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1
Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. Springer Berlin Heidelberg, 2020. http://dx.doi.org/10.1007/978-3-662-59732-3.
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Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. Springer International Publishing, 2018. http://dx.doi.org/10.1007/978-3-030-01189-5.
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Bungenberg, Marc. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of Investor-State Dispute Settlement. Springer Nature, 2020.
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4
Tribunal, Financial Services. The Financial Services Tribunal in the matter of Noble Warren Investments Ltd and in the matter of Richard James Noble Warren and in the matter of the Financial Services Act 1986: Report and conclusions of the Tribunal constituted under the above-mentioned Act. Securities and Investments Board, 1989.
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5
Rica, Costa, ed. Ley de protección al representante de casas extranjeras: Anotada con la jurisprudencia da la Sala Constitucional, de la Sala Primera de la Corte Suprema de Justicia y de los Tribunales Superiores. CRECEX, Cámara de Comercio Exterior, 2005.
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6
Nick, Gallus. The Temporal Jurisdiction of International Tribunals. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198791676.001.0001.
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The period of an international tribunal’s temporal jurisdiction is the span of time during which an act must have occurred before the tribunal may consider if the act breached an obligation. There are many questions concerning this particular aspect of an international tribunal’s jurisdiction. Does a tribunal have power over acts that occurred after the entry into force of the obligation allegedly breached but before the tribunal’s jurisdiction was accepted? What about acts that began before the tribunal’s jurisdiction was accepted but continued after? To what extent can acts before the period of the tribunal’s jurisdiction affect its decision on whether or not there is a breach through acts afterwards?This book examines these questions in depth. Despite its importance, the temporal jurisdiction of international tribunals is not well understood. Tribunals often confuse different aspects of their jurisdiction and refuse to hear cases they should have heard, or agree to hear cases they should not. This book reduces this confusion by clarifying the different limits on the temporal jurisdiction of international tribunals and the important distinctions between those limits. The book examines the temporal limits resulting from the entry into force of the obligation allegedly breached, from the acceptance of the tribunal's jurisdiction, and from the period of limitation, as well as the effect of acts that occurred before these limits. The book comprehensively compares decisions from a wide variety of sources including the International Court of Justice Human Rights Courts World Trade Organization panels and investment treaty tribunals. It comments on decisions that arose from some of the most notorious events of the twentieth century including the ‘Katyn Massacre’ of the Second World War the 1994 Rwandan genocide and the ‘forced disappearance’ of American political opponents. It reviews these decisions and identifies common principles that help define the temporal jurisdiction of tribunals to decide breaches of international law.
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Campbell, McLachlan, Shore Laurence, and Weiniger Matthew. International Investment Arbitration. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199676798.001.0001.
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This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.
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Ian A, Laird, Sabahi Borzu, Sourgens Frédéric Gilles, Birch Nicholas J, and Duggal Kabir. International investment law and arbitration. Oxford University Press, 2014. http://dx.doi.org/10.1093/law-iic/9780199386321.016.0002.
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This chapter is organized into five sections, focusing on issues addressed by tribunals and courts in 2012 related to Jurisdiction, Merits, Compensation and Non-pecuniary Remedies, Procedure and Annulment, and Enforcement of Awards. Section A discusses the grounds for jurisdictional challenge by respondents. Section B provides a summary review of the merits decisions of the past year, showing that the fair and equitable treatment standard remains a primary basis for the awards of tribunals, with a resurgence of decisions by tribunals accepting that investments were expropriated without compensation. Section C reviews the eight awards in which compensation was granted in 2012. Section D addresses questions of procedure that arose in 2012. Finally, Section E reviews the two International Centre for Settlement of Investment Disputes ad hoc annulment committee decisions of the past year, plus a number of domestic court decisions regarding the enforcement of awards.
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Ortino, Federico. The Origin and Evolution of Investment Treaty Standards. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198842637.001.0001.
