Resources and Events
Resources
Legal Framework of Environmental and Social Impact Assessment in the Mining Sector
By Suzy Nikièma, published by IISD, January 2019
Environmental and social impact assessments (ESIAs), environmental and social management plans (ESMPs), closure and rehabilitation plans, and potential resettlement action plans (RAPs) are essential tools for any process related to the granting of environmental permits or mining authorizations. Unfortunately, these issues are often poorly considered in the initial phases of mining projects or are inappropriately monitored during subsequent operational phases. This is why the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (IGF) is focusing on ESIAs for its fourth Guidance for Governments. The purpose of this background paper is to identify the issues and problems related to the legal framework of ESIAs and related plans in the legal framework of mineral resource-rich countries, as well as their implications for how the mining sector is governed, while exploring avenues for action and reflecting on appropriate solutions. Available in English and French at https://www.iisd.org/library/background-document-legal-framework-environmental-and-social-impact-assessment-mining-sector
Reforming Investment Dispute Settlement: A stocktaking
By UNCTAD, published by UNCTAD, March 2019
ISDS continues to be controversial, spurring debate in the investment and development community and the public at large. States are responding to challenges and concerns surrounding ISDS through different avenues. Taking stock of where reform stands today, this IIA Issues Note traces ISDS-related reform developments in recently concluded IIAs and in policy-making processes from the national to the multilateral level. It lists five principal approaches emerge from IIAs signed in 2018: I. No ISDS, II. Standing ISDS tribunal, III. Limited ISDS, IV. Improved ISDS procedure and V. Unreformed ISDS mechanism. It also highlights the prominence gained by multilateral engagement on ISDS reform, including through UNCITRAL Working Group III discussions on the possible reform of ISDS and processes at ICSID for the amendment of its rules. Available at https://investmentpolicyhub.unctad.org/Publications/Details/1194
Asian Perspectives on International Investment Law
By Junji Nakagawa (Ed.), published by Routledge, March 2019
With changes to the international investment law landscape—and Asian countries now actively developing their network of BITs and FTAs—this volume studies issues relating to Asian perspectives on international investment law and forecasts the future of Asian contributions to its science and practice. It discusses the major factors driving Asian countries to new directions in international investment rule-making and dispute settlement. It also looks at whether Asian countries are crafting a new model of international investment law to reflect their specific sociocultural values. Finally, the book examines whether there are any Asian styles of international investment rule-making and dispute settlement, or if individual Asian countries are seeking specific national models based on economic structure and geopolitical interests. Available at https://www.routledge.com/Asian-Perspectives-on-International-Investment-Law/Nakagawa/p/book/9781138330535
The Return of the Home State to Investor–State Disputes: Bringing back diplomatic protection?
By Rodrigo Polanco, published by Cambridge University Press, February 2019
The book examines the underlying reasons for the exclusion of home states from ISDS and explores the role that they could play in the dispute process. It also analyzes whether current reforms and proposed changes for the international investment law regime will improve it or reduce the exposure of states to investment claims. Further, it provides a historical perspective of the relationship between foreign investors, home states and host states, and examines how changes to this relationship have affected the development of investment law. Available at https://www.cambridge.org/academic/subjects/law/international-trade-law/return-home-state-investor-state-disputes-bringing-back-diplomatic-protection
China’s International Investment Strategy: Bilateral, regional, and global law and policy
By Julien Chaisse (Ed.), published by Oxford University Press, February 2019
In order to accommodate inward and outward investment, China’s participation in the international investment regime has underpinned its efforts to join multilateral investment-related legal instruments and conclude IIAs. This work explores the three distinct tracks of China’s investment policy and strategy: bilateral agreements, including those with the United States and the EU; regional agreements including the FTA of the Asia–Pacific; and global initiatives, spearheaded by China’s presidency of the G20 and its “Belt and Road initiative.” The book’s overarching topic is whether these three tracks compete with each other, or whether they complement one another—a question of profound importance for the country’s political and economic future and world investment governance. Available at https://global.oup.com/academic/product/chinas-international-investment-strategy-9780198827450
