Books: 'Bilateral investment treaty (BIT)'

1

Hallward-Driemeier, Mary. Do bilateral investment treaties attract foreign direct investment?: Only a bit ... and they could bite. Washington, D.C: World Bank, 2003.

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2

United States. Congress. Senate. Committee on Foreign Relations. Bilateral Investment Treaty with Panama and Business and Economic Relations Treaty with Poland: Report (to accompany Treaty doc. 99-14 and Treaty doc. 101-18). [Washington, D.C.?: U.S. G.P.O., 1990.

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3

State liability in investment treaty arbitration: Global constitutional and administrative law in the BIT generation. Oxford: Hart, 2012.

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4

State liability in investment treaty arbitration: Global constitutional and administrative law in the BIT generation. Oxford: Hart Pub., 2009.

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5

Shuang bian tou zi tiao yue yu Zhongguo neng yuan tou zi an quan: Bilateral investment treaty and protection on energy investment of China. Shanghai Shi: Fu dan da xue chu ban she, 2012.

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6

Bilateral investment treaties with Azerbaijan, Bahrain, Bolivia, Croatia, El Salvador, Honduras, Jordan, Lithuania, Mozambique, Uzbekistan, and a protocol amending the bilateral investment treaty with Panama: Report (to accompany treaty docs. 106-47; 106-25; 106-26; 106-29; 106-28; 106- 27; 106-30; 106-42; 106-31; 104-25; and 106-46). [Washington, D.C: U.S. G.P.O., 2000.

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7

Jing wai tou zi fa gui jie du ji shuang bian tou zi bao hu xie ding ying yong: ANALYSIS OF LAWS AND REGULATIONS ON OUTBOUND INVESTMENT AND APPLICATION OF BILATERAL INVESTMENT TREATY. Beijing Shi: Fa lü chu ban she, 2013.

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8

United States. Congress. Senate. Committee on Foreign Relations. Bilateral investment treaties, Treaty docs. 99-14 and 101-18: Hearing before the Committee on Foreign Relations, United States Senate, One Hundred First Congress, second session, September 18, 1990. Washington: U.S. G.P.O., 1990.

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9

United States. Congress. Senate. Committee on Foreign Relations. Bilateral investment treaties with Argentina, Treat doc. 103-2, Armenia, Treaty doc. 103-11, Bulgaria, Treaty doc. 103-3, Ecuador, Treat doc. 103-15, Kazakhstan, Treaty doc. 103-12, Kyrgyzstan, Treaty doc. 103-13, Moldova, Treaty doc. 103-14, and Romania, Treaty doc. 102-36: Hearing before the Committee on Foreign Relations, United States Senate, One Hundred Third Congress, first session, September 10, 1993. Washington: U.S. G.P.O., 1993.

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10

United States. Congress. Senate. Committee on Foreign Relations. Bilateral investment treaties with Argentina, Treat doc. 103-2; Armenia, Treaty doc. 103-11; Bulgaria, Treaty doc. 103-3; Ecuador, Treat doc. 103-15; Kazakhstan, Treaty doc. 103-12; Kyrgyzstan, Treaty doc. 103-13; Moldova, Treaty doc. 103-14; and Romania, Treaty doc. 102-36: Hearing before the Committee on Foreign Relations, United States Senate, One Hundred Third Congress, first session, September 10, 1993. Washington: U.S. G.P.O., 1993.

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11

United States. Congress. Senate. Committee on Foreign Relations. Protocols amending the existing bilateral investment treaties with new European Union member nations: Report (to accompany Treaty Docs. 108-13, 108-15, 108-17, 108-18, 108-19, 108-20, 108-21, and 108-22). [Washington, D.C: U.S. G.P.O., 2004.

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12

Relations, United States Congress Senate Committee on Foreign. Bilateral treaties concerning the encouragement and reciprocal protection of investment, Treaty doc. 104-19 ... 103-36 ... 103-38 ... 104-13 ... 103-35 ... 104-12 ... 104-10 ... 104-14 ... 103-37 ...: Hearing before the Committee on Foreign Relations, United States Senate, One Hundred Fourth Congress, first session, November 30, 1995. Washington: U.S. G.P.O., 1996.

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13

Ranjan, Prabhash. India and Bilateral Investment Treaties. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780199493746.001.0001.