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This book provides a conceptual and legal analysis of the core of investment protection guarantees that emerge from international treaties signed since 1959 for the promotion and protection of foreign investment. It focuses on both the origin and evolution of investment treaty standards. In terms of origin, the work considers the broader context at the time when the first modern investment treaty was concluded. In terms of evolution, the work examines (a) the many decisions of ad hoc arbitral tribunals that have been called upon to apply these treaties in order to resolve the several hundred investor–State disputes, as well as (b) some of the recent investment treaties that in the past ten to fifteen years have attempted to clarify and/or reform the content and scope of investment protection guarantees. This study posits that the key investment protection provisions in investment treaties (and thus much of the related controversy) revolve around three distinct concepts: legal stability, investment’s value and reasonableness. This book advances two main arguments. First, from the very beginning, the protection afforded to foreign investments by modern investment treaties has been an exceptionally broad one and as such restrictive of the host State’s ability to regulate. Second, while a growing number of investment treaty tribunals as well as new investment treaties have to some extent reined in such broad protections, the evolution of key investment protection standards has been (and in many ways still is) marred by inconsistency and uncertainty.
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Aloysius P, Llamzon. Corruption in International Investment Arbitration. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780198714262.001.0001.
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This text presents a study on corruption in international investment arbitration. The book considers the limited effectiveness of efforts to combat transnational corruption in international law and the emergence of international investment arbitration as a singular means for effective control of corruption within the international legal order. The case law on corruption by investment tribunals is studied exhaustively, jurisprudential trends are identified, and reforms aimed at enhancing the effectiveness and fairness of investment arbitration as a mechanism to combat corruption are proposed. The book is divided into three parts. Part I focuses on the phenomenon of corruption in foreign investment and attempts at its control through international law. Part II analyses the available case law in international investment arbitration dealing with corruption. The text identifies nine distinct trends emerging from the case law and provides a table summarizing the key areas of corruption decision-making and each relevant tribunal's approach, which is an invaluable tool for practitioners engaging in ‘live’ issues of corruption within arbitral proceedings. Part III reflects on the implications of these trends for both the ‘supply’ and ‘demand’ sides of corruption in international law, and proposes a integrative framework of decision for corruption issues in international investment arbitration.
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Ursula, Kriebaum, Schreuer Christoph, and Dolzer Rudolf. Principles of International Investment Law. 3rd ed. Oxford University Press, 2022. http://dx.doi.org/10.1093/law/9780192857804.001.0001.
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This book outlines the principles behind the international law of foreign investment, focussing on the law governed by bilateral and multilateral investment treaties. The book traces the purpose, context, and evolution of the clauses and provisions characteristic of contemporary investment treaties, and analyses the case law, interpreting the issues raised by standard clauses. Particular consideration is given to broad treaty rules whose understanding in practice has mainly been shaped by their interpretation and application by international tribunals. In addition, the book describes the dispute settlement mechanisms for enforcing investment law, outlining the operation of Investor v State arbitration. This third edition has been fully updated to reflect the evolution of treaty practice, jurisprudence, and doctrinal opinion, covering new treaties such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), United States–Mexico–Canada Agreement (USMCA), and the Comprehensive Economic and Trade Agreement (CETA). Each chapter is introduced by a bibliography of recent publications. Combining a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals, the book offers an ideal introduction to the principles of international investment law and arbitration, for students and practitioners alike.
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Gabrielle, Kaufmann-Kohler, Antonietti Aurélia, and Potestà Michele. Part V Remedies and Costs, 24 Interim Relief in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0024.
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This chapter reviews the requirements for a party to obtain interim relief from an arbitral tribunal, the measures that can be ordered, their nature, and effects. It also considers whether the parties to the dispute can seek interim relief from domestic courts rather than from the arbitral tribunal. The scope of the interim relief available in the context of investor-state disputes is broad enough to meet the parties’ legitimate needs for temporary protection, subject to limitations which may be found in the relevant treaty, such as the ones contained in NAFTA Article 1134. However, applicants are also faced with a high threshold when seeking to establish that the interim relief requested is urgent and needed. This may explain the reluctance of many tribunals to grant interim relief in the context of investor-state arbitration, whether in the International Centre for Settlement of Investment Dispute (ICSID) system or under the United Nations Commission on International Trade Law Rules.