Principles of Evidence in Public International Law as Applied by Investor–State Tribunals: Burden and Standards of Proof
By Kabir Duggal and Wendy W. Cai, published by Brill, January 2019
The book explores the fundamental principles of evidence and how these principles relate to burden of proof and standard of proof. By tracing the applications of major principles recognized by the International Court of Justice and applied by investor–state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor–state arbitration and public international law more generally. Available at https://brill.com/view/title/37967
PITAD Investment Law and Arbitration Database: Version 1.0
By Daniel Behn, Malcolm Langford, Ole Kristian Fauchald, Runar Lie, Maxim Usynin, Taylor St John, Laura Letourneau-Tremblay, Tarald Berge and Tori Loven Kirkebø, online database published by Pluricourts Centre of Excellence, University of Oslo, January 2019
Currently in beta version, the database provides a comprehensive, regularly updated and networked overview of all known investment arbitration cases. It offers researchers and policy-makers immediate access to an initial selection of carefully coded variables together with a series of visualizations of raw and analyzed data from more than 1,000 cases. Subsequent versions will provide progressive access to the remaining 100-plus variables in the database together with all treaty and case texts in a format suitable for computational analysis. Available at https://pitad.org
European Yearbook of International Economic Law 2018
By Marc Bungenberg, Markus Krajewski, Christian J. Tams, Jörg Philipp Terhechte, Andreas R. Ziegler (Eds.), published by Springer, 2019
This volume focuses on natural resources law understood as a special area of international economic law. In light of increasing conflicts over access to and use of natural resources—and of their impact on political, social and environmental aspects—contributors to this volume analyze the extent to which international economic law can support the sustainable exploitation, management and distribution of natural resources. The volume offers discussions of general principles of natural resources law, the importance of natural resources for trade, investment and European economic law, and analyses of particular sectors. Further sections address recent case law. The volume also contains review essays of important recent books in international economic law. Available at https://www.springer.com/gp/book/9783319977515
Foreign Investment Under the Comprehensive Economic and Trade Agreement (CETA)
By Makane Moïse Mbengue and Stefanie Schacherer, Stefanie (Eds.), published by Springer, 2019
This book analyzes the investment chapter of a new type of trade agreement between Canada and the European Union to help readers gain a better understanding of this mega-regional deal, which includes foreign investment protection. It first provides background information on CETA, particularly focusing on its chapter on foreign investment, including the rules on the entry of investments, their protection and the stringent dispute settlement mechanism. It goes on to explore whether these provisions are a further step toward reforming the current international investment law regime. It also examines the highly innovative part of the agreement: i.e., the inclusion of crosscutting issues such as sustainable development. In addition, it examines CETA’s investment chapter from the perspective of non-contracting parties, including Africa, Asia and Latin America. Available at https://www.springer.com/gp/book/9783319983608
Key Duties of International Investment Arbitrators: A transnational study of legal and ethical dilemmas
By Katia Fach Gómez, published by Springer, 2019
This book critically analyzes how arbitration cases, institutional rules and emerging codes of conduct in the international arbitration sector have dealt with a series of key arbitrator duties to date. In addition, it offers a range of feasible and well-grounded proposals regarding investment arbitrators’ duties in the future. It examines the duty of disclosure, the duty to investigate. the duty of diligence and integrity, the duty of confidentiality and other duties such as monitoring arbitration costs, or continuous training. Available at https://www.springer.com/gp/book/9783319981277
The Participation of the EU in International Dispute Settlement: Lessons from EU investment agreements
By Luca Pantaleo, published by Springer, 2019