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Many countries have started contesting international investment treaties that allow foreign corporations to sue sovereign states for alleged treaty breaches at international arbitration forums. This contestation has taken the form of either countries terminating their investment treaties or walking out of the investor–state dispute settlement (ISDS) system. India has also jumped on the contestation bandwagon. As a consequence of being sued by more than 20 foreign investors, India terminated close to 60 investment treaties and adopted a new Model bilateral investment treaty (BIT) purportedly to balance investment protection with the host state’s right to regulate. This book critically studies India’s approach towards BITs by tracing the origin, evolution, and the current state of play. The book does so by locating it in India’s economic policy in general and policy towards foreign investment in particular. India’s approach towards BITs and India’s policy towards foreign investment were consistent with each other in the periods of economic nationalism (1947 to 1990) and economic liberalism (1991 to 2010). However, post 2010; India’s approach to BITs has become protectionist while India’s foreign investment policy continues to be liberal. In order to balance investment protection with the state’s right to regulate, India needs to evolve its BIT practice based on the twin framework of international rule of law and embedded liberalism.

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14

Norah, Gallagher, and Shan Wenhua. 6 Umbrella Clause and Investment Contracts. Oxford University Press, 2009. http://dx.doi.org/10.1093/law:iic/9780199230259.003.006.

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The “umbrella clause” takes its name from its main objective, namely to oblige the host state to observe any commitments it has entered into with regard to foreign investors. The clause brings such obligations of the state under the protection of an applicable international investment treaty, bilateral investment treaty (BIT), or multilateral treaty. This chapter begins by reviewing the evolution of the umbrella clause and how it has been applied by investment treaty tribunals. It then examines the main variants of umbrella clauses in Chinese BITs and discusses their legal effect in light of this recent jurisprudence. It moves on to analyze the impact, if any, of these clauses on investment contracts in China, including joint venture contracts, joint exploitation of onshore and offshore petroleum resources contracts, and build-operate-transfer contracts. The chapter concludes with an analysis of the implications of umbrella clauses and investment contracts on dispute-resolution planning for foreign investors.

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15

Jeswald W, Salacuse. 13 Other Treatment Standards. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.003.0013.

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In addition to the usual treaty standards, individual investment treaties may impose other obligations on host states with respect to their treatment of investments and investors. Although these obligations were rarely the subject of arbitration or litigation in the early years of the bilateral investment treaty (BIT) movement, investors have increasingly alleged their violation in investor–state arbitral proceedings. This chapter discusses these treatment standards, including treatment with respect to performance requirements; the entry and residence of foreign nationals and managerial personnel; compensation for losses due to war, revolution, and civil disturbance; transparency and regulatory due process; and the subrogation obligation.

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16

Norah, Gallagher, and Shan Wenhua. Chinese Investment Treaties. Oxford University Press, 2009. http://dx.doi.org/10.1093/law:iic/9780199230259.001.1.

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China's success in attracting foreign direct investment (FDI) in the last decade is undisputed and unprecedented. It is currently the second largest FDI recipient in the world, a success partially due to China's efforts to enter into bilateral investment treaties (BITs) and other international investment instruments. This book is a comprehensive commentary on Chinese BITs. Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Given the continuous growth of FDI in China, the emergence of state-investor disagreements in China, and the dramatic rise of investment treaty based arbitrations world wide in recent years, it is anticipated that there will be an increasing number of investment arbitrations involving the central and local governments of China. This book reviews and analyzes China's approach to foreign investment. It considers the current role of investment treaties in China's foreign economic policy, analyzes and interprets the key provisions of the BITs, and discusses the future agenda of China's investment program. It looks at how this investment regime interconnects with the domestic system and considers the implications for a foreign investor in China.

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17

Campbell, McLachlan, Shore Laurence, and Weiniger Matthew. Part I Overview, 2 The Basic Features of Investment Treaties. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199676798.003.0002.

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Chapter 2 introduces the reader to the basic features of investment treaties, with particular emphasis on two types of treaties under which investment arbitrations have arisen: bilateral investment treaties (BITs) and multilateral investment treaties. It first discusses the structure of BITs, focusing on provisions in such areas as substantive rights, compensation for losses (war clause), free transfer of payments, dispute settlement, and subrogation. It then examines the common provisions of four major multilateral investment treaties, namely: NAFTA; the Energy Charter Treaty; the ASEAN Comprehensive Investment Agreement and the newly-concluded Trans-Pacific Partnership Agreement (not yet in force).

