a door for arbitrating corporate-related human rights violations in the sense that they can ensure the application of international human rights law in investment arbitration cases. International investment promotion for sustainable development requires rebalancing the rights and obligations of states and investors which could help ensure corporate human rights accountability. In this regard, international investment treaties have to be renegotiated in order to include more human rights content targeting investors' human rights conduct and in that way provide a more balanced approach when disputes arise.
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Bergman, Neale H. "United Nations Convention on Transparency in Treaty-based Investor-State Arbitration." International Legal Materials 54, no. 4 (August 2015): 747–57. http://dx.doi.org/10.5305/intelegamate.54.4.0747.
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On December 10, 2014, the United Nations General Assembly adopted the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, also known as the Mauritius Convention on Transparency, which was prepared by the United Nations Commission on International Trade Law (UNCITRAL). The Mauritius Convention is intended to provide states with an efficient mechanism for applying the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (Transparency Rules) in investor-state arbitrations arising under investment treaties concluded before the Transparency Rules’ effective date of April 1, 2014. The Mauritius Convention was opened for signature on March 17, 2015, in Port Louis, Mauritius.
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Chung, Kyongwha. "Emergency Arbitrator Procedure in Investment Treaty Disputes: To Be or Not To Be." Journal of World Investment & Trade 20, no. 1 (February 11, 2019): 98–145. http://dx.doi.org/10.1163/22119000-12340124.
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Abstract The emergency arbitrator is a person appointed to grant emergency relief pending the constitution of an arbitral tribunal. Numerous arbitral institutions started to introduce the emergency arbitrator procedure in order to provide a more effective system for the protection and preservation of parties’ rights. However, the ICSID Convention and the UNCITRAL Arbitration Rules, which are the most common dispute resolution rules used in investment treaties, do not recognize the emergency arbitrator procedure. By contrast, the Stockholm Chamber of Commerce (SCC) allows the application of its emergency arbitrator rules in investment treaty disputes. In fact, there have been seven recent cases in which investors used the SCC Rules to seek emergency relief. This article evaluates introducing the emergency arbitrator procedure in investment treaty disputes. It discusses possible objections by States and concludes that the procedure is not inconsistent with the features of investment treaty disputes.
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Huang, Jie (Jeanne), and Dan Xie. "Data Protection Law in Investment Arbitration: Applicable or Not?" Arbitration International 37, no. 1 (February 22, 2021): 167–96. http://dx.doi.org/10.1093/arbint/aiaa031.
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Abstract Two recent cases, Tennant Energy v Canada and Elliott Associates v Korea, demonstrate an emerging yet unresolved applicable law issue in investment arbitration: whether a local personal data protection law should be applied in the absence of parties’ choice. This articlexplores this issue from three different dimensions: (i) the relevant law applicable to an arbitration (eg treaties and arbitration rules); (ii) the connecting factors between an arbitration and local data protection law; and (iii) the immunities or privileges, if any, under public international law. It proposes that the connecting factors between an arbitration and a local personal data protection law should be considered with the privileges and immunities under public international law. This proposed approach can provide predictability and certainty to the applicable law. Importantly, it can also protect the integrity and impartiality of an investment arbitration from the impacts of local laws.
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Schill, Stephan W. "System-Building in Investment Treaty Arbitration and Lawmaking." German Law Journal 12, no. 5 (May 1, 2011): 1083–110. http://dx.doi.org/10.1017/s2071832200017235.
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Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.
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Viktorova, N. N. "EVOLUTION OF THE LEGAL CONCEPT OF "FOREIGN INVESTMENT" IN A NETWORK SOCIETY." Lex Russica, no. 11 (November 22, 2019): 88–95. http://dx.doi.org/10.17803/1729-5920.2019.156.11.088-095.
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The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.
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Malanczuk, Peter. "Investment Protection of Commercial Activities in Space: Treaties, Contracts, Licenses, Insurance, Arbitration." Journal of World Investment & Trade 19, no. 5-6 (October 15, 2018): 951–1000. http://dx.doi.org/10.1163/22119000-12340116.
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Abstract The article focuses on the protection of foreign investment against political risk in the host state regarding commercial activities in outer space, an area not subject to national appropriation and sovereignty. The general space treaty and national legal frameworks for such activities fail to address the needs of private space enterprises. Under international investment law, commercial space activities generally meet common subject matter scope definitions of ‘investment’ and ‘investor’ in investment treaties. But foreign acquisitions in the space industry may affect national security interests of the host state and be limited as a sector for foreign investment. Moreover, as investment treaties generally cover an investment only if it is made in the territory of the host state, uncertainties may arise as to whether activities and assets of space enterprises in outer space are covered.