This book looks at the participation of the EU in international dispute settlement. It aims to provide the reader with an appraisal of the most problematic aspects connected with the participation of a sui generis legal subject such as the EU to international dispute settlement mechanisms in a state-centric international law. In particular, the publication dwells on the question of how to make possible the effective participation in disputes while at the same time preserving the autonomy of the EU legal order. It does so by outlining different models and proposing the internalization model adopted under EU investment agreements as a possible paradigm. Available at https://www.springer.com/gp/book/9789462652699
Fact Sheet on Intra-European Union Investor–State Arbitration Cases
By UNCTAD, published by UNCTAD, December 2018
Intra-EU investor–state arbitration has been a prominent topic in domestic and international policy debates. Recent developments related to the Achmea case put a spotlight on the future of intra-EU disputes based on BITs and the Energy Charter Treaty. This IIA Issues Note presents statistics and facts on intra-EU investor–state arbitration cases by the end of July 2018. A review of 49 decided intra-EU cases provides information on the following issues: the affected investment, the types of challenged measures, the alleged rationale and the alleged adverse effects of the challenged measures. An annex contains a mapping of principal issues (jurisdiction, admissibility and merits) discussed by tribunals in these cases. Available at https://investmentpolicyhub.unctad.org/Publications/Details/1193
Establishing Judicial Authority in International Economic Law
Joanna Jemielniak, Laura Nielsen and Henrik Palmer Olsen (Eds.), published by Cambridge University Press, December 2018
A central development in international law is the intensified juridification of international relations by a growing number of international courts. With this in mind, this book discusses how international judicial authority is established and managed in key fields of international economic law: trade law, investor–state arbitration and international commercial arbitration. The analysis explores the interplay between these areas of economic dispute resolution, tracing their parallel developments and identifying the ways they influence each other on processual mechanisms and solutions. It considers issues such as the usage of precedent and the role of legitimacy, suggesting that the consolidation of judicial authority is a universal trend impacting state behaviour. Available at https://www.cambridge.org/academic/subjects/law/international-trade-law/establishing-judicial-authority-international-economic-law
The Use of Economics in International Trade and Investment Disputes
By Theresa Carpenter, Marion Jansen and Joost Pauwelyn (Eds.), published by Cambridge University Press, December 2018
Twenty-first-century trade agreements are increasingly a source of international law on investment and competition. With chapters contributed by leading practitioners and academics, this volume draws upon investor–state arbitration and competition/antitrust disputes to focus on the application of economics to international trade law and specifically WTO law. Available at https://www.cambridge.org/academic/subjects/law/international-trade-law/use-economics-international-trade-and-investment-disputes
Alternative Visions of the International Law on Foreign Investment: Essays in honour of Muthucumaraswamy Sornarajah
C. L. Lim (Ed.), published by Cambridge University Press, December 2018
This book is about the forces that are reshaping the international law on foreign investment today. It begins by explaining the liberal origins of contemporary investment treaties before addressing a current backlash against these treaties and the device of investment arbitration. The book describes a long-standing legal-intellectual resistance to a neo-liberal global economic agenda, and how tribunals have interpreted various treaty standards instead. It introduces our reader to the changes now taking place in the design of a range of familiar treaty clauses, and it describes how some of these changes are now driven not only by developing and emerging economies but also by the capital-exporting nations. Finally, it explores the life, career and writings of Muthucumaraswamy Sornarajah, a scholar whose work has been dedicated to the realization of many of these changes, and his views about the hold global capital has over legal practice. Available at https://www.cambridge.org/academic/subjects/law/international-trade-law/alternative-visions-international-law-foreign-investment-essays-honour-muthucumaraswamy-sornarajah
Taxation of Bilateral Investments: Tax treaties after BEPS
By Carlo Garbarino, published by Edward Elgar, 2018
The OECD’s guidance on combatting tax avoidance strategies associated with Base Erosion and Profit Sharing (BEPS) methods is complex and accompanied by a wealth of literature. This book provides a concise and accessible overview of counter BEPS measures in the OECD Model and Commentary, allowing readers to gain a practical understanding of how the measures can impact the taxation of bilateral investments protected by tax treaties. Available at https://www.e-elgar.com/shop/taxation-of-bilateral-investments