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18

Norah, Gallagher, and Shan Wenhua. 2 Scope And Definition. Oxford University Press, 2009. http://dx.doi.org/10.1093/law:iic/9780199230259.003.002.

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A bilateral investment treaty (BIT) is relevant for a particular arbitration case only when the case falls within its scope of application. Normally the scope of application of a treaty includes four aspects: subject matter (ratione materiae), covered persons and entities (ratione personae), territorial application, and temporal application. The Chinese BITs are not an exception to this but they do, however, raise some special, perhaps unique, questions. This chapter deals with the four aspects on the scope of application, with special attention to those issues with “Chinese characteristics”. It also deals briefly with the issue of investment admission, which has been left, by and large, within the discretion of the host state.

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19

Broude, Tomer, Yoram Z. Haftel, and Alexander Thompson. Who Cares about Regulatory Space in BITs? A Comparative International Approach. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190697570.003.0024.

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Regulatory space has become one of the buzzwords of the debate on international investment protection law. Critics claim that investment law unduly constrains states’ regulatory space. Proponents contest that claim. This chapter analyzes state sensitivity to constraints on regulatory space from a comparative perspective, on the basis of quantitative analysis of textual coding of investor-state dispute settlement provisions in renegotiated bilateral investment treaties. The chapter is comprised of six sections. Section I is an introduction covering the impact of investor-state dispute settlement on state regulatory space. Section II discusses bilateral treaty-making and comparative international law research. Section III describes the comparative landscape of renegotiated BITs, and Section IV provides a comparative BIT content analysis and SRS. Section V sets forth a comparative empirical analysis of ISDS provisions. Section VI presents conclusions.

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20

Qureshi, Khawar. Bilateral Investment Treaty Claims: The Essentials. Wildy, Simmonds & Hill Publishing, 2016.

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21

Norah, Gallagher, and Shan Wenhua. 5 Monetary Transfer. Oxford University Press, 2009. http://dx.doi.org/10.1093/law:iic/9780199230259.003.005.

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The transfer or repatriation of funds provision in bilateral investment treaties (BITs) is at the heart of the object and purpose of an investment treaty. The main aim of BITs is to encourage investment by investors of one state into the other state. This chapter discusses the types of payments covered in the repatriation provisions in China's BITs. It includes the scope of the clause and whether it covers both outward and inward transfer of funds. It looks at the types of payments that are covered by the transfer provisions and whether it is an illustrative list or an exhaustive one. It then considers the important provision on convertibility and exchange rates, what they mean, and when they are designated. Finally, the chapter looks at provisions typical to China's BIT provisions on transfer of funds, in particular the limitation on monetary transfers to compliance with “domestic laws and regulations.” The chapter also considers briefly the impact of the pending litigation before the ECJ against several member states on the scope of the transfer provisions in some of their BITs (including some with China) entered into before acceding to the EC Treaty.

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22

Antonio R, Parra. 11 “The Premier International Investment Arbitration Facility in the World”. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198767466.003.0011.

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This chapter examines activities of the Centre from the start of 2011 to the end of June 2015. Almost 50 percent more cases were registered at ICSID in that period compared to the previous five years. The chapter provides some statistics on the cases of this period. As in the decade before, it shows, most the cases were brought to ICSID on the basis of the dispute settlement provisions of investment treaties, mostly bilateral investment treaties (BITs) (in over 60 percent of the cases). A large proportion of the cases (more than ten percent) came to ICSID under the Energy Charter Treaty (ECT). Cases submitted to the Centre pursuant to the dispute resolution clauses of investment contracts made up for a smaller share of the total. A handful (5 percent) of the cases were initiated under dispute settlement provisions of an investment law of the host State. The chapter then looks at institutional developments of ICSID during the period and considers new challenges that ICSID might meet in the future.

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23

Myers, Greg. U. S. Bilateral Investment Treaty Program and Foreign Direct Investment Flows. Nova Science Publishers, Incorporated, 2013.

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24

Campbell, McLachlan, Shore Laurence, and Weiniger Matthew. Part I Overview, 3 Dispute Resolution Provisions. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199676798.003.0003.