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Nigel, Blackaby, and Wilbraham Alex. Part V Remedies and Costs, 26 Third-party Funding in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0026.
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This chapter discusses the issue of third-party funding in international investment arbitration. Third-party funding has become an established part of the investment arbitration landscape. Despite criticism in some quarters, tribunals and international arbitral bodies have tended to favour the view that third-party funding promotes access to justice rather than encouraging frivolous claims. Tribunals have consistently held that receipt of third-party funding is unlikely to affect a claimant’s position from a jurisdictional perspective and will not affect a claimant’s ability to recover legal costs in cases where tribunals make costs awards. The costs of third-party funding itself may be recoverable in some circumstances. There is a growing tendency among tribunals to require disclosure by funded claimants of the existence and identity of third-party funders. It is, however, unlikely that claimants will commonly be required to disclose the terms of any funding agreement except in rare cases when security for costs is being considered.
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Silja, Schaffstein. Part II The Doctrine of Res Judicata in International Commercial Arbitration, 3 Res Judicata Issues Arise in International Commercial Arbitration. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198715610.003.0004.
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This chapter presents varying situations in which issues concerning the res judicata doctrine arise before arbitral tribunals. These situations may be sorted into four categories, based on the nature of the court or tribunal having rendered the first final and binding decision. First, situations that arise between arbitral tribunals and state courts; second, between different arbitral tribunals; third, within a same arbitration proceeding between a partial and a final award and lastly, between supra national courts or tribunals and arbitral tribunals. The fourth category concerns mostly investment protection treaty cases. Because of the proliferation of multiple proceedings and an increasing bifurcation of arbitration proceedings, the number of cases in which arbitrators will have to deal with res judicata issues will also increase.
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Jonathan, Bonnitcha, Skovgaard Poulsen Lauge N, and Waibel Michael. 4 Standards of Investment Protection. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198719540.003.0004.
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This chapter introduces the substantive obligations in investment treaties. Most offer a common core of six substantive protections to foreign investors. The chapter first considers the two ‘relative’ standards of protection—most-favoured nation treatment and national treatment. It then turns to four ‘absolute’ standards of protection: expropriation, fair and equitable treatment, umbrella clauses, and free transfer of funds. The third section examines carve-outs that remove certain state measures from the scope of application of investment treaties, defences that can justify or excuse breaches of investment treaty protections, and the standard of review that tribunals apply when examining host state conduct. The fourth and final section discusses the calculation of compensation or damages if host states have breached investment treaties.
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Jeffery, Commission, and Moloo Rahim. 5 The Splitting of Issues for Separate Determination (Bifurcation/Trifurcation). Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0005.
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This chapter focuses on one of the most important procedural decisions a tribunal can make in an investment arbitration: the bifurcation or trifurcation of issues into separate phases. The rationale behind bifurcation/trifurcation is straightforward: bifurcation may result in the narrowing or even dismissal of claims, but can significantly increase the costs and duration of an arbitration. This has not gone unnoticed by users of the International Centre for Settlement of Investment Disputes (ICSID) and other systems of dispute settlement. After discussing the relevant arbitration rules that govern the decisions of arbitral tribunals on bifurcation, the chapter considers the various procedural aspects of bifurcation requests. It also examines the number of bifurcation requests actually filed in ICSID and UNCITRAL arbitrations, how tribunals decided those requests, and the factors applied by tribunals in those decisions.
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Viñuales, Jorge E. Sources of International Investment Law. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0050.
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This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.
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Baiju S, Vasani, and Vasani Sarah Z. Part III Guide to Key Jurisdictional Issues, 12 Bifurcation of Investment Disputes. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0012.