Research Handbook on Environment and Investment Law
By Kate Miles (Ed.), published by Edward Elgar, 2019
This book examines one of the most dynamic areas of international law: the interaction between international investment law and environmental law and policy. It takes a thematic approach, analyzing key issues in the environment–investment nexus, such as freshwater resources, climate, biodiversity, biotechnology and sustainable development. It also includes sections exploring regional experiences and address practice and procedure, and offers innovative approaches and critical perspectives, including the interface between foreign investment and the environment with human rights, gender, Indigenous Peoples and economics. Available at https://www.e-elgar.com/shop/research-handbook-on-environment-and-investment-law
Research Handbook on Human Rights and Investment
By Yannick Radi (Ed.), published by Edward Elgar, 2018
The interplay between human rights and investments is a key and complex issue in today’s world. To take stock of its importance and to tackle its complexity, this book gathers in-depth contributions focusing on the interface between human rights and investments in various international legal regimes, economic sectors and regions. It also provides thorough analyses of the various types of accountability that may result from the activities of multinational corporations in relation to human rights. Available at https://www.e-elgar.com/shop/research-handbook-on-human-rights-and-investment
Commentary on the Energy Charter Treaty
Rafael Leal-Arcas (Ed.), published by Edward Elgar, 2018
The Commentary on the Energy Charter Treaty (ECT) provides an article-by-article textual analysis of the international agreement, which outlines a multilateral framework for cross-border cooperation in the energy sector. Contributors provide commentary and analysis on the five primary areas of the ECT: investment promotion and protection, trade, transit, environmental protection and dispute settlement. The optional protocols are also addressed, including issues such as energy efficiency and the environment. Available at https://www.e-elgar.com/shop/commentary-on-the-energy-charter-treaty
Events 2019
April 23–26
2019 FORUM ON RESPONSIBLE MINERAL SUPPLY CHAINS, Organisation for Economic Co-operation and Development (OECD), at the OECD Conference Centre, Paris, France, http://www.oecd.org/daf/inv/forum-responsible-mineral-supply-chains.htm
May 16
10TH ANNIVERSARY CONFERENCE OF THE INTERNATIONAL INVESTMENT LAW CENTRE COLOGNE (IILCC): “Evolution, Evaluation and Future Developments in International Investment Law,” at the Cologne Chamber of Commerce and Industry (IHK), in Cologne, Germany, http://www.iilcc.com
SEMINAR “A LOW-CARBON SOCIETY THROUGH INTERNATIONAL LAW,” Arbitration Institute of the SCC & Haga Initiative, at the SCC, in Stockholm, Sweden, https://sccinstitute.com/about-the-scc/event-calendar/save-the-date-a-low-carbon-society-through-international-law
May 21
ARBITRATION COSTS: MYTHS AND REALITIES IN INVESTMENT TREATY ARBITRATION, ICSID and American University Washington College of Law (AUWCL), at ICSID, in Washington, D.C., United States, https://icsid.worldbank.org/en/Documents/flyer_arbitration_costs.pdf
May 22
WEBINAR “SUSTAINABLE INVESTMENT IN AGRICULTURE,” International Bar Association (IBA) Agricultural Law Section, https://www.ibanet.org/Conferences/webinar-may22.aspx
June 3–14
EXECUTIVE TRAINING ON EXTRACTIVE INDUSTRIES AND SUSTAINABLE DEVELOPMENT, Columbia Center on Sustainable Investment (CCSI), at Columbia University, in New York, United States, http://ccsi.columbia.edu/2019/06/03/executive-training-on-extractive-industries-and-sustainable-development
June 11–21
EXECUTIVE TRAINING ON SUSTAINABLE INVESTMENTS IN AGRICULTURE, Columbia Center on Sustainable Investment (CCSI), at Columbia University, in New York, United States, http://ccsi.columbia.edu/2019/06/11/executive-training-on-sustainable-investments-in-agriculture
June 13–14
8TH DIS BALTIC ARBITRATION CONFERENCE 2019, in Riga, Latvia, http://www.balticarbitration.com/en
June 17–27
EXECUTIVE TRAINING ON INVESTMENT TREATIES AND ARBITRATION FOR GOVERNMENT OFFICIALS, Columbia Center on Sustainable Investment (CCSI), at Columbia University, in New York, United States, http://ccsi.columbia.edu/2019/06/17/executive-training-on-investment-treaties-and-arbitration-for-government-officials-2
September 26–27
COLLOQUIUM “ACTORS IN INTERNATIONAL INVESTMENT LAW: BEYOND CLAIMANTS, RESPONDENTS AND ARBITRATORS,” at University Paris II Panthéon-Assas, in Paris, France, https://www.transnational-dispute-management.com/news/20190926.pdf
October 25–26
WORLD TRADE FORUM, “INTERNATIONAL ECONOMIC DISPUTE SETTLEMENT: DEMISE OR TRANSFORMATION?” at World Trade Institute (WTI) of the University of Bern, and the European University Institute (EU), Bern, Switzerland, https://www.wti.org/media/filer_public/b1/2e/b12e1c5d-8def-40ad-92bf-6c77cd3ffcfb/call_for_papers_wtf_2019.pdf