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Chapter 3 examines those aspects of dispute resolution provisions commonly found in bilateral investment treaties (BITs), with particular emphasis on four fundamental issues in the settlement of investment disputes through arbitration: (1) the clauses in investment treaties that provide for investor–State arbitration, focusing on the issue of the existence and limits of the consent to arbitrate; (2) transparency and the extent to which non-parties may be heard in the process; (3) the legal nature of the rights contained in investment treaties within the choice of law framework applicable to investment arbitration, in which both international law and host State law have a role to play; and (4) the overall approach to be taken to the interpretation of BITs under the general rule of interpretation provided in the Vienna Convention. The chapter concludes by discussing the role precedent plays in the development of investment treaty law.

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25

Hallward-Driemeier, Mary. Do Bilateral Investment Treaties Attract Foreign Direct Investment? Only a Bit … and They Could Bite. The World Bank, 2003. http://dx.doi.org/10.1596/1813-9450-3121.

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26

Broadbent, Meredith, and Robbins Pancake. Reinvigorating the U. S. Bilateral Investment Treaty Program: A Tool to Promote Trade and Economic Development. Rowman & Littlefield Publishers, Incorporated, 2012.

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27

Katia, Yannaca-Small, and Katsikis Dimitrios. Part III Guide to Key Jurisdictional Issues, 11 The Meaning of ‘Investment’ in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0011.

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Despite the growing number of investor-state arbitrations and resulting jurisprudence, there is still no consensus on the criteria of investment. This chapter first examines the way ‘investment’ is ‘defined’ in bilateral investment treaties and other international investment agreements, as well as the meaning of investment in the International Centre for Settlement of Investment Dispute (ICSID) Convention. It then considers aspects of the arbitral jurisprudence on certain types of assets constituting an investment; the ‘objective’ and ‘subjective’ approach to interpreting definitions of ‘investment’; the characteristics that have been considered to be criteria of an investment; and the requirements that, to be protected, an ‘investment’ must be (i) made in accordance with the host State’s law and (ii) in the territory of the host State.

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28

Schill, Stephan W. Sources of International Investment Law. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0051.

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This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources. The chapter then considers the pre-eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field. Next, the chapter looks at the increasing influence of comparative law and the influence of soft law instruments. It argues that the specific sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of those active in the field.

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29

Chaisse, Julien, ed. China's International Investment Strategy. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198827450.001.0001.

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The phenomenal story of China’s ‘unprecedented disposition to engage the international legal order’ has been primarily told and examined by political scientists and economists. Since China adopted its ‘open door’ policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market and aimed at attracting foreign investment to fuel its economic development, the underlying policy for mobilizing inward foreign direct investment (IFDI) remains unchanged to date. With the 1997 launch of the ‘Going Global’ policy, an outward focus regarding foreign investment has been added, to circumvent trade barriers and improve the competitiveness of Chinese firms, typically its state-owned enterprises (SOEs). In order to accommodate inward and outward FDI, China’s participation in the international investment regime has underpinned its efforts to join multi-lateral investment-related legal instruments and conclude international investment agreements (IIAs). China began by selectively concluding bilateral investment treaties (BITs) with developed countries (major capital exporting states to China at that time), signing its first BIT with Sweden in 1982. Despite being a latecomer, over time China’s experience and practice with the international investment regime have allowed it to evolve towards liberalizing its IIAs regime and balancing the duties and benefits associated with IIAs. The book spans a broad spectrum of China’s contemporary international investment law and policy: domestic foreign investment law and reforms, tax policy, bilateral investment treaties, free trade agreements, G20 initiatives, the ‘One Belt One Road’ initiative, international dispute resolution, and inter-regime coordination.

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30

David W, Rivkin, and Friedman Mark W. 5 Financial Products as Investments under Bilateral Investment Treaties and Other Multilateral Instruments with Consents to Arbitration. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199687862.003.0005.

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This chapter discusses the status of financial products as qualifying investments under bilateral and multilateral treaties that contain protections for foreign investment, including the signatory States' consent to submit investor-State disputes to international arbitration. It first describes how an investor and a State consent to proceed to arbitration under such a treaty. Second, it discusses how a qualifying investment is generally defined for purposes of investor-State treaty arbitration. Third, it addresses significant treaty and case law developments relating specifically to financial products — such as loan agreements, sovereign bonds, and derivatives — as qualifying investments. These developments shed light on the key questions of whether an investment exists; whether the investment was made in the territory of the host State; and whether the investment was made by the claimant investor. The chapter concludes with comments on the trend favouring inclusion of financial instruments within the definition of investment.