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Bifurcation typically involves the division of arbitral proceedings into separate phases addressing jurisdiction/admissibility and the merits and, less frequently, the division of the merits phase into liability and quantum phases. However, tribunals are not restricted to bifurcating proceedings along these lines. For example, some tribunals have bifurcated proceedings in order to hear certain jurisdictional objections as preliminary issues while reserving other jurisdictional objections to be heard with parties’ arguments on the merits. Others still have ‘trifurcated’ proceedings into separate phases dealing with issues of jurisdiction, liability, and quantum. This chapter discusses factors that may provide guidance for parties in making arguments either for or against bifurcation.
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Jonathan, Bonnitcha, Skovgaard Poulsen Lauge N, and Waibel Michael. 1 The Investment Treaty Regime in Context. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198719540.003.0001.
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This chapter charts the rise of the global network of more than 3000 investment treaties and of investment treaty arbitration. Investors have used investment treaties to ask for compensation for a very wide range of government conduct. The chapter surveys the investment treaty regime and the investment regime complex. The regime consists of three main components: (i) investment treaties; (ii) the set of treaties, rules, and institutions governing investment treaty arbitration; and (iii) the decisions of arbitral tribunals applying and interpreting investment treaties. The growing role of investment treaty arbitration has made it highly controversial in both developed and developing countries, and has transformed the investment treaty regime from an obscure field of international law to a central part of the investment regime complex.
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Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of ... Yearbook of International Economic Law). Springer, 2018.
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Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of ... Yearbook of International Economic Law). Springer, 2019.
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Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of ... Yearbook of International Economic Law). Springer, 2019.
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24
Katia, Yannaca-Small, ed. Arbitration Under International Investment Agreements. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.001.0001.
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Investor-state arbitration is a form of dispute settlement that allows foreign investors the opportunity to seek compensation for damages or discriminatory practices, most of which arise out of breaches of treaty obligations by the governments of host countries. With a high level of public interest involved in these cases, the awards of these tribunals are subject to much scrutiny and debate. As a result, up-to-date knowledge of the key topics of investment arbitration is integral for those practicing in the field, especially given the rapid development of international investment law. This book describes the most important procedural and substantive aspects of investment arbitration in a practical and accessible manner. Covering all procedural stages of investor-state arbitration, the text provides a broad overview of the key topics including the role of precedent, counterclaims, third party funding, bi-trifurcation, burden of proof regarding jurisdiction, attribution, breach of treaty and contract claims, fair and equitable treatment, indirect expropriation, and culminates in the enforcement of investment awards. The text also describes the conflicts and challenges facing arbitrators from a practical perspective, providing a comprehensive insight into investor-state arbitration.
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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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Irmgard, Marboe. Calculation of Compensation and Damages in International Investment Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198749936.001.0001.
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Fully revised and updated from the successful first edition, this title analyses the practice of international courts and tribunals with regard to the valuation of investment claims against states, paying specific attention to the question of interest. This new edition incorporates new jurisprudence, updates existing cases, and includes a new section on immaterial damage. The new edition also contains extensive annexes devoted to ICSID cases and non-ICSID investment cases, as well as a table on methods of valuation in international practice.
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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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Jeffery, Commission, and Moloo Rahim. 9 Other Procedures. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0009.
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This chapter examines other procedures in investment arbitration proceedings, with particular emphasis on how International Centre for Settlement of Investment Disputes (ICSID) and UNCITRAL tribunals have addressed them in practice. ICSID has schematically set out what it describes as ‘the steps in the process’ in an ICSID arbitration using a flow chart. However, this flow chart is not able to anticipate with much certainty the potential impact of certain other procedures. The chapter first explains the determination of the legal place or seat of arbitration in non-ICSID Convention arbitrations before discussing the practice of early dismissal mechanisms, specifically, ICSID Rule 41(5) objections for manifest lack of legal merit. It then considers the question of site visits conducted by tribunals in ICSID and UNCITRAL arbitrations, the practice of tribunal-appointed experts, and requests for reconsideration. It also outlines the features of multi-party arbitration, including the procedures and issues associated with mass claims.
