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Books on the topic 'Investor-state legal disputes'
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1
Makane Moïse, Mbengue, and Sagar Samarth. Part II Investor-State Arbitration in the Energy Sector, 15 Energy Investor-State Disputes in Africa. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198805786.003.0015.
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This chapter analyzes some of Africa's regulation in the energy sector, including national legislation in Kenya and Mozambique. The energy sector is particularly important on the African continent, which is replete with traditional energy resources such as oil, gas, and coal — and has recently been seeing a growing emphasis on renewable sources of energy. Historically, the African energy sector has been dominated by the petroleum industry, and to a large extent this is still true today. The chapter looks at the legal instruments relating to investors' rights in Africa and dispute resolution mechanisms therein, distinguishing treaties, municipal legislation, and contracts. The chapter concludes that a major trend of resource nationalism exists on the African continent.
2
Borzu, Sabahi. Compensation and Restitution in Investor-State Arbitration. Oxford University Press, 2011. http://dx.doi.org/10.1093/acprof:oso/9780199601189.001.0001.
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This book presents a detailed study on compensation and restitution in investor state arbitration pursuant to investment treaties. The study begins by examining the historical roots of the principles of reparation, restitution, and compensation in international law as reflected in the landmark Chorzów Factory case. The roots of these principles are traced to Roman law and private law concepts that entered into the European continent's legal systems. Moving to modern times, the study focuses on the principle of reparation set out in the Chorzów Factory case and its requirement that reparation put the aggrieved party in the ‘hypothetical position’ that would have existed if not for the wrongful act. Restitution, both material and judicial, is discussed as a form of reparation. Compensation, by far the more common form of reparation in modern international investment disputes, is discussed in detail. In dealing with compensation for expropriation, this book examines the recent trends in which lawful and unlawful expropriation cases are distinguished and the impact that this distinction can have on the amount of compensation. This book additionally outlines some of the main valuation and accounting methods used in setting the hypothetical position to measure compensation due. Various forms of supplemental compensation, such as moral damages, interest, or arbitration costs, may also be necessary to fully restore the hypothetical position; these are discussed along with applicable limitations. This study also sets out important principles that may limit compensation generally, such as causation and the prohibition on double counting.
3
Foster, Caroline E. Global Regulatory Standards in Environmental and Health Disputes. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198810551.001.0001.
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Potentially global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and inferring a revised conception of sovereignty in an increasingly pluralistic global legal era. However, considered with regard to jurisprudential theory on relative authority, the legitimacy of the resulting ‘standards-enriched’ international law remains open to question. Procedurally, although they are well-placed to provide valuable input, international courts and tribunals should not be the only fora in which these standards are elaborated. Substantively, challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law’s legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.
4
Maxi, Scherer, ed. International Arbitration in the Energy Sector. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198805786.001.0001.
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Disputes in the energy and natural resources sector are at the heart of international arbitration. With more arbitrations arising in the international energy sector than in any other sector, it is not surprising that the highest valued awards in the history of arbitration come from energy-related arbitrations. Energy disputes often involve complex and controversial issues relating to security, sovereignty, and public welfare. This book puts international energy disputes into a global context, providing broad coverage of different forms and systems of dispute resolution across both renewable and non-renewable sectors. The twenty chapters in the book enable readers to compare the approaches to, and learnings from, energy arbitrations across various legal systems and geographic regions. After outlining the international energy arbitration legal framework in Chapter 1, the book delves into a detailed analysis of the problems which regularly arise in practice. These include, among other things, commercial disputes, investor-state disputes, and public international law disputes. Alongside recent developments in the international energy sector, attention is given to climate and sustainable development disputes, which raise important questions about enforcing sustainability objectives on individuals, corporations, and states. Backed by analyses of arbitral awards, national court and international tribunal decisions, treaties, and other international legal instruments, as well as current events and news in the energy industry, the book offers a unique contribution to international energy literature and provides insightful commentary on the prevalent issues in the field.
5
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.
