Canada Publishes 2021 Model Foreign Investment Promotion and Protection Agreement

On May 13, 2021, Canada announced that it had finalized its 2021 Model Foreign Investment Promotion and Protection Agreement (FIPA), which will replace the 2014 version. According to Global Affairs Canada, the agreement is the result of “extensive public consultations initiated in 2018 with a broad range of stakeholders, including from civil society and labour unions, legal experts, representatives of all sizes of Canadian business, representatives of provinces and territories, and Indigenous partners.”

Progress report on ECT modernization negotiations indicates familiar divisions among delegations as push for EU withdrawal grows

Following three negotiation rounds on ECT modernization last year, the most recent of which concluded on November 6, 2020, a leaked progress report from December 2020 suggests that state parties are still divided on key issues. This makes progress in negotiations, which require consensus from the national delegations, difficult to come by.

EU and China announce an “in principle” investment agreement

On December 30, 2020, after seven years of discussion, Brussels and Beijing announced the conclusion of the negotiations for an “in principle” Comprehensive Agreement on Investment (CAI) between China and the European Union.

French consortium kicks off an ICSID claim against Chile after USD 37 million loss due to COVID-19 Pandemic

On January 19, 2021, the main shareholders of a consortium controlling the billion-dollar concession for Santiago’s Arturo Merino Benítez international airport informed Chilean President Sebastián Piñera of their intention to initiate an ICSID claim. The investors claimed they had suffered losses as a consequence of measures taken in response to the COVID-19 pandemic.

UNCITRAL Working Group III: 40th Session focused on elements of structural reform

The UNCITRAL Working Group III (WGIII) convened virtually from February 8 to 12 for its 40th session. During this session, the group’s deliberations focused on two main issues related to structural reform of  ISDS: the selection and appointment of ISDS tribunal members in the context of a “Standing mechanism” or “Standing body” (A/CN.9/WG.III/WP.203) and an appellate mechanism (A/CN.9/WG.III/WP.202).

CETA Investment Court System advances toward implementation while Irish activists launch campaign opposing ratification

Four decisions adopted by Canada and the European Union on January 29 have moved the parties closer to implementing an Investment Court System (ICS) under the Canada-EU Comprehensive Economic and Trade Agreement (CETA).  The decisions on appeals, interpretation, code of conduct, and mediation were formally endorsed by CETA’s Joint Committee and Committee on Services and Investment (CSI) and will take effect once the dispute resolution provision of CETA comes into force.

EU investment screening

The EU’s foreign investment screening mechanisms became operational on October 11, 2020.  As we’ve reported, guidance on the screening mechanisms, which are implemented by individual member states, was released in March 2020 following the 2019 entry into force of the FDI Screening Regulation.

EC suggests withdrawal is a possibility as Energy Charter Treaty modernization negotiations continue

On December 2, 2020, in an answer to questions submitted by MEPs, the EC suggested that the EU could exit the ECT.

Asia-Pacific leaders sign RCEP

On November 15, 2020, 15 Asia-Pacific countries signed the Regional Comprehensive Economic Partnership (RCEP) nearly one year after negotiations came to a close.

UNCITRAL Working Group III pre-intersessional meeting on the use of mediation in ISDS

On November 9, 2020, the Asian Academy of International Law hosted a virtual event on the use of mediation in investor–state dispute settlement. This event is one of several being organized by UNCITRAL in parallel to the formal meetings of the Working Group III on investor–state dispute settlement reform.

IIA Reform Accelerator Launches

UNCTAD’s IIA Reform Accelerator launched in November 2020.

UNCITRAL Working Group III sessions to resume in October

Negotiators working on multilateral reform of the ISDS system will reconvene on October 5 to 9, 2020, in Vienna for their 39th session. This session, which was originally to be held in March and April 2020, was rescheduled in light of the COVID-19 pandemic.

CETA faces hurdle after Cypriot parliament fails to ratify the agreement

On July 31, 2020, the Cypriot parliament voted against the ratification of CETA, the trade deal between the EU and Canada.

U.S.–Kenya FTA negotiations underway

The U.S. and Kenya formally launched negotiations on the US–Kenya FTA on July 8, 2020. If concluded, the agreement would be the first bilateral trade agreement between the U.S. and a sub-Saharan African state.

European Commission initiates infringement proceedings against the UK and Finland for failing to terminate intra-EU BITs

On May 14, 2020 the EC initiated infringement proceedings against the UK and Finland for failing to terminate the intra-EU BITs to which they are a party. Though the UK has formally left the European Union, EU law continues to apply to the UK during the transition period, which ends on December 31, 2020.

