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.
Substantial damages awarded to Perenco for FET breach and expropriation; Ecuador also awarded compensation under environmental counterclaim
Perenco Ecuador Limited v. Republic of Ecuador,Case No. ARB/08/6
Belenergia S.A. v. Italian Republic,Case No. ARB/15/40
Glencore International A.G. and C.I. Prodeco S.A. v. Republic of Colombia,Case No. ARB/16/6
Lao Holdings N.V. v. Lao People’s Democratic Republic,Case No. ARB(AF)/12/6, and Sanum Investments Limited v. Lao People’s Democratic Republic, , Case No. 2013-13
Tribunal finds Pakistan breached FET, expropriation and non-impairment obligations in the context of a mining joint venture with Australian investor Tethyan Copper Company
Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan,Case No. ARB/12/1
In yet another renewable energy case, Spain held liable for FET breach for frustrating French and Luxembourger investors’ legitimate expectations under the ECT
Cube Infrastructure Fund SICAV and Others v. The Kingdom of Spain,Case No. ARB/15/20
ICSID Rule Amendment: An attempt to remedy some of the concerns regarding ISDS identified by UNCITRAL WG III
The process for updating’s rules has been taking place in parallel to the Working Group III deliberations on reform, prompting an important conversation of how these efforts may complement each other. In this new Insight, Rafael Ramos Codeço and Henrique Martins Sachetim examine the ICSID rule amendment process, taking a close look at a few key amendments under consideration and examining the extent to which these might help address some of the ISDS-related concerns that have been identified at UNCITRAL.
Ivory Coast’s New Investment Code: Focus on issues related to sustainable development and dispute settlement
Ivory Coast adopted a new investment code on August 1, 2018. This new law features a variety of innovations ranging from the revitalization of the institutional framework to the reconfiguration of tax rules to new obligations on investors.
The idea of entrusting party-appointed arbitrators with powers to decide investor–state disputes through final and binding awards, inherited from commercial arbitration and traditionally accepted as appropriate, now causes discomfort among critics.
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, thesecretariat released the third working paper featuring proposed rule amendments, based on inputs from member states and the public.
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
This piece examines recent trends in the use of third-party funding (TPF) in treaty-basedand the implications of TPF for investor conduct, developments in investment law and host state conduct. TPF has been raised in two multilateral processes currently underway: the talks to amend arbitration rules and to consider multilateral reform of ISDS at . Given the narrow nature of the TPF discussions in ICSID, the authors make the case for policy-makers to consider full or partial bans of TPF at UNCITRAL.
Thereleased on May 14 a set of draft negotiating directives setting out its proposed approach in “modernizing” the Energy Charter Treaty ( ).
Claims against Albania dismissed by ICSID tribunal as the Anglo-Adriatic Group did not have a protected investment
ANGLO-ADRIATIC GROUP LIMITED V. REPUBLIC OF ALBANIA,CASE NO. ARB/17/6
ICSID tribunal finds Spain breached ECT obligations by failing to provide a reasonable rate of return
RREEF INFRASTRUCTURE (G.P.) LIMITED AND RREEF PAN-EUROPEAN INFRASTRUCTURE TWO LUX S.A R.L. V. KINGDOM OF SPAIN,CASE NO. ARB/13/30
Investors’ legitimate expectation claims against Italy dismissed due to the absence of specific commitments
BLUSUN S.A., JEAN-PIERRE LECORCIER AND MICHAEL STEIN V. ITALIAN REPUBLIC,CASE NO. ARB/14/3
ICSID tribunal constituted by virtue of an MFN clause holds Turkmenistan liable for FET breach for requiring investors to produce “smeta,” a cost estimate required by Turkmen law
GARANTI KOZA LLP V. TURKMENISTAN,CASE NO. ARB/11/20
ANGLO AMERICAN PLC V. BOLIVARIAN REPUBLIC OF VENEZUELA,CASE NO. ARB(AF)/14/1
MARFIN INVESTMENT GROUP HOLDINGS S.A., ALEXANDROS BAKATSELOS AND OTHERS V. REPUBLIC OF CYPRUS,CASE NO. ARB/13/27
Kenya prevails in BIT arbitration: British investors’ claims dismissed due to the absence of environmental impact assessment
Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya,Case No. ARB/15/29
UP AND C.D. HOLDING INTERNATIONALE V. HUNGARY,CASE NO. ARB/13/35
Tribunal finds Costa Rica’s measures to protect the environment did not breach FET or its expropriation obligations under CAFTA-DR
DAVID R. AVEN AND OTHERS V. REPUBLIC OF COSTA RICA,CASE NO. UNCT/15/3
UNIÓN FENOSA GAS, S.A. V. ARAB REPUBLIC OF EGYPT,CASE NO. ARB/14/4
ICSID tribunal accepts jurisdiction over investor’s claim under United Kingdom–Czechia BIT but rules in favour of Czechia
A11Y LTD V. CZECH REPUBLIC,CASE NO. UNCT/15/1
Parkerings–Compagniet AS v. Republic of Lithuania,Case No. ARB/05/8 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Award available at https://www.italaw.com/cases/812 Keywords Broad dispute resolution provision, cultural measures, due diligence, environmental measures, exhaustion of remedies, expropriation, fair and equitable treatment, good […]
Phoenix Action Ltd. v. Czech Republic,Case No. ARB/06/5 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Award available at https://www.italaw.com/cases/850 Keywords Abuse of process, definition of “investment,” good faith, investor obligations, jurisdiction, “Salini” test Key dates Request for Arbitration: […]
Siemens A.G. v. Republic of Argentina,Case No. ARB/02/8 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Decision, award and other documents available at https://www.italaw.com/cases/1026 Keywords Corruption, damages, expropriation, interpretation, investor obligations, margin of appreciation, most favoured nation, proportionality, […]
Burlington Resources Inc. v. Republic of Ecuador,Case No. ARB/08/5 (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. Read more here.) Decisions and Award are available at https://www.italaw.com/cases/181 Keywords Taxation, investor obligations, environmental counterclaim Key Dates Request for Arbitration: April […]
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?
MASDAR SOLAR & WIND COOPERATIEF U.A. V. THE KINGDOM OF SPAIN,CASE NO. ARB/14/1
ACP AXOS CAPITAL GMBH V. REPUBLIC OF KOSOVO,CASE NO. ARB/15/22
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
Lighthouse Corporation Pty Ltd and Lighthouse Corporation Ltd, IBC v. Democratic Republic of Timor-Leste,Case No. ARB/15/2
FÁBRICA DE VIDRIOS LOS ANDES, C.A. AND OWENS-ILLINOIS DE VENEZUELA, C.A. V. BOLIVARIAN REPUBLIC OF VENEZUELA,CASE NO. ARB/12/21
Koch Minerals Sárl and Koch Nitrogen International Sárl v. The Bolivarian Republic of Venezuela,Case No. ARB/11/19
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.
Bear Creek Mining Corporation v. Republic of Peru,Case No. ARB/14/21
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
UNCITRAL tribunal dismisses allegations of Hungarian investor’s bribery and refuses to set aside contract with Croatia
The Republic of Croatia v. MOL Hungarian Oil and Gas Plc,Case No 2014-15
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.
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
Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain,Case No. ARB/13/36
Burlington Resources Inc. v. Republic of Ecuador,Case No. ARB/08/5
The Independence and Impartiality of ICSID Arbitrators: Current case law, alternative approaches, and improvement suggestions
The author explores how unbiased decision-making is ensured under the.