6
Gebert, Alexander. Legal Protection for Small and Medium-Sized Enterprises through Investor-State Dispute Settlement. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198795650.003.0012.
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The chapter illustrates the participation of small and medium-sized enterprises (SMEs) in the investor-state dispute settlement (ISDS) system, as well as obstacles from pursuing claims under investment treaties with corresponding solutions. SMEs are increasingly investing in foreign countries, and may be subject to state measures violating international law standards afforded under investment treaties. Investment treaties regularly also provide for ISDS as a means to enforce these standards by allowing foreign investors to commence arbitration proceedings against a state in a neutral forum. The chapter reveals that despite the perception as a dispute settlement mechanism accessible exclusively for large multinational corporations, in fact a substantial part of claimants in ISDS proceedings are SMEs. While it is true that high costs and the long duration of ISDS proceedings may be obstacles for SMEs, the flexibility of arbitration proceedings and the availability of external funding provide for opportunities to control time and costs.
7
Frédéric Gilles, Sourgens, Duggal Kabir, and Laird Ian A. Part III Presumptions and Inferences, 6 Evidentiary Presumptions. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198753506.003.0006.
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This chapter considers presumptions, which serve as an efficiency or prudential function in court proceedings. Tribunals can make findings of fact by reference to presumptions. The use of presumptions means that the tribunal makes a determination of fact that is not premised upon direct evidence or project-specific circumstantial evidence. The tribunal instead is convinced of the truth of a fact premised upon the proof of relevant general surrounding circumstances. The use of presumptions is ubiquitous in investor-state arbitrations, as it is in other domestic and international disputes, because the predicate of a legal claim typically is the asserted deviation by one or both the parties of relevant general practices or expected background circumstances by the other.
8
Kendra, Magraw. Notable Developments in International Investment Arbitration Case Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0003.
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The years 2015 and 2016 saw dynamic and significant developments in international investment law and arbitration. This chapter discusses some notable decisions and developments in the case law that occurred during this period. It focuses on decisions that: are novel; address topical issues; may impact subsequent case law as a result of, amongst others, the interpretation of multilateral treaties or the development of legal doctrines; were particularly high-profile or garnered significant public attention; and/or may shape the development of the investor–state arbitration regime. The chapter is divided into six parts: security for costs; disclosure of third-party funding; strategic investment structuring to benefit from investment treaty protection; the first decisions issued in the Energy Charter Treaty (ECT) disputes against Spain; host states' right to regulate; and the enforcement and set-aside of arbitral awards.
9
Perrone, Nicolás M. Investment Treaties and the Legal Imagination. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198862147.001.0001.
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Foreign investors have a privileged position under investment treaties. They enjoy strong rights, have no obligations, and can rely on a highly efficient enforcement mechanism: investor–state dispute settlement (ISDS). This extraordinary status has made international investment law one of the most controversial areas of the global economic order. Unsurprisingly, its origin and evolution have been the subject of a long debate. This book adds to the discussion by showing that foreign investor rights are not the result of unpredicted arbitral interpretations, but rather the likely outcome of a world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s. Some initiatives that these norm entrepreneurs planned for did not concretize, such as a multilateral investment convention, but they were successful in developing a legal imagination that gradually occupied the space of international investment law. They sought not only to set up a dispute settlement mechanism but also to create a platform to ground their vision of foreign investment relations. Tracing their normative project from the post-World War II period, this book shows that the legal imagination of the norm entrepreneurs is remarkably similar to present ISDS practice. Common to both is what they protect—such as foreign investors’ legitimate expectations—as well as what they silence or make invisible. Our canon of imagination, of adjustment and potential reform, remains closely associated with the world-making project of the norm entrepreneurs of the 1950s and 1960s.
10
Frédéric Gilles, Sourgens, Duggal Kabir, and Laird Ian A. Part IV Proving Your Case, 10 Witnesses and Experts. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198753506.003.0010.