Investment facilitation talks move to negotiating phase

Following two years of “structured discussions,” the negotiations for a proposed WTO multilateral framework for investment facilitation (MFIF) are set to begin on September 24–25, 2020.

Update on EU trade and investment agreement negotiations: Indonesia, Mexico, Vietnam, and China

Negotiations for the Indonesia–EU FTA have been ongoing since 2016, with the ninth round taking place on June 15–26, 2020.

India moves to restrict foreign investment from its neighbours and bans dozens of Chinese apps

The government of India has recently enacted significant restrictions on inward FDI coming from its neighbours, in a move that seems calculated to target Chinese investment.

EU consultation on cross-border investment within the EU comes to an end

As we reported, the EC launched a consultation to clarify and supplement rules on cross-border investment within the EU in May 2020.

Latest round of talks on ECT modernization yields little progress on “modernization”; European officials call for removal of protection for fossil fuels and ISDS

Two rounds of the negotiations for the modernization of the ECT have been held over the past two months, from July 6 to 9 and September 8 to 11, 2020.

EC launches consultation on facilitating intra-EU investment

On May 26 2020, the EC launched a consultation to clarify and supplement rules on cross-border investment within the EU. According to the consultation document released by the EC, the […]

European Commission Releases Guidance for FDI Screening in Response to Global Pandemic

On March 25, 2020, the European Commission published a guidance for member states on FDI screening in the face of the COVID-19 pandemic, focusing on, but not limited to, health-related industries.

Director-General of the World Trade Organization steps down unexpectedly

The director-general of the WTO, Roberto Azevêdo, announced on May 14, 2020, that he will be cutting his term short by one year and stepping down as of August 31. Azevêdo has served in the position since September 1, 2013, with his second term starting in 2017.

EU Releases Proposal for ECT Modernization

The EU released a proposal for the modernization of the  ECT on May 27, 2020.  This latest draft of the EU’s proposal includes changes to the treaty’s definition of investment, an affirmation of parties’ right to regulate, a narrower definition of FET, and reference to a multilateral investment court. The proposal also suggests several additional articles on sustainable development, frivolous claims, security for costs, interventions by third parties, third-party funding, and valuation of damages.

EU Member States Sign Agreement to Terminate Intra-EU BITs While German Investor Brings Claim Against the Netherlands Under the ECT

On May 5, 2020, 23 European Union member states* formally agreed to the termination of intra-EU BITs.

USCMA to Enter into Force on July 1 Following Canada’s Rushed Ratification Earlier This Year

On April 24, 2020, USTR Robert Lighthizer announced that the USMCA would enter into force on July 1 of this year, one month later than was previously agreed upon.

COVID-19 Pandemic Pushes Back Start Date for AfCFTA Entry into Force

The entry into force of the African Continental Free Trade Area (AfCFTA) has been delayed due to the Covid-19 pandemic, according to the Secretary General of the AfCFTA Secretariat, Wamkele Mene. The first phase of the agreement will now take effect by January 2021 at the earliest.

Investment Facilitation Talks: WTO member group considers new consolidated text

The 101 WTO members discussing a proposed multilateral framework on investment facilitation are now considering a new “consolidated text,” which is meant to be a stepping stone for formal negotiations once these begin.

January UNCITRAL session considers appellate mechanism, standing court, and arbitrator and adjudicator issues

Negotiators working on multilateral reform solutions to ISDS reconvened in Vienna in January 2020 to resume their 38th session, holding talks around the possibility of an appellate mechanism, the benefits and challenges of setting up a permanent court on investment issues, and the process around choosing arbitrators and adjudicators.

Investment facilitation talks set sights on WTO MC12 outcome, prepare for negotiations

Los 99 miembros de la OMC participantes de los debates estructurados sobre un posible marco multilateral para la facilitación de las inversiones están preparándose para pasar al modo negociación desde marzo del 2020 en adelante, en un intento por anunciar un “resultado concreto” en la 12ª Conferencia Ministerial de la OMC a realizarse en Nur-Sultan, Kazakstán, en junio de 2020.

ECT modernization: Conference meets in December 2019, sets stage for 2020 negotiating meetings

The negotiations for ECT modernization are now underway, with the first such meetings held in December 2019 and at least four other sessions planned over 2020.

China–EU investment talks: Negotiators debate new market access offers, eyeing 2020 outcome

The talks between China and the EU for a Comprehensive Agreement on Investment saw an important milestone in December 2019, as the two sides exchanged new market access offers. They had exchanged market access offers once previously, in July 2018.

Trump signs USMCA, bringing NAFTA’s replacement closer to entry into force

The United States–Mexico–Canada Agreement (USMCA) has been ratified and signed into law in the United States, bringing the trade and investment deal one step closer to entry into force. Of the three countries involved, the only one that has not completed its ratification processes is Canada.

