Claims by a Spanish investor declared inadmissible in a case against Costa Rica
Supervisión y Control S.A. v. Republic of Costa Rica, ICSID Case No. ARB/12/4
BITs
Resubmission tribunal puts an end to a 20-year dispute before ICSID
Victor Pey Casado and Foundation Presidente Allende v. The Republic of Chile, ICSID Case No. ARB/98/2
Awards and Decisions
ICSID tribunal dismisses claims brought against Indonesia based on forged mining licences Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and ICSID […]
ICSID tribunal dismisses claims brought against Indonesia based on forged mining licences
Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and ICSID Case No. ARB/12/40 After rendering separate decisions on jurisdiction—one for the case brought […]
PCA tribunal dismisses expropriation and FET claims concerning an eco-touristic venture
Peter A. Allard v. The Government of Barbados, PCA Case No. 2012-06 On June 27, 2016, a tribunal under the auspices of the Permanent Court of Arbitration (PCA) dismissed all […]
India’s Joint Interpretive Statement for BITs: An Attempt to Slay the Ghosts of the Past
The Government of India has proposed a Joint Interpretative Statement to its bilateral investment treaty (BIT) partners. The statement clarifies key substantive and procedural provisions, bringing them more in line with India’s new foreign investment policy.
Special and Differential Treatment in International Investment Agreements
Special and Differential Treatment (S&D), originally forged in the trade regime, has evolved in trade negotiations and gained momentum in investment agreements, to provide greater flexibility for developing countries based on their needs and capabilities.
News in Brief
Trump election affects mega-regional negotiations including TTIP, TPP and RCEP
Brazil and India initial Bilateral Investment Treaty (BIT); text yet to be published
CETA signed; Canada and European Union to “work expeditiously” on creating a Multilateral Investment Court
Awards and Decisions
Venezuela to Pay Us$1 Billion For Expropriating Canadian Mining Company’s Investment
ICSID Tribunal dismisses MFN Clause in WTO GATS as a means of importing Senegal’s consent to arbitration from third party BIT
PCA tribunal deemed acts of Polish Agricultural Property Agency not attributable to Poland
Claimant not considered Investor due to interpretation of “Seat” under Cyprus–Montenegro BIT
Ecuador’s Levy on extraordinary oil profits at a 99% rate has breached Murphy’s legitimate expectations, decides PCA tribunal
Ecuador ordered by PCA tribunal to pay $24 million to Canadian Mining Company
Claimant not considered investor due to interpretation of “seat” under Cyprus–Montenegro BIT
CEAC Holdings Limited v Montenegro, ICSID Case No. ARB(AF)/14/8 – Maria Florencia Sarmiento
Ecuador’s levy on extraordinary oil profits at a 99% rate has breached Murphy’s legitimate expectations, decides PCA tribunal
Murphy Exploration & Production Company – International v. Republic of Ecuador, PCA Case No. 2012-16 (formerly AA 434) – Inaê Siqueira de Oliveira
Can EU Member States Still Negotiate BITs with Third Countries?
Foreign direct investment became part of the sphere of exclusive competence of the European Union in 2009. Since then, the European Commission has been negotiating investment treaties with a number of countries—as well as authorized several individual EU member states to negotiate BITs.
Recasting Rules and Exceptions? On the Relationship Between Regulatory Sovereignty and International Investment Law
States’ regulatory powers are the rule, and investors’ rights under international investment law are the exception. Or is it the other way around? Book review of Public Purpose in International Law.
Brexit and contentious topics complicate TTIP negotiations; public opposition continues
The 14th round of Transatlantic Trade and Investment Partnership (TTIP) negotiations was held in Brussels from July 11 to 15, 2016.
EU negotiation agenda to continue despite Brexit; MERCOSUR and Indonesia at sight
Despite the uncertainties in TTIP negotiations, EU Trade Commissioner Cecilia Malmström said they would survive Brexit, and is pushing to conclude negotiations before U.S. President Barack Obama leaves office in early 2017.
United Kingdom makes trade and investment negotiation moves for post-Brexit era
On July 8, 2016, Sajid Javid, former Business Secretary for the United Kingdom, launched preliminary talks with India on a future trade relationship between the two countries as soon as Britain formally leaves the European Union.
CETA to be concluded as a mixed agreement; Commission hopes for signing in October
On July 5, 2016, the European Commission proposed to the Council that the Canada–European Union CETA—agreed to in 2014 and re-concluded in February 2016—be signed as a “mixed agreement,” requiring signature and ratification by each of the EU member states.
