Reform

Third-Party Funding and the Objectives of Investment Treaties: Friends or foes?

This piece examines recent trends in the use of third-party funding (TPF) in treaty-based ISDS and 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 ICSID arbitration rules and to consider multilateral reform of ISDS at UNCITRAL. 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.

Spain’s Renewable Energy Saga: Lessons for international investment law and sustainable development

Spain has faced approximately 40 arbitrations since it made the decision in 2010 to rescind or revise various regulatory measures aimed at drawing in greater investments into renewable energy projects. This article examines the awards issued in four of those cases, looking in particular at how the tribunals interpreted and applied the FET standard. The author looks at the potential problems that can emerge when states are unsure of how any given tribunal may interpret FET or other key standards and presents some potential solutions.

Phase 2 of the UNCITRAL ISDS Review: Why “other matters” really matter

The April 2019 deliberations on multilateral ISDS reform at UNCITRAL Working Group III were due to tackle a series of questions that emerged in Phase 2 of the process. This piece breaks down why the scope of these discussions should be expanded to include important concerns raised by developing countries, and describes three core issues that must not be ignored. These involve the right to participation by affected parties; the rule of law and domestic courts’ jurisdiction; and the chilling of sovereign states’ authority and responsibility to govern.

News  |  April 23, 2019

UNCITRAL Working Group III holds New York session

Delegates had a new round of deliberations for multilateral reform of ISDS at UNCITRAL from April 1 to 5. The meeting of Working Group III, which is tasked with this process, was held in New York.

Multilateral ISDS Reform Is Desirable: What happened at the UNCITRAL meeting in Vienna and how to prepare for April 2019 in New York

UNCITRAL Working Group III has decided that multilateral reform is desirable to address various concerns regarding ISDS. Its next session will identify other concerns that may have been missed and prepare a work plan to develop solutions. This article reviews the UNCITRAL process so far and helps governments prepare for the upcoming session.

Reforming Investment Treaties: Does treaty design matter?

The backlash against investment arbitration has led to a wave of investment law reform. Approaches include creating obligations relating to investor conduct, clarifying existing disciplines, safeguarding policy space and revising ISDS mechanisms. This piece investigates the link between investment treaty design and the risk of arbitration claims.

An Interview with Luis Guillermo Vélez – Director-General of Colombia’s National Agency for the Legal Defense of the State

On the heels of our 11th Annual Forum of Developing Country Investment Negotiators, we interviewed Luis Guillermo Vélez, Director-General of Colombia’s National Agency for the Legal Defense of the State (ANDJE), to capture his experiences on investment negotiations and disputes, his expectations for investment reform processes and views on the value of the Forum.

Rethinking Investment-Related Dispute Settlement

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 […]

Experts at UNCTAD Meeting Give Shape to IIA Reform Options

More than 300 experts and delegates from member states, international organizations, NGOs, the private sector and academia attended the United Nations Conference on Trade and Development (UNCTAD) Meeting on the Transformation of the International Investment Agreement (IIA) Regime from February 25 to 27, 2015 in Geneva. Working in breakout and plenary sessions, the experts explored […]