The Czech Republic fends off another claim in relation to their renewable energy scheme
ANTARIS SOLAR GMBH AND DR. MICHAEL GÖDE V. CZECH REPUBLIC, PCA CASE NO. 2014-01
ISDS
The 2018 Draft Dutch Model BIT: A critical assessment
In May 2018, the Dutch Ministry of Foreign Affairs published its new draft model bilateral investment treaty (BIT), in hopes to foster rethinking of existing and future Dutch BITs. Will this revised model achieve this goal, or does it fall short of the promised policy reset?
The Case Against Third-Party Funding in Investment Arbitration
Third-party litigation funding (TPF) is a rapidly expanding industry composed of speculative investors who invest in a legal claim for control of the case and a contingency in the recovery. In the wake of the global financial crisis and the demand by speculative finance for new investment vehicles, TPF has discovered the regime of bilateral investment treaties (BITs) with investor–state dispute settlement (ISDS) mechanisms.
Update on EU trade and investment negotiations: Japan, Vietnam, Australia, New Zealand, Mexico
On July 17, 2018, EC President Jean-Claude Juncker and Japanese Prime Minister Shinzo Abe signed the Japan–European Union (EU) Economic Partnership Agreement (JEEPA).
UNCITRAL Working Group III continues debate on ISDS concerns and multilateral reform
Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) continued discussions on possible reform of investor–state dispute settlement (ISDS) at its 35th session, held April 23–27, 2018 in New York.
The Rise of Investor–State Arbitration: Politics, law, and unintended consequences
Why did governments create a special legal regime in which foreign investors can bring cases directly against states?
IIA Issues Note: Recent Developments in the International Investment Regime
The note highlights that the number of new IIAs concluded in 2017 was the lowest since 1983, and that, for the first time, the number of effective treaty terminations outpaced the number of new IIAs.
Withdrawal of Consent to Investor–State Arbitration and Termination of Investment Treaties
It will take time for dialogues on ISDS reform to produce results. In the interim, rather than continue to assume the unjustified risks associated with the flawed ISDS system, states could consider two near-term options. This piece looks at the advantages and disadvantages of each.
An Interview with Luis Guillermo Vélez – Director-General of Colombia’s National Agency for the Legal Defense of the State
On the heels of our 11th Annual Forum of Developing Country Investment Negotiators, we interviewed Luis Guillermo Vélez, Director-General of Colombia’s National Agency for the Legal Defense of the State (ANDJE), to capture his experiences on investment negotiations and disputes, his expectations for investment reform processes and views on the value of the Forum.
UNCITRAL Working Group III meets in New York to continue ISDS reform discussions
The 35th session of Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) takes place April 23–27, 2018
Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) signed
On March 8, 2018, the CPTPP was signed in Santiago, Chile. The free trade agreement involves 11 countries in the Pacific region: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.
Government Regulatory Space in the Shadow of BITs: The Case of Tanzania’s Natural Resource Regulatory Reform
Tanzania passed three new laws in July 2017 that significantly change the regulatory landscape governing natural resources. The reforms are aimed at ensuring that foreign investment benefits Tanzanian citizens.From an African perspective, this article argues that it is time to rethink investment treaty regimes to ensure that they do not hinder much-needed reforms.
UNCTAD’s 2017 High-level IIA Conference: Moving Forward on Addressing Older-Generation International Investment Agreements
Over 300 experts gathered in Geneva to take stock of the sustainable development-oriented reform of the investment treaty regime and discuss policy options for modernizing the existing stock of older-generation treaties. Participants recognized that multilateral collaboration would be key to addressing the complex IIA regime.
Review of The Political Economy of the Investment Treaty Regime
In their new book, Jonathan Bonnitcha, LaugePoulsen and Michael Waibel develop a coherent structure for policy analysis of investment treaties that should attract interest as governments review their treaty policies. It argues that investment treaties as currently applied often appear poorly tailored to address identifiable economic concerns.
UNCITRAL Working Group III holds first meeting on possible reform of ISDS
During the week of November 27–December 1, 2017, Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) held its first meeting on possible reform of investor–state dispute settlement (ISDS).
NAFTA 2.0: Canada, Mexico and U.S. negotiation rounds move into the first quarter of 2018
The three parties to the North American Free Trade Agreement (NAFTA) held the third, fourth and fifth rounds of renegotiation (Ottawa, September 23–27; Arlington, October 11–17; and Mexico City, November 17–21). The next round of NAFTA renegotiations is scheduled for January 23–28, 2018 in Montreal.
TPP-11 ministers agree on core elements of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)
On November 11, 2017, in Da Nang, Vietnam, ministers of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam “agreed on the core elements of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).”
ICSID tribunal affirms jurisdiction over dispute between Chinese construction firm and Yemen
Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30
Claims brought by a company controlled by an Egyptian billionaire against Algeria are held inadmissible
Orascom TMT Investments S.à r.l. v. People’s Democratic Republic of Algeria, ICSID Case No. ARB/12/35
UNCITRAL tribunal dismisses allegations of Hungarian investor’s bribery and refuses to set aside contract with Croatia
The Republic of Croatia v. MOL Hungarian Oil and Gas Plc, PCA Case No 2014-15
Adjudicator Compensation Systems and Investor–State Dispute Settlement
This paper examines compensation systems for adjudicators and dispute settlement administrators in investor–state dispute settlement (ISDS).