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31

US GOVERNMENT. Bilateral investment treaties with Argentina, Treat doc. 103-2; Armenia, Treaty doc. 103-11; Bulgaria, Treaty doc. 103-3; Ecuador, Treat doc. 103-15; Kazakhstan, ... first session, September 10, 1993 (S. hrg). For sale by the U.S. G.P.O., Supt. of Docs., Congressional Sales Office, 1993.

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32

US GOVERNMENT. Bilateral treaties concerning the encouragement and reciprocal protection of investment, Treaty doc. 104-19 ... 103-36 ... 103-38 ... 104-13 ... 103-35 ... first session, November 30, 1995 (S. hrg). For sale by the U.S. G.P.O., Supt. of Docs., Congressional Sales Office, 1996.

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33

Michael D, Nolan, Sourgens Frédéric Gilles, and Carlson Hugh. Leviathan on Life Support? Restructuring Sovereign Debt and International Investment Protection After Abaclat. Oxford University Press, 2013. http://dx.doi.org/10.1093/law-iic/9780199983025.016.0012.

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This chapter focuses on the 2011 jurisdictional decision in Abaclat et al. v. Argentina, the first International Centre for Settlement of Investment Disputes (ICSID) decision to green-light a group bondholder claim brought pursuant to a bilateral investment treaty following a sovereign debt restructuring. The decision was subject to a substantial dissent. It is argued that the majority, as well as the dissenting opinion should have accorded greater interpretative significance to the ordinary meaning of the treaty text and the drafting history of the ICSID Convention. In particular, more attention should have been paid to determining what is unique about sovereign bonds, rather than devoting substantial eff ort to debating whether debt obligations constitute “investments” for the purposes of Article 25(1) ICSID Convention.

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34

Milanka, Kostadinova. Part II Guide to Key Preliminary and Procedural Issues, 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0006.

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The institution of treaty-based proceedings in a particular forum or under particular set of arbitration rules depends on the consent provisions of the underlying investment treaty. Some 767 arbitration cases have been initiated so far under the total of 3,324 bilateral investment treaties and other international investment agreements signed to date. This chapter provides an overview of the technical and fairly complex procedures for initiating proceedings and constituting tribunals in investment treaty arbitration. It examines the prevalent practices from the perspective of the International Centre for Settlement of Investment Dispute (ICSID) Convention and Rules, and other leading sets of international arbitration rules such as the United Nations Commission on International Trade Law Arbitration Rules, the Rules of Arbitration of the International Chamber of Commerce, and the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, which are among the non-ICSID Rules more commonly referenced in investment treaties.

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35

Cordonier Segger, Marie-Claire. Crafting Trade and Investment Accords for Sustainable Development. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198831341.001.0001.

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International law guides globalization and the future of the world economy, affecting all people and our planet. Rules governing trade and investment could continue to be represented only by Hermes, the Greek god of thieves and commerce, or also draw inspiration from Athena, representing justice, wisdom and craftsmanship. This volume explores how economic treaties could be better crafted to foster—rather than frustrate—sustainable development. It explains how leading actors identify potential social and environmental impacts of shifting capital, goods and services, and pilot new economic instruments to enhance sustainability. Based on a review of World Trade Organisation (WTO) debates and over 110 other economic accords, the volume highlights innovative measures adopted by States from a selection of regional and bilateral trade and investment accords, exploring their implications for a new generation of economic agreements, including the United Kingdom’s next steps and the proposed Agreement on Climate Change, Trade and Sustainability (ACCTS). The author, an award-winning expert jurist and renowned professor of international law, examines how sustainability and justice commitments can be operationalized in treaty texts themselves, steering vital trade, investment and finance towards the world’s Sustainable Development Goals (SDGs). Adopting a ground-breaking, inter-actional and systematic approach, with examples spanning several decades of experimentation and experience, she proposes carefully crafting of legal principles and rules to contribute to sustainability. By integrating social, environmental and economic priorities, she argues, States and stakeholders can weave new rules for our common future, towards a more inclusive, greener global economy.

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Antonio R, Parra. 9 ICSID from 1989 to 1999. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198767466.003.0009.

