Resources and Events
Resources
Legalization, Diplomacy, and Development: Do investment treaties de-politicize investment disputes?
By Geoffrey Gertz, Srividya Jandhyala, and Lauge N. Skovgaard Poulsen, Published by Elsevier in World Development, volume 107, July 2018, pp. 238–252
Architects of the investment treaty regime, as well as many current proponents, have suggested that the treaties also allow developing countries to de-politicize investor–state disputes, shielding commercial disputes from broader political and diplomatic considerations with developed states. The paper subjects this widely accepted and promoted argument to empirical investigation, using a dataset of U.S. diplomatic actions in 219 investment disputes across 73 countries and case studies of U.S. State Department diplomatic cables. The authors find no evidence for the de-politicization hypothesis. Their findings provide a critical corrective to the understanding of the investment treaty regime and its effects on developing countries. Available at https://www.sciencedirect.com/science/article/pii/S0305750X18300688
Contemporary and Emerging Issues on the Law of Damages and Valuation in International Investment Arbitration
By Christina L. Beharry (Ed.), Published by Brill | Nijhoff, April 2018
Given the financial stakes in investment arbitration, compensation is a key concern for both foreign investors and states. The increasingly large sums awarded and the growing complexity of claims call for a renewed analysis of legal and valuation concepts related to damages. This book explores issues dominating a new generation of investment awards and the interconnectedness of damages with other areas of international investment law. Practitioners, experts and academics provide a deeper understanding of legal and valuation principles that are often the source of intense debate in international investment cases. Available at https://brill.com/view/title/35978
Fair and Equitable Treatment: Its interaction with the minimum standard and its customary status
By Patrick Dumberry, Published by Brill | Nijhoff, March 2018
The fair and equitable treatment (FET) standard has become one of the most controversial provisions found in bilateral investment treaties (BITs). This book examines the interaction between the minimum standard of treatment (MST) and the FET standard and the question of why states started referring to the former in their BITs. It also addresses the question of whether FET should be considered as an autonomous standard under BITs. Rebutting the controversial proposition that the FET standard should now be considered as a rule of customary international law, the author shows that states’ practice of including FET clauses in their BITs is not uniform and consistent enough and that states also lack the necessary opinio juris. Available at https://brill.com/abstract/title/37944
Judicial Acts and Investment Treaty Arbitration
By Berk Demirkol, Published by Cambridge University Press, February 2018
Judicial acts of states are becoming increasingly subjected to international investment claims. This book focuses on distinctive particularities of these claims. The author addresses questions in relation to the substance, jurisdiction, admissibility and remedies in cases where state responsibility arises from a wrongful judicial act. Available at http://www.cambridge.org/academic/subjects/law/international-trade-law/judicial-acts-and-investment-treaty-arbitration
Civil Society in Investment Treaty Arbitration: Status and prospects
By Farouk El-Hosseny, Published by Brill | Nijhoff, January 2018
This book provides an overview of the evolution of civil society’s participation as amicus curiae before investment tribunals, an evolution that fits within a broader movement towards transparency in investment treaty arbitration. By looking at the procedural roles available to civil society before other jurisdictions, the author questions whether the amicus role could be expanded. El-Hosseny ultimately shows that the issue of civil society’s participation in investment treaty arbitration transcends the procedural realm: it is equally about arbitral tribunals’ openness vis-à-vis public interest, environmental protection and human rights issues. Available at https://brill.com/abstract/title/35089
Societal Benefits and Costs of International Investment Agreements: A critical review of aspects and available empirical evidence
By Joachim Pohl, Published by the Organisation for Economic Co-operation and Development (OECD), January 2018