Brexit: United Kingdom leaves EU amid questions on future trade, investment relationships

The United Kingdom’s exit from the EU formally took place on January 31, 2020, following years of talks and repeated extensions in the Brexit deadline. With the United Kingdom now in an 11-month transition period, questions remain over the shape of the country’s future trade and investment relationship with the EU and other partners, though some further indications of what this may entail are beginning to emerge.

Australia trade deals with Hong Kong, Peru enter into force, Indonesia agreement ratified

The new year saw the entry into force of two new trade deals involving Australia, namely those involving Peru and Hong Kong. The two agreements both feature investment chapters and were ratified in the Australian legislature in late December, together with a separate accord involving Indonesia.

EU parliamentarians endorse Vietnam trade, investment deals

The European Parliament has given the green light to the 27-nation bloc’s trade and investment agreements with Vietnam, over seven years after those negotiations formally began.

Coalition of civil society groups, trade unions caution against MIC option at UNCITRAL

A group of 20 civil society organizations and trade unions from the African continent have circulated a letter questioning the EU’s multilateral investment court (MIC) proposal in the context of the UNCITRAL Working Group III talks on multilateral ISDS reform and urging for a set of alternative proposals to advance instead.

UN Forum on Business and Human Rights highlights the importance of coherent policies

From November 25 to 27, 2019, the Office of the UN High Commissioner for Human Rights hosted this year’s United Nations Forum on Business and Human Rights in Geneva, Switzerland.

UNCTAD IIA Conference: WTO talks on investment facilitation take centre stage in break-out session

The UNCTAD High-Level IIA Conference, held in Geneva, Switzerland, in November 2019 featured a session dedicated to investment facilitation and promotion.

ECT modernization: Energy Charter Conference adopts mandate, confirms December talks

On November 6, 2019, the Energy Charter Conference confirmed that it would hold the first session of its “Modernization Group” on December 12, 2019, kicking off the process to revise the decades-old ECT.

Asia–Pacific leaders clinch RCEP trade and investment deal, pledge to continue talks with India

Leaders from 15 of the countries negotiating the Regional Comprehensive Economic Partnership (RCEP) announced on November 4, 2019, that they had clinched a deal that would govern trade and investment across a wide swath of the Asia–Pacific region.

Joint initiative on investment facilitation looks to “meaningful outcome” for WTO ministerial

The joint initiative being pursued by 92 WTO members on developing a multilateral framework on investment facilitation has reached a new phase, with various new participants involved and a push for significant progress ahead of a December stocktaking meeting.

Nord Stream 2: Pipeline spat with EU evolves into ECT dispute

A long-simmering row over plans for two new pipelines that would carry natural gas from Russia into Germany has advanced quickly in recent months, after gas company Nord Stream 2 submitted a notice of arbitration against the EU under the ECT on September 26, 2019.

U.S. officials raise concerns over proposed MIC in talks with the United Kingdom, documents say

A set of documents purporting to capture the discussions of the United States–United Kingdom Trade and Investment Working Group from 2018 has recently been released into the public domain.

UNCITRAL secretariat publishes documents to be considered at October 2019 session of Working Group III on ISDS reform

Delegates to the UNCITRAL Working Group III process on multilateral ISDS reform will meet again in Vienna during the week of October 14–18, 2019.

ICSID rule amendment process: Third working paper released in August 2019, consultation with states scheduled for November 2019, approval expected for October 2020

On August 16, 2019, the ICSID secretariat released the third working paper featuring proposed rule amendments, based on inputs from member states and the public.

RCEP ministers: 2019 deal in sight, market access talks advancing swiftly

Negotiations for the RCEP trade and investment deal should be finalized by the end of 2019 and have seen notable progress on market access negotiations and services-related annexes, according to a statement issued in August by ministers from the 16 countries involved in the process.

EU–China investment negotiations: Advances on national treatment, financial services

Talks for an EU–China BIT have made some progress in the areas of financial services and national treatment, according to a report circulated by the European Commission in July, with another negotiating round planned for the week of September 23.

Investment facilitation: WTO members involved take stock of progress, look to intensify work

The 70 WTO members participating in the structured discussions on a possible multilateral framework on investment facilitation concluded their current phase of work in late July and are reportedly looking to “intensify” their efforts after the organization’s annual August hiatus.

African Continental Free Trade Agreement (AfCFTA) operational phase kicks off, with eyes on implementation and Phase II talks, including investment

The African Union formally kicked off the operational phase of the African Continental Free Trade Agreement (AfCFTA) during a high-level summit in Niger in early July 2019 that brought together heads of state and government from across the continent.