(English) 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.
Restructuración corporativa y abuso de derechos: tribunal de la CPA declara inadmisible la demanda de Philip Morris contra reglas sobre empaquetado genérico de tabaco de Australia
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
(English) 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
(English) 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).
(English) 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.
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 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.
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?
(English) Since 2008, China and the United States have undergone 24 negotiation rounds for a bilateral investment treaty (BIT).
(English) 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.
(English) 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.
(English) 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
(English) 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.
(English) 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.
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.
(English) Three reports by CAITISA, Ecuador’s citizen audit commission on bilateral investment treaties (BITs), were leaked by online newspaper Diagonal on January 24, 2016.
(English) 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.
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
(English) 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
(English) 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?
(English) 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
(English) 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
(English) Poštová Banka, a.s. and Istrokapital SE v. The Hellenic Republic, ICSID Case No. ARB/13/8
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 United States contemplate including the mechanism in the deal they are currently negotiating, the Transatlantic Trade and Investment Partnership (TTIP). Public awareness is growing of […]
The Brazil–Mozambique and Brazil–Angola Cooperation and Investment Facilitation Agreements (CIFAs): A Descriptive Overview
(English) 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.
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 economic and social benefits that result from those investments. This can be achieved with tax policies or targeted recruitment of specific investments with promising potential […]
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.
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.
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.
National investment codes may function as potential sources of international investment law. In other words, states may make unilateral undertakings within the framework of national investment legislations and, as a result, be considered as having “created international obligation[s]”. The addressees of national investment legislations are foreign investors as well as the state that is itself […]
As members of the Eurozone are now acutely aware, the lack of a sovereign debt restructuring regime is one of the most glaring gaps in the international financial architecture. That said, this summer’s decision by a tribunal of the International Centre for Settlement of Investment Disputes (ICSID), which grants a bilateral investment treaty (BIT) jurisdiction […]
It is an established fact that many transnational companies choose the jurisdiction of the Netherlands as a base for their global trade and investment operations, at least partly because of the country’s favourable tax regime that facilitates corporate tax avoidance strategies. A new report by the Centre for Research on Multinational Corporations (SOMO) entitled “Dutch […]
2010 midterm congressional elections in the United States: Implications for new U.S. International Investment Agreements
The Republican victories in U.S. congressional elections on 2 November 2010 are widely assumed to have increased the odds that the Obama administration will proceed with new bilateral investment treaties (BITs) and free trade agreements (FTAs) containing investment chapters. But this assumption bear closer examination. The post-election situation is complex.
UNCTAD’s 2010 World Investment Forum: High-level experts discuss investment policies for sustainable development
The 2010 World Investment Forum (WIF), held on 6-9 September 2010, in Xiamen, China, turned UNCTAD into the global gravity center for open, universal, inclusive and high-level international investment discourse and policy formation. Eight events and conferences were attended by more than 1,800 participants from 120 countries and 16 international organisations, among them nine heads of State, four heads of international organisations, 79 ministerial-level officials, and 116 senior business executives.
With the often costly and far-reaching implications when investors use Bilateral Investment Treaties (BITs) to adjudicate claims against developing countries, governments in the developing world need powerful arguments to justify that these treaties are in their national interest. One notable contribution to this debate has recently been put forth by political scientists Jennifer Tobin and Mark Busch, who set out to investigate the link between BITs and preferential trade agreements (PTAs). Using statistical techniques, they analyse annual data on pairs of developing and developed countries between 1960 and 2004 and conclude that BITs “raise the prospects of getting a North-South PTA with all the deeper and reciprocal obligations that these entail.”