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Jeffery, Commission, and Moloo Rahim. 7 Evidentiary Issues. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0007.
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This chapter examines evidentiary issues that arise in investment arbitrations. It first reviews the basic procedures through which the evidentiary record is generally established in international arbitrations before discussing the procedural rules that usually apply in investment arbitration cases. In particular, it considers both the mandatory law and the specific rules that parties are likely to select as applying to an investment dispute. It then explains how tribunals in investment arbitrations have approached key evidentiary issues differently than tribunals in commercial cases, paying attention to issues relating to the collection and presentation of evidence that could apply to any investment dispute. The chapter proceeds by analysing unique evidentiary issues that arise in the context of allegations of corruption and concludes with a brief overview of the unique rules for amicus-curiae submissions that address an additional source that arbitral tribunals may take into account in investment, but generally not commercial, arbitrations.
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Aloysius P, Llamzon. Part III Towards a Jurisprudence Constante in Investment Arbitration Decision-Making on Corruption, 9 Proving Corruption. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780198714262.003.0009.
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This chapter discusses the challenge faced by arbitrators in proving corruption. The absence of an unbroken chain of facts leading to a morally certain conclusion that corruption did occur necessitates reliance on longstanding legal tools familiar to national and international courts and tribunals concerning rules of evidence on standards and burdens of proof, presumptions, and inferences.
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Jeffery, Commission, and Moloo Rahim. 2 The First Procedural Order. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0002.
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This chapter considers the supplementary procedural rules that are typically decided at the outset of an investment arbitration and the process through which those rules come to be. It begins by discussing the procedural issues that parties and arbitral tribunals often see fit to address at the outset, including the procedural timetable, bifurcation, seat (if applicable), location, fees and costs, language, pleadings, discovery, witnesses, expert witnesses, amicus curiae, and confidentiality/transparency. The chapter also examines the process for deciding these procedural issues, noting that the procedure is most often a hybrid of communicating to the tribunal issues agreed by the parties and debating before the tribunal controverted procedural issues, which the tribunal then resolves. The First Procedural Order is the result of the First Procedural Conference.
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Jeswald W, Salacuse. 11 Treatment of State Obligations (the ‘Umbrella Clause’). Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.003.0011.
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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 chapter 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 chapter 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.
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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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Julien, Fouret. Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0030.
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This chapter aims to help the new investment arbitration practitioner identify and find the main legal sources for dealing with international investment law issues. Three different topics need to be addressed in order to cover, as extensively as possible, the legal issues generally raised during an arbitration based on an international investment agreement. First, even though the stare decisis rule does not exist in international arbitration, including investment arbitration, previous rulings are often used and analyzed by arbitrators. Second, when dealing with investment arbitration, it is likely that the claim will be treaty based. Finally, and most importantly, in international investment disputes, arbitral tribunals rely on all the sources of public international law identified in Article 38(1) of the Statute of the International Court of Justice, which provides for the Court to apply.
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Chin Leng, Lim. Fragrant Harbour and Oyster Mirror. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0011.
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This chapter discusses the controversy in Sanum v Lao wherein a Macanese investor sought Beijing’s treaty protection before an investment arbitration tribunal. The chapter discusses, more widely, Beijing’s regime governing the application of Chinese treaties to Macao and Hong Kong, and it discusses the Sanum affair’s broader lessons for the application and interpretation of investment treaties in the face of a bespoke devolution treaty. Finally, it discusses how two tribunals and the Singapore courts have persistently failed to recognize a requirement under two devolution agreements—the Sino–Portuguese Joint Declaration and the Sino—British Joint Declaration-for the consultation of Macao and Hong Kong as a precondition to the application of a Chinese treaty to these special administrative regions. The chapter describes how both the tribunal and the Singapore Court of Appeal forced, instead, a treaty succession solution given by the moving treaty frontiers rule.
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Reinisch, August. Introductory Note. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190923846.003.0031.