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Sabahi, Borzu, Ian A. Laird, and Giovanna E. Gismondi. "International Investment Law and Arbitration: History, Modern Practice, and Future Prospects." Brill Research Perspectives in International Investment Law and Arbitration 1, no. 1 (February 1, 2018): 1–64. http://dx.doi.org/10.1163/24055778-12340001.
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AbstractInternational Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (bits), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modernbits. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of thenaftare-negotiations is also presented, including the impact thatceta, a trade deal between theeuand Canada could have in the outcome of the current re-negotiations.
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De Brabandere, Eric. "Reforming Investment Law and Arbitration and the “New Economic World Order”: Between Myth and Reality." Proceedings of the ASIL Annual Meeting 114 (2020): 67–70. http://dx.doi.org/10.1017/amp.2021.25.
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Investment law and arbitration are currently the subject of profound reform discussions. Whether the investment law and arbitration reforms and reform proposals can properly be categorized as “old tools” that are used in “new ways,” and more generally whether the reforms in the end will result in a “new economic world order” remains however to be seen. I argue that the “old tools” in international investment law and arbitration are not always simply “old tools” or an exercise in conservativism. Notably when one looks at substantive norms in investment treaties, the apparent “old tools” have been perfected and modernized. In other instances, such as the proposal for an “investment court,” which could hardly be considered an “old tool,” reform proposals do not seem to radically shift the investment regime toward a “new economic world order.”
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Kryvoi, Yarik. "ECONOMIC CRIMES IN INTERNATIONAL INVESTMENT LAW." International and Comparative Law Quarterly 67, no. 3 (May 7, 2018): 577–605. http://dx.doi.org/10.1017/s0020589318000131.
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AbstractThe protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes. It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes. The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.
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Lawry-White, Merryl. "International Investment Arbitration in a Jus Post Bellum Framework." Journal of World Investment & Trade 16, no. 4 (July 11, 2015): 633–65. http://dx.doi.org/10.1163/22119000-01604004.
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Reaffirming the rule of law and redressing harm to rights are key considerations in the search for a just and sustainable peace. Post-conflict claims for damage to alien property have a long history. The extensive network of investment treaties and relevant protections contained therein suggest that investment arbitration tribunals may play a role in re-establishing respect for international norms post-conflict. Tribunals may also, however, detract from the peacebuilding process if they do not consider the broader context in which they are operating. There is an inherent tension in urging specialist, ad hoc bodies with limited jurisdiction to consider a wide range of circumstances, interests and norms. Yet, as this article demonstrates, the nature of investment treaties and applicable protections, defences, justifications, and procedural tools, afford tribunals avenues to take a broader view of relevant legal norms and of the circumstances and interests implicated in the claim.
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KANG, Taewook. "Problems of Investor-State Dispute Settlement (ISDS)." Journal of Advanced Research in Law and Economics 10, no. 2 (March 31, 2020): 561. http://dx.doi.org/10.14505//jarle.v10.2(40).16.
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The research deals with Problems of Investor-State Dispute Settlement (ISDS) focused on Investment Arbitration. The author especially focuses on the problems under BIT (Bilateral Investment Treaties) and FTA (Free Trade Agreements. Mentioned in this article, International investment disputes are generated due to host countries and foreign investors. ISDS is Dispute settlements between investors and countries. This is not suit proceedings but arbitration proceedings. That is, ‘activities of the third party to arbitrate and settle disputes by intervening between parties in dispute. ’However, Dispute Settlement through this way, is it really reasonable and fair system? If it is indeed fair and reasonable system, advanced countries like the United States and Australia would not have abandoned it. Therefore, the investment arbitration system is never a dispute settlement proceeding that has been verified and stabilized internationally.
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Ahmad, Jawad. "Slowakische Republik (Slovak Republic) v. Achmea BV (C.J.E.U.)." International Legal Materials 58, no. 5 (June 2019): 1101–13. http://dx.doi.org/10.1017/ilm.2019.39.
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On March 6, 2018, the Court of Justice of the European Union (CJEU) found in Slowakische Republik (Slovak Republic) v. Achmea B.V. that the arbitration agreement contained in the 1991 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic (BIT) had an adverse effect on the autonomy of EU law and, thus, was incompatible with EU law. This important decision has ignited a debate on the compatibility of other arbitration agreements in both intra-EU bilateral investment treaties (intra-EU BITs) and in the Energy Charter Treaty (ECT) with EU law.
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Nriezedi-Anejionu, Chinenyendo. "Could the Non-domestication of Nigerian Treaties Affect International Energy Investment Attraction into the Country?" African Journal of International and Comparative Law 28, no. 1 (February 2020): 122–44. http://dx.doi.org/10.3366/ajicl.2020.0305.