This paper reviews alleged societal benefits and costs of international investment agreements (IIAs). It sets out the wide range of issues that diverse actors have proposed in the context of assessing the societal benefits and costs of IIAs. The paper analyzes and organizes the available material generated by these sources to identify and classify the many different issues, summarizes available empirical evidence and findings in these sources on the individual aspects, and assesses strengths and weaknesses of the approaches. It focuses in particular on the investor protection component of IIAs. The inventory finds that, for many claims about the positive or negative impacts of IIAs, little robust evidence has been generated to date. Available at https://www.oecd-ilibrary.org/finance-and-investment/societal-benefits-and-costs-of-international-investment-agreements_e5f85c3d-en
Arbitrating the Conduct of International Investors
By Jose Daniel Amado, Jackson Shaw Kern and Martin Doe Rodriguez, Published by Cambridge University Press, January 2018
Investment arbitration, emerging from modest beginnings and maturing into an established presence in international law, has drifted from the reciprocal vision of its founders. This book serves as a comprehensive guide for those who wish to reform international investment law from within, seeking a return to the mutuality of access that is in arbitration’s essence. A detailed toolset is provided for enhancing the access of host states and their nationals to formal resolution mechanisms in foreign investment disputes. It concludes by offering model texts to achieve greater reciprocity and access to justice in the settlement of disputes arising from international investments. Available at http://www.cambridge.org/academic/subjects/law/arbitration-dispute-resolution-and-mediation/arbitrating-conduct-international-investors
Investment Laws of ASEAN Countries: A comparative review
By Jonathan Bonnitcha, Published by International Institute for Sustainable Development (IISD), January 2018
This report compares the investment laws of the 10 Association of Southeast Asian Nations (ASEAN) member states, focusing on basic questions relating to the function of investment laws in each country. While not every ASEAN country has an investment law, some ASEAN countries have multiple investment laws, each with a different function. These laws form only a small part of the legal and regulatory regime governing investment. It is impossible to evaluate a country’s investment law without considering how it fits into the wider legal and regulatory framework governing investment. Available at https://www.iisd.org/library/investment-laws-asean-countries-comparative-review
Contracts for Sustainable Infrastructure: Ensuring the economic, social and environmental co-benefits of infrastructure investment projects
By Martin Dietrich Brauch, Published by International Institute for Sustainable Development (IISD), December 2017
To achieve the sustainable development goals (SDGs) and the objectives of the Paris Agreement on Climate Change, the infrastructure to be upgraded and built must be sustainable—it must be specifically designed to mitigate economic, social and environmental risks, and to generate economic, social and environmental co-benefits. Public–private partnerships (PPPs) are among the modes that government may adopt to structure infrastructure projects. Bridging IISD’s experience in public procurement and infrastructure finance and investment, this report defines sustainable infrastructure, outlines its expected characteristics and co-benefits, and presents why governments must and how they can integrate sustainability into infrastructure contracts. Available at https://www.iisd.org/library/contracts-sustainable-infrastructure-ensuring-economic-social-and-environmental-co-benefits
ISDS in numbers: Impacts of investment arbitration against Latin America and the Caribbean
By Cecilia Olivet, Bettina Müller and Luciana Ghiotto, Published by Transnational Institute (TNI), December 2017
Latin American and Caribbean (LAC) countries are among the most affected by the investment arbitration system worldwide, representing 28.6 per cent of all known investor–state disputes around the world. In particular, Argentina, Venezuela, Mexico, Ecuador, Bolivia and Peru account for 77.3 per cent of the total number of claims against LAC countries. Investors have won in 70 per cent of the cases brought against LAC countries. As a result, LAC states have already had to pay foreign companies US$ 20.6 billion, which could cover Bolivia’s budget for health and education for four whole years. Available at https://www.tni.org/en/publication/isds-in-numbers