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In 2016, the jurisprudence of ICSID tribunals and ad hoc committees largely followed established lines. However, two jurisdictional decisions evidenced that the Salini test seems to have been almost eviscerated. The use of the GATS MFN clause to access investment arbitration was rejected in Menzies and forged documents led to the inadmissibility of investment claims in Churchill Mining. The Philip Morris case addressed core issues of host state regulatory measures and investment protection standards. Several cases clarified the role of compensation as a legality requirement for expropriation, while others made the due diligence standard states owe under full protection and security more precise and one tribunal held that an investor could not even import more favourable substantive standards under the applicable MFN clause. Two annulment committees ruled on the impartiality and independence of arbitrators and the issue of “surprise arguments.”
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N Jansen, Calamita. The Principle of Proportionality and the Problem of Indeterminacy in International Investment Treaties. Oxford University Press, 2015. http://dx.doi.org/10.1093/law-iic/9780190265779.016.0004.
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This chapter focuses on the principle of proportionality, examining its potential to act as a unifying guiding framework for the application and interpretation of investment treaties. It addresses threshold concerns about the legitimacy of introducing without state consent a concept that is not a general principle of law or customary norm, and then addresses whether proportionality can really be used to develop coherent treaty interpretations in the absence of fundamental agreement on questions regarding the relative strength of the rights and interests to be balanced in the analysis. It also considers the potential inutility of proportionality as a mode of analysis without agreement on the standard of review employed by tribunals in their application of a proportionality standard.
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Jeswald W, Salacuse. 16 The Consequences of Treaty Violations. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.003.0016.
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This chapter examines the consequences of treaty violations for states and the remedies available to an investment when a host state fails to provide the treatment it has promised. It first considers the fact that most investment treaties do not specifically state the consequences of a state’s breach of treaty provisions. However, on issues not specifically covered by treaty, all investment treaties authorize tribunals to apply customary international law in making decisions, including determining compensation for investments affected by the breach of treaty provisions. The chapter then discusses the application of customary international law on state responsibility and investment treaty remedies in general, citing the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the Vienna Convention on the Law of Treaties in particular. Finally there is a discussion of valuation techniques used to determine the amount of damages.due to injured investors.
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Ziccardi Capaldo, Giuliana, ed. The Global Community Yearbook of International Law and Jurisprudence 2018. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190072506.001.0001.
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The 2018 edition of The Global Community Yearbook of International Law and Jurisprudence both updates readers on the important work of long-standing international tribunals and introduces readers to more novel topics in international law. The Yearbook continues to provide expert coverage of the Court of Justice of the European Union and diverse tribunals from the International Court of Justice (ICJ) to criminal tribunals such as the International Criminal Court (ICC) and the Tribunal for the Former Yugoslavia, to economically based tribunals such as ICSID and the WTO Dispute settlement procedures. The contents of this part have been enriched with the inclusion of a new section devoted to the Permanent Court of Arbitration (PCA), the oldest global institution for the settlement of international disputes. This edition contains original research articles on the development and analysis of the concept of global law and the views of the global law theorists such as: whether the Paris Declaration of 2017 and the Oslo Recommendation of 2018 deals with enhancing their institutions’ legitimacy; how to reconcile human rights, trade law, intellectual property, investment and health law with the WTO dispute settlement panel upholding Australia’s tobacco plain packaging measure; Israel’s acceptance of Palestinian statehood contingent upon prior Palestinian “demilitarization” is potentially contrary to pertinent international law; and a proposal to strengthen cooperation between the ECJ and National Courts in light of the failure of the dialogue between the ECJ and the Italian Constitutional Court on the interpretation of Article 325 of the Treaty on the Functioning of the European union. The Yearbook provides students, scholars, and practitioners alike a valuable combination of expert discussion and direct quotes from the court opinions to which that discussion relates, as well as an annual overview of the process of cross-fertilization between international courts and tribunals.
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Aloysius P, Llamzon. Part II The Jurisprudence on Corruption in International Investment Arbitration: Case and Trend Analysis, 7 Emergent Trends. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780198714262.003.0007.