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This chapter deals with the last year of the 1980s and all of the subsequent decade. Though mostly placid for ICSID, the period was one of momentous change elsewhere in the World Bank Group and, of course, in the world at large. Section I describes the growing network of investment treaties, which was to have a tremendous impact on ICSID. The Multilateral Agreement on Investment episode is also discussed. There were many new signatures and ratifications of the ICSID Convention in the 1990s. They are recounted in Section II, which also looks at the working of the ICSID Secretariat during the decade. An overview of the cases submitted to ICSID between 1989 and 2000 is provided in Section III. Among them were the first Additional Facility cases. The Additional Facility cases, six of which were brought to the Centre under the investment chapter of the NAFTA, are examined in Section IV. The potential of bilateral investment treaties (BITs) to generate cases for ICSID started to be realized in earnest in this period. Several of the new BIT cases led to decisions that were particularly influential in the development of subsequent jurisprudence. These leading BIT cases are examined in Section V.

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Kaj, Hobér, and Eliasson Nils. Part VI The Post-Award Phase, 28 Review of non-ICSID Awards by National Courts. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0028.

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In investment arbitration, just as in private commercial, the final award is often merely the starting shot for challenge and/or enforcement proceedings that may take as long as, or even longer than, the prior proceedings. This chapter discusses the challenge and review of investment treaty awards in municipal courts, based on 38 cases from 12 different jurisdictions: Belgium, Canada, Czech Republic, England, France, Germany, The Netherlands, Russia, Sweden, Switzerland, Singapore, and the United States. Most Canadian and US cases challenge NAFTA awards, whereas most European cases challenge bilateral investment treaty awards. The remaining cases challenge awards under the Energy Charter Treaty, one challenge of a decision on jurisdiction under the Kyrgyz Foreign Investment Law, and two challenges of awards under the CIS Convention for the Protection of Investors Rights. These jurisdictions are frequently chosen as the seat of non-ICSID arbitrations.

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38

Norah, Gallagher, and Shan Wenhua. 8 Settlement Of Investor–State Disputes. Oxford University Press, 2009. http://dx.doi.org/10.1093/law:iic/9780199230259.003.008.

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The dispute-resolution provisions in bilateral investment treaties (BITs) have become the “ultimate” investor protection in modern investment treaties. This chapter reviews the different types of dispute-resolution provisions of the Chinese BITs. It first looks at the choice of arbitrations made in its treaties, ICSID, ad hoc, or other arbitration rules. It then continues to review the two main types of investor-state dispute-resolution clauses in China's BITs: restrictive—where the BIT permits international arbitration of disputes on the amount of compensation for expropriation only; and more liberal or expansive—which allows access to international arbitration for all disputes between the investor and host state. It then considers a topic of particular interest right now for investors and potential investors in China: the application of the MFN clause to dispute resolution. Finally, it looks at the applicable law to dispute settlement and the requirement to exhaust domestic remedies.

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39

Javier, El-Hage. How May Tribunals Apply the Customary Necessity Rule to the Argentine Cases? An Analysis of ICSID Decisions with Respect to the Interaction between Article XI of the U.S.-Argentina BIT and the Customary Rule of Necessity. Oxford University Press, 2013. http://dx.doi.org/10.1093/law-iic/9780199983025.016.0011.

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This chapter addresses the question of why the nine decisions from the International Centre for Settlement of Investment Disputes (ICSID) arising under the treaty between the United States of America and the Argentine Republic concerning the reciprocal encouragement and protection of investment have been so inconsistent in the face of largely undisputed facts and identical legal norms. It first sets forth, in abstract, a set of interpretive parameters and corresponding legal rationales that may be followed by tribunals when dealing with situations in which treaty and customary international law rules interact. It then analyzes each of the Argentine decisions according to the interaction rationales chosen by tribunals and committees, with a specific focus on the consistency of their own arguments for the application of the rule of necessity of customary international law.

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40

Jeffery, Commission, and Moloo Rahim. 6 Non-Disputing Party Participation and Transparency. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0006.

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This chapter examines the issue of transparency in treaty-based investment arbitration by focusing on the participation of third parties or non-disputing parties in disputes. More specifically, it considers the procedural issues that transparency mechanisms in bilateral-investment treaties and free-trade agreements, as well as in recently revised arbitral rules, create for arbitral tribunals and those appearing before them. After discussing non-disputing party practice in investment arbitrations, the chapter explains the practice of non-disputing state parties in UNCITRAL and International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It also analyses transparency mechanisms beyond the participation of non-disputing parties in investment arbitrations from the written procedure through to the oral procedure, culminating in a tribunal's decisions and award.