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In a bid to attract foreign direct investments (FDI) into the energy sector, Nigeria has signed many investment and energy-related treaties. However, many of these treaties have not been ratified and domesticated as required by the 1999 Nigerian Constitution and as such cannot be applied by domestic courts when necessary. This raises serious legal questions on the status of the various energy investment-relevant treaties Nigeria has signed. This is especially relevant to bilateral investment treaties (BITs) where their non-domestication renders their provisions not legally binding on domestic courts. It becomes problematic in situations where certain provisions in BITs such as the exhaustion of local remedies (ELR), fork-in-the-road (FITR), denial of justice and expropriation claims, require disputes to be addressed (at least initially) in domestic courts before international arbitration is accessed. This article provides an analysis of various ways non-domestication of treaties could affect the investment interests of a dualist country such as Nigeria that is actively seeking to attract FDI for the development of its energy sector. Pointing out the implications and various ways both investors' and Nigeria's interests could be undermined, it argues for a reform in the way treaties are implemented in Nigeria to facilitate their domestication.
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Fietta, S., and J. Upcher. "Public International Law, Investment Treaties and Commercial Arbitration: an emerging system of complementarity?" Arbitration International 29, no. 2 (June 1, 2013): 187–222. http://dx.doi.org/10.1093/arbitration/29.2.187.
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Hailu, MB, and TE Kassahun. "Rethinking Ethiopia’s Bilateral Investment Treaties in light of Recent Developments in International Investment Arbitration." Mizan Law Review 8, no. 1 (January 22, 2015): 117. http://dx.doi.org/10.4314/mlr.v8i1.4.
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Aisbett, Emma, and Jonathan Bonnitcha. "A Pareto-Improving Compensation Rule for Investment Treaties." Journal of International Economic Law 24, no. 1 (February 26, 2021): 181–202. http://dx.doi.org/10.1093/jiel/jgab006.
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ABSTRACT Investment treaties grant foreign investors legal rights to compensation for losses caused by certain host state conduct. Many states are reconsidering their involvement in these treaties because they perceive the risks to outweigh the benefits. We start from the normative premise that participation in investment treaties should benefit both ‘host’ and ‘home’ states. Using a law and economics approach, we model a variety of common fact scenarios that arise in investment treaty arbitration. Our modelling demonstrates that being party to an investment treaty does not necessarily benefit a host state. The objective of mutual benefits would be achieved if investment treaties were modified to provide only the minimum protection necessary to solve time inconsistency problems for the host state and, thereby, deter opportunistic conduct. The treaties should not place wider constraints on legal and policy change. Our specific proposal is that a state should only have to compensate the investor if it breaches or modifies the domestic legal regime governing the investment and that compensation should be the lesser of the investor’s loss and the host state’s gain from the host state not having had the new legal regime in place when the investment was made.
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Zrilič, Jure. "International Investment Law in the Context of Jus Post Bellum: Are Investment Treaties Likely to Facilitate or Hinder the Transition to Peace?" Journal of World Investment & Trade 16, no. 4 (July 11, 2015): 604–32. http://dx.doi.org/10.1163/22119000-01604003.
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This article seeks to explore how international investment treaties interact with the transition from armed conflict to peace. While the protection of foreign investors in conflict and post-conflict environments is a necessary requirement for re-establishing the rule of law and attracting new capital that is needed for rebuilding the wrecked economy, the threat of excessive arbitration claims may also complicate the delicate process of creating a stable political order. The article compares traditional, government-to-government methods of settling post-conflict international claims with investor-state arbitration. Unlike investors, governments will usually base their decision about raising a conflict-related claim on a number of extra-legal considerations, such as conditions for sustainable peace. These considerations will often reflect in the amount and the method of payment of post-conflict compensation. The article looks at the investment arbitration practice and identifies certain interpretive tools that take better account of post-conflict realities and lead to more balanced awards.
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Bishop, R. Doak. "Introductory Remarks by R. Doak Bishop." Proceedings of the ASIL Annual Meeting 111 (2017): 43–44. http://dx.doi.org/10.1017/amp.2017.58.
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Welcome to our roundtable discussion on the balancing of rights and obligations of states and investors. In the past fifteen years, the number of investor-state disputes has grown exponentially, mainly as a result of arbitration clauses contained in investment treaties. The significant number of publicly available decisions and awards has allowed us to form views—and concerns—about both process and outcomes. Some of the concerns have led to the introduction of changes, not only in treaties but also in underlying investment policies. In some instances, states have issued interpretations of particular provisions. In recent years, multilateral initiatives have developed recommendations on how future investment treaties might be improved.