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This chapter gives the first full-length treatment of the law and principles of evidence applicable to witness and expert testimony. One of the most underdeveloped areas in the literature concerns witnesses and experts. Witnesses and experts are crucial parts of any investor-state arbitration. In fact, most if not all investor-state arbitrations rely upon the testimony of witnesses and experts in order to prove central factual and legal issues in dispute between the parties. Hence, the chapter covers direct as well as cross-examination and aims to provide a better understanding to parties in framing witness statements as well as to counsel and tribunals in managing cross-examination at a hearing.
11
Noah, Rubins, Nektarios Papanastasiou Thomas, and Kinsella N Stephan. International Investment, Political Risk, and Dispute Resolution. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198808053.001.0001.
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This second edition explores the multi-layered legal framework for the protection of foreign investment against political risk. The chapters analyze some of the key issues surrounding this subject, such as structuring transactions to minimize political risk, political risk insurance, State responsibility, treaties protecting foreign investmentand international arbitration between States and investors. Since the previous edition, far more attention has been paid to some of these issues, in particular investor–State arbitration.All chapters have been revised to take into account the number of new arbitration awards that have come to light and the massive volume of commentary on the subject of international investment arbitration since the first edition. The authors have carefully considered the latest theoretical approaches to foreign investment protection and the most intellectually challenging awards issued in the intervening decade, as well as the most recent practical guidance on the procedural recourse available to investors who face political risks. The book is written to appeal to lawyers and non-lawyers alike. It is suitable as a primer for non-specialist practitioners seeking to familiarize themselves with international law pertaining to political risk. It is also suitable for students who intend to specialize in international investment law.
12
Grant, Hanessian. Part V Emergency Arbitrators and Interim Relief, 15 Legal Standards Applicable to Deciding Applications for Interim Relief. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0016.
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Parties in a dispute sometimes need to obtain relief prior to the final disposition of the case. Such relief-in international arbitration variously termed ‘interim measures of protection’, ‘conservatory measures’, or ‘provisional’, ‘preliminary’, or ‘temporary’ relief-may be necessary to preserve the status quo, to facilitate conduct of arbitral proceedings, or to ensure enforcement of a future award. In recent years, interim relief has received more attention and it has become increasingly possible to identify international standards relevant to applications for interim relief. This chapter considers these emerging standards, with particular emphasis on contributions made by the decisions of investor-state tribunals and emergency arbitrators.
13
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.
14
Mark A, Clodfelter, and Tsutieva Diana. Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0017.
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The last decade has seen an increase in the efforts of respondent States to have their own claims against investor-claimants heard in investor-State proceedings commenced against them. The investment arbitration case law has revealed a host of legal and practical difficulties in admitting counterclaims. Most of these stem from the core requirement that parties must consent to submit their differences to investment arbitration. The applicable arbitration rules have also been cited as a bar to counterclaims. This chapter explores the functionality of applicable procedural rules as bases for an investment tribunal’s authority to hear counterclaims under the two main investment law regimes: the International Centre for Settlement of Investment Dispute (ICSID) Convention and Arbitration Rules and the United Nations Commission on International Trade Law Arbitration Rules. A review of the milestone cases under these two regimes reveals the major problems that have arisen.
15
Ely Caetano, Xavier Jr, and Costa José Augusto Fontoura. Expropriation in Brazil’s Cooperation and Facilitation Investment Agreements. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0013.
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The recent Cooperation and Facilitation Investment agreements signed by Brazil display some innovative features, such as the exclusion of investor-state dispute settlement and the inclusion of corporate social responsibility issues. However, the expropriation provisions have not been improved to the same extent. The lack of precise definitions for expropriation, the omission of any reference to indirect expropriation, and the recurring reference to national legal systems represent some of the main problems. The strategy of revising the provision for expropriation as the agreements were negotiated and signed has resulted in a questionable decision to intentionally exclude indirect expropriation from the scope of the agreements and has created inconsistencies among the different texts. The success of the agreements is still unknown, but sidestepping expropriation is not a good beginning.
16
Gus Van, Harten, and Scott Dayna Nadine. Investment Treaties and the Internal Vetting of Regulatory Proposals. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0012.
