Resources and Events

Resources

Fair and Equitable Treatment: UNCTAD Series on Issues in International Investment Agreements II
UNCTAD, March 2012
This paper explores how the concept of Fair and Equitable Treatment (FET) has been defined in international investment agreements (IIAs) and how different formulations have been interpreted by arbitral tribunals. The substantive content of the FET standard has been framed by arbitral tribunals on a case-by-case basis. This is a continuing development, which is reinforced by the practice of tribunals to refer to, and discuss, earlier awards. Although each tribunal interprets a FET provision from the investment treaty applicable in that specific case, there has been a certain convergence in terms of the elements that the FET standard includes. At the same time, arbitral practice has revealed important differences in the application of the standard, which depend on the type of FET formulation used. Against this background, the last section of the paper offers policy options for negotiators. They include FET clauses with or without reference to sources and qualifications (e.g. minimum standard of treatment under customary international law), an option to replace the general FET obligation with more specific substantive requirements, and an option to omit the FET clause, as well as additional clarifications designed to provide more legal certainty and ensure that the right of States to regulate in the public interest is not compromised. The paper is available at: http://www.unctad.org/en/docs/unctaddiaeia2011d5_en.pdf

Recent Developments in International Investment Disputes: Investment Treaty Cases from September 2010 to October 2011
International Institute for Sustainable Development, October 2011
This brief highlights the relevant developments in international investment disputes in an attempt to outline some of the wider policy implications of the arbitral awards between September 2010 and October 2011. Through a case analysis of some of the most significant awards on jurisdiction and liability, this brief provides an overview of the substantive issues that arose in the various arbitral awards. It outlines how tribunals have defined the term “investment” and how they have interpreted the provisions on most-favoured nation treatment, expropriation, fair and equitable treatment, and dispute resolution under investment treaties and foreign investment laws. The brief is available at: http://www.IISD.org/pdf/2012/investment_treaty_cases_2010_2011.pdf

Regulating Global Capital Flows for Development
Task Force on Regulating Global Capital Flows for Long-Run Development, March 2012
This report posits that there is a clear rationale for capital account regulations (CARs) in the wake of the financial crisis, that the design and monitoring of such regulations is essential for their effectiveness, and that a limited amount of global and regional cooperation would be useful to ensure that CARs can form an effective part of the macroeconomic policy toolkit. The protocol for deploying capital account regulations in developing countries that is put forth in this report stands in stark contrast to a set of guidelines for the use of capital controls endorsed by the board of the International Monetary Fund (IMF) in March 2011. The report is from the Task Force on Regulating Global Capital Flows for Long-Run Development, a group of scholars and policy makers engaged committed to preventing and mitigating financial crises in the developing world. The report is available at: http://www.ase.tufts.edu/gdae/policy_research/RegulatingGlobalCapitalFlows.html

Farms and Funds: Investment Funds in the Global Land Rush
International Institute for Environment and Development, January 2012
Investment funds show a growing interest in farmland and agriculture. They are buying up land and agribusinesses in developing countries with the expectation of high long-term returns linked to rising land prices, growing populations and increasing demand for food. While the media has reported extensively on the involvement of these funds in the global land rush, the mechanics remain little understood by the broader public. This policy brief looks at the following questions: What is the interest and what is driving it? Who are the players and what processes do their investment decisions go through? What are the impacts in recipient countries? And what action can be taken to promote investments that genuinely support local people? The brief is available at: http://pubs.iied.org/17121IIED.html?c=agric/food

Events

April

16
Reference to WTO law in international investment arbitration: A promising trend or a separateness to be maintained?, Columbia University, New York, http://www.vcc.columbia.edu/content/reference-wto-law-international-investment-arbitration-promising-trend-or-separateness-be-ma

21-26
Thirteenth session of the United Nations Conference on Trade and Development (UNCTAD XIII), Doha, Qatar, http://www.unctad.org/Templates/meeting.asp?intItemID=1942&lang=1&m=21643

23
Navigating EU Law and the Law of International Arbitration, Columbia University, New York, http://www.vcc.columbia.edu/content/navigating-eu-law-and-law-international-arbitration

May

24-27
International Arbitration and Dispute Resolution Symposium, Salzburg, Austria, http://cils.org/conferences/conference.php?ConferenceID=251&

June

10-13
21st International Council for Commercial Arbitration Congress (ICCA), Singapore, http://www.iccasingapore2012.org/site/

18
EU and Investment Agreements – Open Questions and Remaining Challenges, Vienna, Austria,
contact titi@recht.wiwi.unisiegen.de