Investor–State Arbitration and Human Rights
This book examines the interrelations between human rights and international investment law and discusses whether and how human rights arguments may be presented in the course of arbitral proceedings based on investment treaties.
A Look into China’s Slowly Increasing Appearance in ISDS Cases
China has sustained robust inbound and outbound flows of foreign direct investment and expanded its web of investment treaties. This note sheds light on the country’s appearance in investment treaty cases in the past decade, either as home or host state.
Investment Treaties and the Internal Vetting of Regulatory Proposals: A Case Study from Canada
Does the prospect of foreign investor claims against countries in investor–state arbitration lead to regulatory chill? The authors asked officials whether ISDS contributed to changes in the internal vetting of government decisions on environmental protection.
Report on third-party funding in international arbitration opened for public comment
The International Council for Commercial Arbitration (ICCA)–Queen Mary Task Force on Third-Party Funding in International Arbitration opened its draft report for public comment.
Argentina ordered to pay over USD320 million for unlawful expropriation in airlines case
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID Case No. ARB/09/1
WNC v. Czechia: tribunal dismisses expropriation claim and determines that it has no jurisdiction over all other claims
WNC Factoring Limited v. The Czech Republic, PCA Case No. 2014-34
Can Bolivian State-Owned Companies Submit to International Arbitration? Analyzing Bolivia’s Intricate Legal Framework on Foreign Investment
The Bolivian government has enacted three laws—on investment, arbitration and state-owned companies—that reflect the country’s public policy on domestic and foreign investment. Investing in Bolivia requires a careful reading of the three new laws.
The Settlement of Investment Disputes: A Discussion of Democratic Accountability and the Public Interest
In the context of disputes involving governments, settlement agreements threaten accountability, respect for the rule of law, transparency and respect for citizens’ rights and interests. Any reform agenda must cover settlements and the policy issues they raise.
SIAC Investment Arbitration Rules come into effect; new SCC rules include appendix on investment treaty disputes
On January 1, 2017, the Investment Arbitration Rules of the Singapore Investment Arbitration Centre (SIAC) came into effect. Among the highlights are provisions on early dismissal of claims and defences, submissions by […]
European Union and Canada co-host discussions on a multilateral investment court
On December 13 and 14, 2016, the European Commission and the Canadian Government co-hosted exploratory discussions on establishing a multilateral investment court. Government representatives from several countries attended the closed-door meeting in […]
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 […]
Pac Rim v. El Salvador: all claims dismissed; OceanaGold to pay US$8 million in costs
Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12 On October 14, 2016, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) dismissed […]
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.
UNCTAD’s International Investment Agreements Conference 2016: Taking IIA Reform to the Next Level
As part of the World Investment Forum (WIF) 2016,[1] negotiators of international investment agreements (IIAs) and various stakeholders convened at the High-Level IIA Conference on July 19, 2016 in Nairobi, […]
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
Brazil and India initial bilateral investment treaty (BIT); text yet to be published
During the 10th Annual Forum of Developing Country Investment Negotiators, held in Colombo, Sri Lanka, from November 7 to 10, representatives from Brazil and India announced that they had recently initialled a bilateral investment agreement (BIT).
CETA signed; Canada and European Union to “work expeditiously” on creating a Multilateral Investment Court
On October 30, during the 16th European Union–Canada Summit held in Brussels, the two negotiating partners signed the Comprehensive Economic and Trade Agreement (CETA), after seven years of negotiations.
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
ICSID tribunal dismisses MFN clause in WTO GATS as a means of importing Senegal’s consent to arbitration from third party BIT
Menzies Middle East and Africa S.A. and Aviation Handling Services International Ltd. v. Republic of Senegal, ICSID Case No. ARB/15/21- Suzy H. Nikièma
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?
News in Brief
US$50 billion awards against Russia in Yukos Cases are set aside by Dutch Court
TTIP draft to be prepared by July; ISDS being built based on both EU and US proposals
China – US BIT: ISDS to be included; ongoing negotiations on negative lists
Three mining disputes: The first investment disputes against Colombia come to light
Canada-European Union CETA re-concluded in February to incorporate the EU ICS proposal
Second ICSID claim filed against Uruguay; Philip Morris decision still pending
Singapore International Arbitration centre releases investment arbitration rules
TTIP draft to be prepared by July; ISDS being built based on both EU and U.S. proposals
Officials from the European Union and the United States gathered in Brussels for the 12th round of negotiations over the Transatlantic Trade and Investment Partnership (TTIP) from February 22 to 26.
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.
Canada–European Union CETA re-concluded in February to incorporate EU ICS proposal
Responding to EU requests, Canadian and EU officials reopened negotiations of the Comprehensive Economic and Trade Agreement (CETA) concluded in 2014 to reformulate the agreement’s investor–state dispute settlement (ISDS) clause. Re-concluded […]
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 renders interim decision on Ecuador’s environmental counterclaim in long-running dispute
Perenco Ecuador Limited v. Republic of Ecuador, ICSID Case No. ARB/08/6
European Commission addresses TTIP concerns at European Parliament meeting
At a March 18, 2015 meeting at the European Parliament’s International Trade Committee, EU Trade Commissioner Cecilia Malmström presented four “preliminary ideas” to address public concerns about investment in the […]