RCEP partners conclude 13th negotiating round in Auckland; three further rounds in 2016
The 13th round of negotiations for a Regional Comprehensive Economic Partnership (RCEP) was held in Auckland, New Zealand, from June 12 to 18, 2016. The International Centre for Trade and Sustainable […]
India takes steps to reform its investment policy framework after approving new model BIT
India has started to send official notices to terminate bilateral investment treaties (BITs) to 57 partner countries with which it has BITs that have already expired or will expire in the near […]
Awards and Decisions
The long-expected final award has been rendered in the high-profile case initiated by tobacco giant Philip Morris in early 2010 against Uruguay over its tobacco control measures.
Corporate restructuring and abuse of rights: PCA tribunal deems Philip Morris’s claims against Australia’s tobacco plain packaging rules inadmissible
Philip Morris Asia Limited v. The Commonwealth of Australia, PCA Case No. 2012-12
ICSID tribunal upholds Panama’s abuse of process objection; Transglobal to pay arbitration costs and most of Panama’s legal expenses
In the proceeding brought by Transglobal Green Energy, LLC (a U.S.-based company) and Transglobal Green Panama S.A. (a Panama-based company) against Panama under the United States–Panama bilateral investment treaty (BIT), an ICSID tribunal accepted Panama’s abuse of process objection.
Venezuela ordered to pay US$1.202 billion plus interest to Canadian mining company Crystallex for FET breach and expropriation
In a 273-page award dated April 4, 2016, a tribunal at the Additional Facility (AF) of the International Centre for Settlement of Investment Disputes (ICSID) ordered Venezuela to pay US$1.202 billion plus interest to Canadian company Crystallex International Corporation (Crystallex).
Turkey–Turkmenistan BIT: tribunal finds claims admissible but dismisses them on merits
An arbitral tribunal at the International Centre for Settlement of Investment Disputes (ICSID) has issued its award on the claims by a Turkish company against Turkmenistan.
Mappinginvestmenttreaties.com: Uncovering the secrets of the investment treaty universe
Did you know that the United Kingdom’s treaty network is twice as consistent as that of Egypt or Pakistan? Have you noticed that 81 per cent of the TPP’s investment chapter is the same as the investment chapter in the U.S.–Colombia FTA, concluded ten years before, in 2006? Treating investment treaty texts as data can equip policy-makers, practitioners and researchers with a more sophisticated understanding of the universe of international investment agreements.
The Need for a Southern Observatory on Transnational Investment
The Observatory is an intergovernmental initiative to provide information and exchange of knowledge and experiences on investment arbitration. It also aims at creating equal conditions between investors and states so as to promote sustainable investment that respects state sovereignty.
An interview with Lauge Poulsen, author of Bounded Rationality and Economic Diplomacy
The popularity of BITs in large parts of the developing world was due to a failure to appreciate their bite. Why would so many governments sign up to some of the most potent instruments in international economic law without even caring to check what the treaties meant?
China–United States BIT: ISDS to be included; ongoing negotiations on negative lists
Since 2008, China and the United States have undergone 24 negotiation rounds for a bilateral investment treaty (BIT).
Three mining disputes: the first investment disputes against Colombia come to light
On February 19, 2016, Cosigo Resources (Canada) and Tobie Mining and Energy (United States) submitted an arbitration request against Colombia under the Free Trade Agreements (FTAs) concluded by Colombia with the United States and Canada.
Second ICSID claim filed against Uruguay; Philip Morris decision still pending
On March 24, the International Centre for Settlement of Investment Disputes (ICSID) registered (Case No. ARB/16/9) a request for arbitration filed by U.S. telecom company Italba against Uruguay.
ICSID tribunal awards damages for Venezuela’s indirect expropriation of steel industry investment
Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/26
The only known investment treaty arbitration against Equatorial Guinea fails on jurisdictional grounds
A majority tribunal at the Additional Facility (AF) of the International Centre for Settlement of Investment Disputes (ICSID) dismissed the case of Spanish construction company Grupo Francisco Hernando Contreras, S.L. (Contreras Group) against Equatorial Guinea, in an award dated December 4, 2015.
ICSID tribunal orders Zimbabwe to return expropriated farms
In a 318-page award issued July 28, 2015 but only published February 2016, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) ordered Zimbabwe to return farms it seized without compensation in 2005.
State Strategies for the Defence of Domestic Interests in Investor–State Arbitration
Argentina and Ecuador are now well experienced in ISDS and have had some success in defending domestic interests from investor claims. Lessons from these prior experiences could benefit other countries, particularly in the developing world, as they devise their legal defence strategies.
Ecuador’s audit on investment treaties: CAITISA reports leaked
Three reports by CAITISA, Ecuador’s citizen audit commission on bilateral investment treaties (BITs), were leaked by online newspaper Diagonal on January 24, 2016.