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This chapter identifies nine trends that have emerged from the two decades of arbitral treatment of corruption issues by investment tribunals. Among these are that corruption cases are almost never outcome-determinative; corruption is raised almost three times as much by host States as by investors, and often invoked by host States as a complete defence against all investor claims; investors raise corruption less frequently and have never successfully secured a corruption finding; and that the treatment of corruption issues varies according to who is making the allegation; and this asymmetry has real implications on the outcome of cases.
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Irmgard, Marboe. 5 Methods of Valuation in International Practice. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198749936.003.0005.
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This chapter analyses how the three most important valuation approaches – the market approach, the income approach, and the asset based or cost approach – are reflected in the practice of international investment tribunals. After a short description of the theoretical concept of the respective approaches at the beginning, the corresponding cases are presented and analysed in some detail. The discussion shows that also other approaches are applied in the practice of tribunals, such as mixed methods, insurance value, tax value or contract based valuation. Tribunals sometimes also consider additional types of damages, such as loss of reputation, liability to subcontractors, costs for damage limitation, repair and maintenance, as well as costs for pursuing the claim.
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Jeffery, Commission, and Moloo Rahim. 10 Statements or Submissions on Costs. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0010.
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This chapter considers the duration and costs of investment arbitrations as well as the procedural mechanics of cost submissions or statements of costs. It first examines the timing, format, and content of cost submissions and statements of costs before discussing the relevant arbitral rules that govern such submissions in International Centre for Settlement of Investment Disputes (ICSID) Convention and ICSID Additional-Facility arbitration proceedings, along with the average amount of such costs. It then explains the UNCITRAL Arbitration Rules on costs submissions, taking into account the average amount of those costs, and the duration of arbitration proceedings. It also analyses how arbitral tribunals have allocated costs in ICSID and UNCITRAL proceedings and highlights the factors deemed relevant by tribunals in those decisions.
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Katia, Yannaca-Small. Part IV Guide to Key Substantive Issues, 22 Indirect Expropriation and the Right to Regulate: Has the Line Been Drawn? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0022.
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This chapter focuses on the way in which arbitral tribunals have dealt with indirect expropriation claims based on investment agreements. It also looks at the cross-fertilization with two other sources of jurisprudence which deal with similar issues, under different circumstances and different legal bases, i.e. the US–Iran Claims tribunal and the European Court of Human Rights. The chapter (i) describes the basic concepts of the obligation to compensate for indirect expropriation; (ii) reviews whether and how legal instruments and other texts articulate the difference between indirect expropriation and the right of the governments to regulate without compensation; and (iii) identifies a number of criteria which emerge from jurisprudence and state practice for determining whether an indirect expropriation has occurred, and compensation is due.
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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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Jeffery, Commission, and Moloo Rahim. 3 Provisional Measures. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0003.
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This chapter discusses the provisional measures used to preserve the integrity of an investment arbitration. It first reviews the applicable rules and standards utilized by arbitral tribunals to determine whether to grant a request for provisional measures, including before tribunals applying the International Centre for Settlement of Investment Disputes (ICSID), ICSID Additional Facility, and UNCITRAL rules. In particular, it outlines five criteria that must generally be met to grant a request for provisional measures: prima facie jurisdiction, prima facie establishment of the case, urgency, imminent danger of serious prejudice (necessity), and proportionality. The chapter proceeds by considering case examples of the types of provisional measures requested by parties, namely: security for costs, specific performance, stop parallel domestic proceedings, preservation of documents, preservation of status quo, and non-aggravation of the dispute.
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Frédéric Gilles, Sourgens, Duggal Kabir, and Laird Ian A. Part II Burden and Standard of Proof in International Investment Arbitration, 2 Burden of Proof in Investor-State Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198753506.003.0002.
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This chapter discusses the concept of the burden of proof in investor-state arbitration. The basic rule regarding the burden of proof in international law is that the party who makes an assertion must prove it. The rule has its origins in the traditions of Roman, common, and civil law countries, and is not new or unique to investment arbitration. In fact, this principle has been widely recognized by several international dispute settlement panels, as well as other international agencies. Not every set of arbitration rules explicitly includes this rule, however, although there is near unanimity by tribunals and commentators in its application.
