This brief article describes some important aspects of the draft investment chapter of the Canada-EU CETA, as well as commentary on the potential implications should Canada and EU sign on to these provisions.
While the revision that gave birth to the United States’ Model bilateral investment treaty in April 2012 has been closely observed and commented upon, much less attention has been paid to changes made to the Canadian Model BIT.
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China is often singled out as one of the big ‘land grabbers’, although it strongly refutes these claims. We set out to verify whether reports about Chinese investments were accurate or not.
A major challenge for investment treaty designers and adjudicators is to separate opportunistic behavior by host states that should be sanctioned under international law from bona fide public policy measures that should not. This article suggests that International Investment Agreements need to be both ‘smarter’ and more ‘flexible’ to better make that distinction. It draws on economic contract theory as a basic framework, and political economy theory for fine-tuning.
Resources Chinese Outward Investment: An Emerging Policy Framework Nathalie Bernasconi-Osterwalder, Lise Johnson, Jianping Zhang, IISD, 2012 This book is an English-language compilation covering over 80 primary texts relevant to Chinese […]
Claim against Venezuela dismissed; State acted legitimately in response to contractual violations Vannessa Ventures Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)04/6 Damon Vis-Dunbar A claim by Vannessa […]
New Rules on Transparency in UNCITRAL Investor-State Arbitration Agreed in New York A United Nations working group agreed in February to new rules that will make at least some investor-state […]
In the 2012 report Profiting from Injustice, jointly published by Corporate Europe Observatory and the Transnational Institute, we boldly asserted that law firms, arbitrators and third-party funders have, over the […]
The expanded role played by Export Credit Agencies (ECAs) since the global financial crisis has not been matched with stronger rules that address the human rights-related impacts of ECA financed projects. Given narrow set of regulations that currently apply to ECAs, this brief article argues that more needs to be done to ensure that ECA financed projects do not cause harm to home states.
While an extensive body of literature maps the tensions between regulatory sovereignty and investor protection in international investment law and analyses the balancing of private and public interests in arbitral practice, only a small sub-set of this literature makes reference to public interest considerations at the remedies stage of the investor-state arbitration process.
Broad interpretations of the standard for fair and equitable treatment (FET) by investment tribunals have become a source of increasing controversy. In theory, linking FET to customary international law (CIL), which is formed through the “general and consistent practice of states” that they follow out of a sense of legal obligation (opinio juris), results in a standard of protection that is more deferential to the regulatory authority of governments than the “autonomous” standard. In practice, however, investment tribunals continue to construe even CIL-based FET provisions to impose broad limits on government authority by accepting, without any evidence of state practice or opinio juris, the pronouncements of previous tribunals as definitive evidence of the standard under CIL.
US$1.76 billion dollar award levied against Ecuador in dispute with Occidental; tribunal split over damages Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, […]
Canada receives investor complaints over provincial energy and environment policies In recent months the government of Canada has received two complaints related to energy and environmental policies adopted by its […]
Resources Foreign Direct Investment and Human Development: The Law and Economics of International Investment Agreements Edited by Olivier De Schutter, Johan Swinnen, Jan Wouters. Routledge, November 2012 This book presents […]
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The United Nations Conference on Trade and Development (UNCTAD) has released its Investment Policy Framework for Sustainable Development (IPFSD). This article engages in an independent assessment of the IPFSD.
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.
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.
SADC Model BIT
Resources International Arbitration Case Law This website is a private, not-for-profit academic endeavour, in partnership with the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of […]
Majority declines jurisdiction in claim against Argentina over domestic litigation requirement Daimler Financial Services AG v. Argentine Republic, ICSID Case No. ARB/05/1 Damon Vis-Dunbar A claim against Argentina by a […]
South Africa begins withdrawing from EU-member BITs South Africa has terminated its bilateral investment treaty with Belgium and Luxembourg, and intends to phase out other treaties with European countries. In […]
On 12 June 2012, the United Nations Conference on Trade and Development launched its Investment Policy Framework for Sustainable Development. IPFSD comes at a time when the international investment regime is in a state of “transition” and when an increasing number of governments are reviewing their investment-related regulatory frameworks, both at the national and international levels.
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.
PDF – English (914 KB) – Français (1 MB) – Español (1 MB) Investment Treaties and Investor Corruption: An Emerging Defense for Host States?; Dealing With the Increasing Complexity of […]
From October 1-5, 2012, a working group of the United Nations Commission on International Trade Law met in Vienna to continue work on how to ensure transparency in treaty-based investor-state arbitration. It was the working group’s fifth week-long meeting on the topic, but will not be the last.
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.
With the European Union’s Lisbon Treaty, in force since December 2009, foreign direct investment fell under the exclusive competence of the European Union (EU). Since then the three European institutions—the […]
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UNCTAD’s Investment Policy Framework for Sustainable Development (IPFSD) UNCTAD, June 2012 The United Nations Conference on Trade and Development (UNCTAD) has established a set of principles for investment policymaking, guidelines […]
Claim against Slovakia dismissed, as tribunal complains of poorly presented case Jan Oostergetel and Theodora Laurentius v. The Slovak Republic Damon Vis-Dunbar A tribunal has dismissed a claim by a […]
Vattenfall launches new claim against Germany The Swedish state-run energy firm Vattenfall has launched a second claim against Germany. The claim stems from Germany’s May 2011 decision to phase-out its […]
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[T]he Tribunal must balance the legitimate and reasonable expectations of the Claimants with […] [the] right to regulate the provision of a vital public service.[1] This quote from an investment […]
The appropriate standard of review to be applied in investor-state arbitration—as well as in other dispute settlement contexts, for that matter—remains a recurrent and much debated topic.[1] The reason is […]
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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 […]
Australia to reject investor-state dispute resolution in TPPA The Australian government will not sign on to investor-state dispute resolution provisions in the Trans-Pacific Partnership Agreement (TPPA), according to an Australian […]
US court vacates award against Argentina BG Group Plc v. Argentina Lise Johnson A US appellate court has vacated an award against Argentina in a decision that may give investors […]
The arbitral tribunal in Chevron v. Ecuador[1] has taken a series of steps in recent months suggesting that it has a broad view of its authority. But while it may […]
Negotiations over transparency in investor-state arbitrations have reached a critical juncture heading into an October 2012 meeting in Vienna. During the last meeting in February 2012, a large number of […]
Debates about investment treaties often raise questions about fairness and independence in international investment arbitration. Some observers argue that investment arbitration offers a neutral and impartial forum in which to […]
In January 2012, the Bolivarian Republic of Venezuela denounced the ICSID Convention,[1] becoming the third country – after Bolivia and Ecuador – to do so. The exit from the global […]
In November 2011, an arbitral tribunal found the Republic of India guilty of violating the India-Australia bilateral investment treaty (BIT). It is the first known investment-treaty ruling against India, despite […]
A dispute will only fall within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID) if it directly arises out of an ‘investment’, as is provided by Article 25(1) of the Convention for the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). However, not only does the ICSID Convention fail to provide any definition of what constitutes an ‘investment’, the drafters of the ICSID Convention, in fact, made an express decision not to include such a definition. This absence has given rise to interesting issues of interpretation as ICSID tribunals have sought to arrive at an understanding of how the term ‘investment’ should be properly understood for the purposes of the ICSID Convention.
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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 […]
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