There are several efforts underway at multiple levels—national, bilateral, regional and multilateral—aimed at reforming theregime. These reform efforts are operating in parallel to developments in other areas of international investment governance, some of which have advanced quickly over the past year, including the structured discussions on investment facilitation at the , as well as efforts in the UN context to craft a binding treaty on business and human rights. This year’s High-Level IIA Conference assessed the progress made to date since launching UNCTAD’s 10 Options for Phase 2 of IIA Reform, looking at trends across multiple areas of international investment governance, as well as across world regions. This Insight summarizes the key takeaways from the 2019 event and considerations for Phase 2 going forward.
Judgment C-252 of 2019 of the Constitutional Court of Colombia: Change of precedent on the control of BITs
Judgment C-252 of the Constitutional Court of Colombia, on the constitutionality of the Colombia–France, has aroused interest for being the response of the constitutional judge to the way in which foreign investment protection clauses are incorporated into domestic law.
Talks for an–China 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.
Jurisdiction declined in case against Uruguay as ICSID tribunal concludes that American company lacked ownership or control over the investment
Italba Corporation v. Oriental Republic of Uruguay,Case No. ARB/16/9
The Kenyan government has made parliamentary oversight and public participation a constitutionally mandated part of anyapproval. While that same parliamentary involvement has fallen short of its desired potential, it could still play a valuable role in ensuring that BIT negotiations are open and transparent, and that the public is both aware of and engaged with the treaty-making process and what it means. This piece examines the lessons learned from Kenya’s BIT and experience to date. The author argues that the Kenyan High Court’s ruling that double taxation treaties do not require oversight and approval from the legislative branch should not set an example for the government as it considers how to revise its investment treaty-making processes.
Australia has signed a newwith Uruguay and an investment deal with Hong Kong. The agreements feature some changes or clarifications to past deals’ provisions on and on government regulations designed to fulfill public policy objectives, such as health.
ICSID tribunal upholds Panama’s plea of illegality in the making of an investment in a tourism project located in an Indigenous area
ÁLVAREZ Y MARÍN CORPORACIÓN S.A., BARTUS VAN NOORDENNE, CORNELIS WILLEM VAN NOORDENNE, ESTUDIOS TRIBUTARIOS AP S.A. AND STICHTING ADMINISTRATIEKANTOOR ANBADI V. REPUBLIC OF PANAMA,CASE NO. ARB/15/14
India found in breach of BIT with Germany by UNCITRAL tribunal in respect of agreement for lease of electromagnetic spectrum
DEUTSCHE TELEKOM AG V. THE REPUBLIC OF INDIA,CASE NO. 2014-10
Australia and Indonesia have now signed their Comprehensive Economic Partnership Agreement (IA-CEPA), bringing to a close a negotiating process that began in November 2010. The two countries signed the agreement on March 4, 2019. The IA-CEPA also includes an investment chapter and four related annexes, which cover an arbitrators’ code of conduct; expropriation and compensation; foreign investment policy; and public debt.
CONOCOPHILLIPS PETROZUATA B.V., CONOCOPHILLIPS HAMACA B.V., CONOCOPHILLIPS GULF OF PARIA B.V. AND CONOCOPHILLIPS COMPANY V. THE BOLIVARIAN REPUBLIC OF VENEZUELA,CASE NO. ARB/07/30
refers to rules and practices companies follow voluntarily to limit the negative social, environmental and other externalities caused by their activities. There is a trend to incorporate CSR standards in investment treaties. Could CSR clauses be useful in consolidating enforceable investor obligations and serving as a basis for state counterclaims?
UNIÓN FENOSA GAS, S.A. V. ARAB REPUBLIC OF EGYPT,CASE NO. ARB/14/4
In May 2018, the Dutch Ministry of Foreign Affairs published its new draft model bilateral investment treaty (), 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?
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 () mechanisms.
Making the Right to Regulate in Investment Law and Policy Work for Development: Reflections from the South African and Brazilian experiences
The right to regulate can be defined as states’ sovereign right to regulate in the public interest—their policy space. Because international investment agreements (IIAs) were created to limit certain aspects of countries’ right to regulate, the first wave of IIAs inhibited host countries’ regulatory experimentation that could be harmful to foreign investors’ rights.
UNCITRAL tribunal declines jurisdiction as France–Mauritius BIT does not apply to dual national investor
DAWOOD RAWAT V. THE REPUBLIC OF MAURITIUS,CASE 2016-20
UAB E ENERĢIJA V. REPUBLIC OF LATVIA,CASE NO. ARB/12/33
Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic,Case No. 2014-03
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 complexregime.
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.