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41

Katia, Yannaca-Small. Part III Guide to Key Jurisdictional Issues, 16 The Umbrella Clause: Is the Umbrella Closing? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0016.

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‘Umbrella clauses’ are inserted in treaties to provide additional protection to investors and are directed at covering investment agreements that host countries frequently conclude with foreign investors. Inclusion of umbrella clauses in investment treaties provides a mechanism to make host States’ promises ‘enforceable’ and comes as an additional protection of investor-state contracts, which raises the controversial issue of whether the umbrella clause seeks to elevate contractual breaches to treaty breaches. For a better understanding of the clause, this chapter (i) gives an overview of its history; (ii) briefly discusses the significance of the language included in a number of bilateral investment treaties; and (iii) looks at the effect, scope and conditions of application of the umbrella clause as interpreted by arbitral tribunals.

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Katia, Yannaca-Small, and Earnest David. Part II Guide to Key Preliminary and Procedural Issues, 7 The Fate of Frivolous and Unmeritorious Claims. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0007.

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Abstract:

The term ‘frivolous’ is sometimes used to describe a claim which is filed with knowledge that it has little or no chance of succeeding. This chapter examines the procedures available under international investment agreements and international arbitration rules to address on a preliminary and expedited basis claims that are frivolous in the sense of being baseless and unmeritorious, regardless of claimant’s motives. The current trend towards preliminary and expedited consideration of a request that an application in investor-state arbitration be dismissed as frivolous is rooted in the 2004 US Model Bilateral Investment Treaty and the 2006 amendment to the International Centre for Settlement of Investment Dispute (ICSID) Rule 41(5). There is also an emerging focus on the summary disposition of such frivolous claims in international arbitration rules traditionally concerned with commercial arbitration.

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Abby Cohen, Smutny, Polášek Petr, and Farrell Chad. Part IV Guide to Key Substantive Issues, 23 The MFN Clause and Its Evolving Boundaries. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0023.

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This chapter discusses most-favoured-nation (MFN) clauses from early references in trade agreements to contemporary references in investor-state arbitrations. MFN clauses originated in early international trade practice and have continued to be incorporated in modern trade and investment treaties, both bilateral and multilateral. Their intended purpose is to lessen discrimination and encourage the growth of trade and foreign investment by ensuring that certain defined benefits accorded to one set of States (or their nationals, investments, goods, etc.) are extended to other States (or their nationals, investments, goods, etc.). In the investment treaty context, some commentators have observed that the right to a favourable dispute settlement mechanism is the primary concern of foreign investors, and investors often invoke MFN clauses to secure procedural rights that might otherwise be unavailable to them.

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Georgios, Petrochilos. Part III Guide to Key Jurisdictional Issues, 14 Attribution: State Organs and Entities Exercising Elements of Governmental Authority. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0014.

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This chapter discusses the issue of attribution in investment treaties. Attribution is the legal operation by which the allegedly wrongful deed is connected to the State as the doer. This is a necessary operation, serving as it does the needs of the unitary conception of the State in international law: the conduct of the multitude of persons and entities through whom the State in fact operates must be funnelled through the rules on attribution. The vast majority of investment treaties do not contain special rules of attribution, so they are to be read in the light of general international law in that respect. Arguably, however, exceptions setting forth a lex specialis may be found in the NAFTA Agreement, the Energy Charter Treaty, and certain U.S. bilateral investment treaties which contain provisions in respect of State enterprises and monopolies.

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Irmgard, Marboe. 2 The Function of Compensation and Damages. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198749936.003.0002.

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This chapter analyses the function of compensation and damages in international investment disputes. It shows that compensation upon expropriation serves a different function than damages after an unlawful act, be it breach of a treaty, such as a BIT, or a contract. While the former aims at the restitution of the ‘value’ of the expropriated property, the latter aims at providing “reparation” for the damage caused by the unlawful act. It follows that expropriation compensation should be equivalent to the ‘objective’ value of the expropriated asset while an amount of damages may also include subjective valuation approaches.

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Books on the topic 'Bilateral investment treaty (BIT)'

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