By Damon Vis-Dunbar 2 October 2009 An advisory committee to the U.S. Department of State and the Office of the United States Trade Representative has issued its report on the United States’ model bilateral investment treaty. The United States is reviewing its model BIT with an emphasis on three topics in particular: (a) dispute settlement […]
United States Trade Representative and State Department hold Public Hearing and Solicit Written Comments in US Model BIT Review
By Elizabeth Whitsitt 2 September 2009 Last updated five years ago, the United States’ Model Bilateral Investment Treaty (BIT) is currently under review by the US Administration to ensure that it is consistent with the public interest and the overall U.S. economic agenda. As previously reported in the June 2009 edition of ITN*, an investment […]
By Damon Vis-Dunbar 15 July 2009 A position paper published by the Government of South Africa takes a critical posture towards the country’s bilateral investment treaties (BITs). “Existing international investment agreements are based on a 50-year-old model that remains focused on the interests of investors from developed countries.” writes the Department of Trade and Industry […]
By Damon Vis-Dunbar 8 June 2009 Norway has abandoned a draft model bilateral investment treaty (BIT), following public input that was largely critical. The draft text of the model BIT, released to the public in December 2007, features a number of innovations over previous Norwegian BITs, including transparent investor-state dispute settlement procedures, the requirement to […]
By Damon Vis-Dunbar 5 June 2009 The United States has embarked on a review of its model bilateral investment treaty (BIT). Last updated in 2004, the US closely adheres to the model in its BIT negotiations with other countries. The BIT review follows campaign pledges by President Barack Obama, in which he committed to “ensure […]
By Damon Vis-Dunbar and Henrique Suzy Nikiema 30 April 2009 The global network of over 2600 bilateral investment treaties (BITs) has been built on the basis of promoting foreign direct investment (FDI), and yet, after a decade of research, whether in fact BITs lead to an increase in FDI flows is a matter of debate. There […]
Reflections on Pakistan’s investment-treaty program after 50 years: an interview with the former Attorney General of Pakistan, Makhdoom Ali Khan
By Lauge Skovgaard Poulsen and Damon Vis-Dunbar 16 March 2009 Pakistan inked the first ever bilateral investment treaty (BIT) with the government of West Germany 50 years ago, before going on to accumulate one of the largest portfolios of BITs held by a developing country: some 47 in total, 35 of which were signed in […]
By Damon Vis-Dunbar 6 February 2009 Faculty at Columbia University in New York have called on U.S. President Barack Obama’s administration to address “imperfections” in the international legal regime that governs foreign investment. In a letter to the President, the academics write: “While the current international investment regime has been heralded as a great success, […]
Se Debaten Méritos de Arbitraje entre Inversor-Estado en Seminario de Arbitraje Internacional auspiciado por Fiscal General ecuatoriano
Por Fernando Cabrera Díaz 9 de Diciembre, 2008 El 1-2 de diciembre Noticias sobre Tratados de Inversión asistió a un seminario de dos días sobre arbitraje internacional en Quito, Ecuador, auspiciado por la Procuraduría General de Ecuador. El seminario se enfocó en el arbitraje internacional de inversión y su relación con la soberanía estatal. Se […]
As an arbitrator and one who does not have any connection with the Brazilian legal system, I can more particularly identify with the views of Weiler and de Oliveira. I can understand the confidence that Brazilians may have in their own courts when faced with the issue of resolving international investment disputes and the question […]
Merits of investor-state arbitration debated at international arbitration seminar hosted by Ecuador’s Attorney General
By Fernando Cabrera Diaz 9 December 2008 On 1-2 December Investment Treaty News attended a two-day seminar on international arbitration in Quito, Ecuador, hosted by Ecuador’s Attorney General’s Office. The seminar focused on international investment arbitration and its relation to state sovereignty. Opinions from different sides of the debate were voiced, including from Ecuadorean government […]
Por Elizabeth Whitsitt y Damon Vis-Dunbar 30 de Noviembre de 2008 En 1991, Brasil inició uno de los programas de privatización más grandes del mundo, vendiendo más de US$100 mil millones en activos. Diecisiete años más tarde, y con un Producto Interno Bruto (PIB) que califica como número diez en el mundo, Brasil es un […]
By Elizabeth Whitsitt and Damon Vis-Dunbar30 November 2008 In 1991, Brazil began one of the world’s largest privatization programs, selling more than US$100 billion worth of assets. Seventeen years later and with a Gross Domestic Product (GDP) that ranks tenth in the world, Brazil is an industrial power that, according to the World Bank, is […]