Conciliation and Arbitration Law: Times of Change in Investment Protection in Bolivia
Bolivia enacts Law No. 708, or the Conciliation and Arbitration Law (LCyA). LCyA was enacted (i) to preserve the public interest and the free will of the parties, (ii) to provide legal security (predictability) to both the state and the investor (iii) in a framework of equality and equity for both.
First ICSID case brought by Chinese mainland investors dismissed on jurisdictional grounds
Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium, ICSID Case No. ARB/12/29
Tribunal largely adopts independent expert’s damages findings in USD 405 million award to previous owners of an Argentine public utility company
Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17; and AWG Group Ltd. v. The Argentine Republic, UNCITRAL
The Law of Investment Treaties
The book examines the law of international investment treaties, specifically in relation to its origins, structure, content, and effect, as well as their impact on international investors and investments, and the governments that are parties to them.
The Brazilian Agreement on Cooperation and Facilitation of Investments (ACFI): A New Formula for International Investment Agreements?
Since the signing of the first Agreement on Cooperation and Facilitation of Investments (ACFI) by Brazil, in March 2015, English translations of the document and analyses of its innovative aspects have been published. The hidden question is: to what extent do Brazil’s ACFIs innovate in the regulation of foreign investments?
China signs FTAs with South Korea and Australia, conducts new round of BIT negotiation with United States
On June 1, 2015, China and South Korea signed a free trade agreement (FTA), after three years of negotiations. Later, on June 17, China entered into another landmark FTA with Australia, concluding decade-long negotiations.
Government bonds not covered, despite broad definition of “investment” in Slovakia–Greece BIT; tribunal dismisses claims against Greece
Poštová Banka, a.s. and Istrokapital SE v. The Hellenic Republic, ICSID Case No. ARB/13/8
Rethinking Investment-Related Dispute Settlement
Investor–state dispute settlement (ISDS), a concept much unknown to the broader public and even top policy-makers only a year ago, is making headlines, especially as the European Union and the […]
The Brazil–Mozambique and Brazil–Angola Cooperation and Investment Facilitation Agreements (CIFAs): A Descriptive Overview
Brazil and Mozambique signed on March 30, 2015 the first Cooperation and Investment Facilitation Agreement (CIFA) based on Brazil’s new model bilateral investment treaty (BIT). The second was signed on April 1, 2015 between Brazil and Angola. Unlike traditional BITs, which are geared towards investor protection, the CIFAs focus primarily on cooperation and investment facilitation. They promote amicable ways to settle disputes and propose state–state dispute settlement as a backup; notably, they do not include provisions on investor–state arbitration.
Everyone’s Doing It: The Acceptance, Effectiveness and Legality of Performance Requirements
For policymakers charged with investment portfolios, the challenge is not simply about attracting greater flows of foreign direct investment (FDI). At least as important is trying to maximize the domestic […]
The Sixth Annual Forum of Developing Country Investment Negotiators: Understanding and Harnessing the New Models for Investment and Sustainable Development
The Sixth Annual Forum of Developing Country Investment Negotiators was held on October 29-31, 2012, in Port of Spain, Trinidad and Tobago. The forum encourages participants to develop their own critical perspectives on issues which are germane to the negotiation of international investment treaties.
Integrating Sustainable Development into International Investment Agreements: A Commonwealth Guide for Developing Country Negotiators
In November 2012 the Commonwealth Secretariat completed a practical guide, titled “Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Countries,” to help enable developing countries to design international investment agreements that support their development needs.
Peru’s State Coordination and Response System for International Investment Disputes
Just as Peru has joined the global trend of concluding investment protection agreements, the country has also been no stranger to the considerable increase in international investment disputes observed in recent years. To address this growth in international investment arbitration in line with its investment attraction policy, Peru has created a system for efficiently and effectively resolving potential disputes.
Dealing With the Increasing Complexity of Investment-Related Treaties: A Framework and Some Policy Guidelines
Bilateral investment treaties used to be boilerplate: taken out of a drawer before official visits; signed with pomp and circumstance but not much attention to precise wording. Today, the diversity and ramifications of investment-related treaties are staggering.
Investment Treaties and Investor Corruption: An Emerging Defense for Host States?
Bilateral investment treaties are famously asymmetric. They grant investors rights but not obligations, while imposing upon states obligations unaccompanied by rights. Recent cases suggest, however, that BIT tribunals are poised to recognize a defense to state liability that, in effect, imposes upon investors the obligation to avoid involvement in public corruption in the course of making a treaty-protected investment. Despite these suggestive jurisprudential trends, however, the specific contours of the emerging corruption defense are uncertain.