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Norah, Gallagher, and Shan Wenhua. 7 Expropriation and Compensation. Oxford University Press, 2009. http://dx.doi.org/10.1093/law:iic/9780199230259.003.007.
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Expropriation is a core element of the international legal regime relating to foreign investment. The international law relating to expropriation has evolved rapidly within the context of the modern framework for foreign investments, including multilateral treaties, bilateral investment treaties (BITs), and domestic foreign investment laws. This chapter examines the scope and definition of expropriation in the treaties and case law. It reviews how the provisions on expropriation in China's BITs have evolved and considers their scope, and whether they cover indirect or regulatory expropriation which tribunals are more often faced with today. The majority of claims are for indirect or regulatory expropriation and this has prompted states to include provisions in their Model BITs excluding non-discriminatory regulatory actions by a state implemented in the interest of public health, safety, and the environment. The chapter considers the conditions of a lawful expropriation as it is an accepted principle that expropriation is not illegal. Finally, it looks at the level of compensation awarded for an expropriation, one of the more important aspects of this standard of protection.
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Reinisch, August. Introductory Note. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190848194.003.0034.
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In 2015, the jurisprudence of International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc committees largely followed established lines. However, the awards on jurisdiction in the Poštová banka and the Ping An cases evidenced very restrictive approaches to what is required in order to uphold jurisdiction over ICSID claims. On the substance of claims, the tribunals in Tidewater and in Quiborax reaffirmed the legality requirements of expropriations, a string of cases clarified the contours of the fair and equitable treatment standard, while the ad hoc committees in the Daimler and the Kılıç cases continued to diverge on the scope of most-favoured nation (MFN) clauses.
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Franck, Susan D. Arbitration Costs. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190054434.001.0001.
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Investment treaty arbitration (sometimes called ISDS or investor-state dispute settlement) has become a flashpoint in the backlash against globalization, with costs becoming an area of core scrutiny. Yet “conventional wisdom” about costs is not necessarily wise. To separate fact from fiction, this book reality tests claims about investment arbitration and fiscal costs against hard data so that policy reforms can be informed by scientific evidence, rather than intuition or cognitive illusions. The exercise is critical, as investment treaties grant international arbitrators the power to order states—both rich and poor—to pay potentially millions of dollars to foreign investors when states violate the international law commitments made in the treaties. Meanwhile, the cost to access and defend the arbitration can also be in the millions of dollars. This book uses cognitive psychology insights and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties’ counsel and arbitral tribunals. It offers a nuanced analysis of how and when cost-shifting occurs, parses tribunals’ rationalization (or lack thereof) of cost assessments, and models the variables most likely to predict costs, using data to point the way toward evidence-based normative reform. With an intelligent interdisciplinary approach that speaks to ongoing reform at entities such as the World Bank’s ICSID and UNCITRAL, this book provides the most up-to-date study of investment treaty dispute resolution costs, offering new insights that will shape the direction of investment treaty and arbitration reform more broadly.
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Stanimir A, Alexandrov. Part III Guide to Key Jurisdictional Issues, 15 Breach of Treaty Claims and Breach of Contract Claims: When Can an International Tribunal Exercise Jurisdiction? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0015.
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Foreign investors invest in a host state via a contract between the foreign investor and an entity or instrumentality of the host state. Disputes between investors and host states under investment treaties often arise out of breaches of these contracts. In such cases, international tribunals must assess whether the asserted claims rise to the level of a breach of a state’s international obligations. More than a decade ago, the decisions on jurisdiction in SGS v Pakistan and SGS v Philippines brought this issue into the spotlight. These decisions, often perceived as contradictory, deal with the jurisdiction of treaty-based tribunals over claims for a breach of contract. This chapter reviews the seeming confusion regarding the interplay between treaty claims and contract claims and discusses how to dispel any confusion.