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This chapter discusses three findings of a study on whether investor–state dispute settlement (ISDS) has contributed to changes in government decision-making about environmental protection in Ontario, Canada. These findings are: (1) ISDS puts pressure on government decision-making due to the financial and political risks, the opportunity costs that ISDS creates for government, and as a consequence of the career risks that it creates for individual officials; (2) ISDS pressures may be overcome, especially where there is a strong political commitment to a proposed measure backed by legal capacity to scrutinize purported ISDS risks critically and throughout the policymaking process; (3) the assessment of trade or ISDS risks involves value choices and ISDS-generated changes to decision-making processes elevate the role of ‘trade values’ over competing values associated with health and environmental protection.
17
Schill, Stephan W., and Vladislav Djanic. International Investment Law and Community Interests. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198825210.003.0013.
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In contemporary discourse, international investment law and investor-state dispute settlement (ISDS) are often perceived as threats to community interests in one-sidedly protecting foreign investors and undermining public policies that are to the benefit of the local population and the international community. The chapter promotes a different perspective. First, it argues that international investment law properly construed can be conceptualized as protecting community interests, because it is part of the legal infrastructure necessary for the functioning of the global economy under a rule of law framework. Aimed at supporting economic growth, this helps further economic and noneconomic community interests, including sustainable development. Second, the chapter argues that international investment law and ISDS do not turn a blind eye to the conflicts that can arise between economic and noneconomic community interests, such as environmental protection or human rights. Instead, international investment law and ISDS have numerous mechanisms at their disposal for alleviating tensions with noneconomic community interests.
18
Hobe, Stephan, and Julian Scheu, eds. Evolution, Evaluation and Future Developments in International Investment Law. Nomos Verlagsgesellschaft mbH & Co. KG, 2021. http://dx.doi.org/10.5771/9783748923756.
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The law on the protection of foreign investments is situated at the crossroads of international law and diplomacy in the context of a globalized economy. It is therefore not surprising that investment law has undergone fundamental changes in the last decade. The exponential growth of arbitration cases has illustrated a number of complex legal and political issues that have called into question the efficiency and legitimacy of investor State dispute settlement (ISDS). Thus, even for experts in the field it is challenging to keep track with the rapid and fundamental changes of what is often described as one of the most dynamic fields of international law. Against this background, the present volume provides an ‘Evolution, Evaluation, and Future Developments in International Investment Law’. World leading academics and practitioners shed light on the most important developments such as the evolution of investment law and its relationship to general international law, the practical importance of State contracts, the role of investment protection in the age of climate change, and current reform projects under the auspices of ICSID and UNCITRAL. The volume is based on six keynote speeches held at the 10 Year Anniversary Conference of the International Investment Law Centre Cologne.
19
Van Harten, Gus. The Trouble with Foreign Investor Protection. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198866213.001.0001.
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Governments are rightly discussing reform of investment treaties, and of the powerful system of ‘investor–state dispute settlement’ (ISDS) upon which they rest. It is therefore important to be clear about the crux of the problem. ISDS treaties are flawed fundamentally because they firmly institute wealth-based inequality under international law. That is, they use cross-border ownership of assets, mostly by multinationals and billionaires, as the gateway to extraordinary protections, while denying equivalent safeguards to those who lack the wealth required to qualify as foreign investors. The treaties thus have the main effect of safeguarding an awe-inspiring set of rights and privileges for the ultra-wealthy at the expense of countries and their populations. This book shows how ISDS came to explode in a global context of extreme concentration of wealth and of widespread poverty. The history of early ISDS treaties is highlighted to show their ties to decolonization and, sometimes, extreme violence and authoritarianism. Focusing on early ISDS lawsuits and rulings reveals how a small group of lawyers and arbitrators worked to create the legal foundations for massive growth of ISDS since 2000. ISDS-based protections are examined in detail to demonstrate how they give exceptional advantages to the wealthy. Examples are offered of how the protections have been used to reconfigure state decision making and shift sovereign minds in favour of foreign investors. Finally, the ongoing efforts of governments to reform ISDS are surveyed, with a call to go further or, even better, to withdraw from the treaties.