International Investment Treaties and Arbitration Across Asia
By Julien Chaisse and Luke Nottage (Eds.), Published by Brill | Nijhoff, December 2017
The book examines whether and how the Asian region has or may become a significant rule maker in international investment law and dispute resolution. The editors introduce foreign direct investment (FDI) trends and regulations, investment treaties and arbitration across Asia. The authors present country studies for the 10 member states of the Association of Southeast Asian Nations (ASEAN) as well as an overview of ASEAN treaties. Two early chapters present econometric studies of treaty impacts on FDI flows, while two concluding chapters offer other normative and forward-looking perspectives. Available at https://brill.com/view/title/36129
Events 2018
May 2
FORUM: INVESTOR STATE DISPUTE SETTLEMENT (ISDS) AND THE DEVELOPMENT OF INVESTOR STATE (IS) MEDIATION, organized by the International Centre for Settlement of Investment Disputes (ICSID) and others, at ADGM Authorities Building, Abu Dhabi, United Arab Emirates, https://icsid.worldbank.org/en/Documents/ISDS%20and%20the%20Development%20of%20IS%20Mediation%20-%20Invitation%20and%20Programme%20-%202%20May%202018.pdf
May 3–4
1ST ITA–ALARB JOINT CONFERENCE ON INTERNATIONAL ARBITRATION: ARBITRATING DISPUTES IN NATURAL RESOURCES, organized by Institute for Transnational Arbitration (ITA) and Latin American Arbitration Association (ALARB), at Ritz-Carlton Hotel, in Santiago, Chile, https://icsid.worldbank.org/en/Documents/1st%20ITA-ALARB%20Joint%20Conference%20Brochure%20english.pdf
May 7–10
INVESTOR–STATE MEDIATOR TRAINING, organized by International Centre for Settlement of Investment Disputes (ICSID), at World Bank Conference Centre, in Paris, France, https://icsid.worldbank.org/en/Pages/Events.aspx?CID=172
May 11
THIRTIETH ITF PUBLIC CONFERENCE: ENFORCEMENT IN INTERNATIONAL INVESTMENT LAW, organized by Investment Treaty Forum (ITF), at British Academy, in London, United Kingdom, https://www.biicl.org/event/1299
CONFERENCE: KEY ISSUES IN INTERNATIONAL ARBITRATION: ADVOCACY, DAMAGE CALCULATION, SETTLEMENT AND CYBERSECURITY, organized by International Centre for Settlement of Investment Disputes (ICSID), Arbitration Institute of the Stockholm Chamber of Commerce (SCC), Energy Charter Secretariat (ECS) and Permanent Court of Arbitration (PCA), at World Bank Conference Centre, in Paris, France, https://icsid.worldbank.org/en/Documents/ECTConferenceProgramMay2018.pdf
May 10–11
2018 INVESTMENT ARBITRATION & TRANS-PACIFIC TRANSACTIONS CONFERENCE, organized by the American Bar Association (ABA) Section of International Law, at Maxwell Chambers, in Singapore, https://shop.americanbar.org/PersonifyImages/ProductFiles/296454598/Preliminary%20Brochure%20Singapore.pdf
CONFERENCE: INTERNATIONAL INVESTMENT LAW AND NON-COMMUNICABLE DISEASES PREVENTION, organized by Law & NCD Unit, School of Law and Social Justice, University of Liverpool, at University of Liverpool London Campus, in London, United Kingdom, https://www.liverpool.ac.uk/law-and-social-justice/events/international-investment-law-and-ncd-prevention
May 26
9TH INVESTMENT ARBITRATION FORUM: VALUATION OF DAMAGES IN CHANGING ECONOMIC AND POLITICAL CIRCUMSTANCES: LESSONS LEARNT IN LATIN AMERICA – RELEVANT FOR INVESTMENT ARBITRATION IN EUROPE?, organized by International Chamber of Commerce (ICC) Austria, at Vienna University, in Vienna, Austria, https://www.icc-austria.org/fxdata/iccws/download/seminar/Ninth-Investment-Arbitration-Forum-invitation-brochure–(1).pdf
June 1
CONFERENCE: THE FUTURE OF INVESTMENT ARBITRATION IN EUROPE, organized by Association for International Arbitration (AIA), at Conference Hall of Press Club Brussels Europe, in Brussels, Belgium, http://arbitration-adr.org/documents/?i=470
June 4–15
EXECUTIVE TRAINING ON EXTRACTIVE INDUSTRIES AND SUSTAINABLE DEVELOPMENT, organized by Columbia Center on Sustainable Investment (CCSI), at Columbia University, in New York, United States, http://ccsi.columbia.edu/2018/06/04/executive-training-program-on-extractive-industries-and-sustainable-development-3
June 19–29
EXECUTIVE TRAINING ON SUSTAINABLE INVESTMENTS IN AGRICULTURE, organized by Columbia Center on Sustainable Investment (CCSI), at Columbia University, in New York, United States, http://ccsi.columbia.edu/2018/06/19/executive-training-program-on-sustainable-investments-in-agriculture-3