Kazakhstan held liable for expropriation of Hourani family’s investment on second round of ICSID arbitration
Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan,Case No. ARB/13/13
Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen,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,Case No. ARB/12/35
Integrating Sustainable Development in International Investment Law: Normative incompatibility, system integration and governance implications
This book presents an important systematic study of the issue of sustainable development and international investment law, using conceptual, normative and governance perspectives to explore the challenges and possible solutions for making international investment law more compatible with sustainable development.
This book shows how the current reform in investment regulation is part of a broader attempt to transform the international economic order.
Two African developing countries respond to criticisms against the investment regime. The innovative treaty offers protection to foreign investors without compromising on the host state’s capacity to regulate in the public interest.
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.
Does the prospect of foreign investor claims against countries in investor–state arbitration lead to regulatory chill? The authors asked officials whethercontributed to changes in the internal vetting of government decisions on environmental protection.
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic,Case No. ARB/09/1
An ICSID tribunal dismisses its jurisdiction as investor abused its rights by “reviving” a company to access arbitration against Cameroon
Capital Financial Holdings Luxembourg SA v. Republic of Cameroon,Case No. ARB/15/18
Burlington Resources Inc. v. Republic of Ecuador,Case No. ARB/08/5
Argentina has come back to thenegotiation arena after a 15-year halt, concluding a treaty with Qatar and engaging in ongoing negotiations with Japan. The new treaty includes traditional along with innovative provisions.
Sustainability Toolkit for Trade Negotiators: Tapping the Potential of Trade and Investment Agreements for Achieving Environmental Goals
Developed byand the United Nations Environment Program (UNEP), this toolkit is designed to help trade and investment negotiators by showing how specific provisions can better support sustainable development objectives.
Ecuadorian President Rafael Correa formalized Ecuador’s withdrawal on May 16, 2017 from BITs concluded with 16 countries.
Ansung Housing Co., Ltd. v. People’s Republic of China,Case No. ARB/14/25
Supervisión y Control S.A. v. Republic of Costa Rica,Case No. ARB/12/4
Victor Pey Casado and Foundation Presidente Allende v. The Republic of Chile,Case No. ARB/98/2
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 Inaê Siqueira de Oliveira [*] After rendering separate decisions on jurisdiction¾one for the case brought by British company Churchill Mining PLC under the United […]
Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia,Case No. ARB/12/14 and ICSID Case No. ARB/12/40 After rendering separate decisions on jurisdiction—one for the case brought by British company Churchill Mining PLC under the United Kingdom–Indonesia bilateral investment treaty ( ), and another for Australian company Planet Mining Pty. Ltd.’s case under […]
Peter A. Allard v. The Government of Barbados,Case No. 2012-06 On June 27, 2016, a tribunal under the auspices of the Permanent Court of Arbitration (PCA) dismissed all claims by Canadian businessman Peter A. Allard against Barbados under the Canada–Barbados bilateral investment treaty ( ) and the Arbitration Rules of the United Nations Commission […]
The Government of India has proposed a Joint Interpretative Statement to its bilateral investment treaty () partners. The statement clarifies key substantive and procedural provisions, bringing them more in line with India’s new foreign investment policy.
Special and Differential Treatment (S&D), originally forged in the trade regime, has evolved in trade negotiations and gained momentum in investment agreements, to provide greater flexibility for developing countries based on their needs and capabilities.
Trump election affects mega-regional negotiations including TTIP, TPP and
Brazil and India initial Bilateral Investment Treaty (); text yet to be published
signed; Canada and European Union to “work expeditiously” on creating a Multilateral Investment Court
Venezuela to Pay Us$1 Billion For Expropriating Canadian Mining Company’s Investment
Tribunal dismisses Clause in GATS as a means of importing Senegal’s consent to arbitration from third party
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
CEAC Holdings Limited v Montenegro,Case No. ARB(AF)/14/8 – Maria Florencia Sarmiento
Ecuador’s levy on extraordinary oil profits at a 99% rate has breached Murphy’s legitimate expectations, decides PCA tribunal
Murphy Exploration & Production Company – International v. Republic of Ecuador,Case No. 2012-16 (formerly AA 434) – Inaê Siqueira de Oliveira
Foreign direct investment became part of the sphere of exclusive competence of the European Union in 2009. Since then, the European Commission has been negotiating investment treaties with a number of countries—as well as authorized several individualmember states to negotiate BITs.
Recasting Rules and Exceptions? On the Relationship Between Regulatory Sovereignty and International Investment Law
States’ regulatory powers are the rule, and investors’ rights under international investment law are the exception. Or is it the other way around? Book review of Public Purpose in International Law.
The 14th round of Transatlantic Trade and Investment Partnership (TTIP) negotiations was held in Brussels from July 11 to 15, 2016.