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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.
Brazilian Businessman holding business card with Brazil Flag. International cooperation, investments, business opportunites concept.
Brazil flag in hand with sky and sun
The problems of traditional BITs and the growing number ofcases were among factors that led Brazil to develop the CIFA model, aimed at promoting and facilitating high-quality and productive foreign investment.
Brasilia, Federal District, Brazil – April 18, 2003: Government building that helds Brazilian Ministry of External Relations – Itamaraty Palace – at night.
During the 10th Annual Forum of Developing Country Investment Negotiators, held in Colombo, Sri Lanka, from November 7 to 10, representatives from Brazil and India announced that they had recently initialled a bilateral investment agreement ().
The Brazilian Agreement on Cooperation and Facilitation of Investments (ACFI): A New Formula for International Investment Agreements?
Since the signing of the first Agreement on Cooperation and Facilitation of Investments (ACFI) by Brazil, in March 2015, English translations of the document and analyses of its innovative aspects have been published. The hidden question is: to what extent do Brazil’s ACFIs innovate in the regulation of foreign investments?
The Brazil–Mozambique and Brazil–Angola Cooperation and Investment Facilitation Agreements (CIFAs): A Descriptive Overview
Brazil and Mozambique signed on March 30, 2015 the first Cooperation and Investment Facilitation Agreement (CIFA) based on Brazil’s new model bilateral investment treaty (). The second was signed on April 1, 2015 between Brazil and Angola. Unlike traditional BITs, which are geared towards investor protection, the CIFAs focus primarily on cooperation and investment facilitation. They promote amicable ways to settle disputes and propose state–state dispute settlement as a backup; notably, they do not include provisions on investor–state arbitration.
As an arbitrator and one who does not have any connection with the Brazilian legal system, I can more particularly identify with the views of Weiler and de Oliveira. I can understand the confidence that Brazilians may have in their own courts when faced with the issue of resolving international investment disputes and the question […]
By Elizabeth Whitsitt and Damon Vis-Dunbar30 November 2008 In 1991, Brazil began one of the world’s largest privatization programs, selling more than US$100 billion worth of assets. Seventeen years later and with a Gross Domestic Product (GDP) that ranks tenth in the world, Brazil is an industrial power that, according to the World Bank, is […]
As claimants lacked a protected investment and could not import consent to arbitration via MFN, UNCITRAL tribunal dismisses case against Mauritius on jurisdictional grounds
Professor Christian Doutremepuich and Antoine Doutremepuich v. Republic of Mauritius,Case No. 2018-37
From October 14 to 18, 2019, negotiators will gather in Vienna for the next session of theWorking Group III on reform, where they will move from considering concerns with the current system to assessing possible solutions. In this Insight, Jane Kelsey discusses various examples of how some countries have tested out alternatives to ISDS, such as state–state arbitration, alternative dispute resolution, domestic legislation and enforcement, and the exhaustion of domestic remedies. For each ISDS alternative, she examines what benefits and challenges arose, and how the lessons learned can help inform the next phase of UNCITRAL deliberations.
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.
UNCITRAL secretariat publishes documents to be considered at October 2019 session of Working Group III on ISDS reform
Delegates to theWorking Group III process on multilateral reform will meet again in Vienna during the week of October 14–18, 2019.
NextEra Energy Global Holdings B.V and NextEra Energy Spain Holdings B.V v. Kingdom of Spain,Case No. ARB/14/11
Investment Facilitation at the WTO: An attempt to bring a controversial issue into an organization in crisis
The structured discussions on investment facilitation (IF) among 70members are now 18 months old. Participants are wrapping up their latest phase of work: considering examples of different issues and elements that could form the basis of a multilateral IF framework. The authors examine the history of investment discussions at the WTO and review how international investment governance in other forums has evolved in recent years. They examine what challenges can emerge in crafting IF disciplines, especially if these are binding, and the importance of considering which forums are most appropriate for IF-related discussions.
The Energy Charter Treaty modernization negotiations are due to begin later this year and a set of topics for parties to consider has already been announced. This piece examines the prospects for updating the’s existing formulation of and analyzes how this standard has been interpreted in past arbitrations involving renewable energy disputes. The author argues in favour of including a requirement of investor due diligence as an attempt to help ensure that investors anticipate possible risks that may emerge from changes to a state’s regulatory framework.
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
Multilateral ISDS Reform Is Desirable: What happened at the UNCITRAL meeting in Vienna and how to prepare for April 2019 in New York
Working Group III has decided that multilateral reform is desirable to address various concerns regarding . 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.
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?
Investment facilitation is a vague and broad term encompassing administrative simplification for investors. Certain proposals submitted to global forums also include mechanisms giving foreign investors an opportunity to participate in the design process of new regulations. Would multilateral rules on investment facilitation pose risks to domestic regulatory processes?
Cypriot investor awarded EUR 18 million for expropriation and violation of national treatment and FET
OLIN HOLDINGS LIMITED V. STATE OF LIBYA,CASE NO. 20355/MCP
The 2018 Draft Dutch Model: A critical assessment, by Bart-Jaap Verbeek and Roeline Knottnerus
The Case Against Third-Party Funding in Investment Arbitration, by Frank J. Garcia
Making the Right to Regulate in Investment Law and Policy Work for Development: Reflections from the South African and Brazilian experiences, by Fabio Morosini
Conflicts between Latin American Countries and Transnational Corporations: The challenges of the region in the face of asymmetrical investment treaties, by Jorge Marchini, Josefina Morales and Gabriela Roffinelli
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
Aerial view of Favela da Rocinha, Biggest Slum in Brazil on the Mountain in Rio de Janeiro, and Skyline of the City behind.
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
Expansion of the Energy Charter to Africa and Asia: Undoing Reform in International Investment Law?
Another Conflict of Norms: How BEPS and International Taxation Relate to Investment Treaties
Brazil’s Cooperation and Facilitation Investment Agreements (CFIA) and Recent Developments
Intra-Investment Protection: Up the Creek Without a Paddle
The Recent Argentina–Qatarand the Challenges of Investment Negotiations
Sustainability Toolkit for Trade Negotiators: Tapping the Potential of Trade and Investment Agreements for Achieving Environmental Goals
The Base Erosion and Profit Shifting (BEPS) reform project led by thetackles corporate measures aimed at shifting profits to no- or low-tax destinations. But investment law can hinder the implementation of much-needed reform in international taxation.
A meeting of theGeneral Council was suspended on May 10, 2017 after India objected to the adoption of the proposed agenda, which included a “trade and investment facilitation” item.
SCC tribunal dismisses claims brought by British company and its shareholders against the Czech Republic
Anglia Auto Accessories Ltd. v. Czech Republic (Case No. V 2014/181) and Ivan Peter Busta and James Peter Busta v. Czech Republic (SCC Case No. V 2015/014)
SIAC Investment Arbitration Rules come into effect; newrules include appendix on investment treaty disputes On January 1, 2017, the Investment Arbitration Rules of the Singapore Investment Arbitration Centre (SIAC) came into effect. Among the highlights are provisions on early dismissal of claims and defences, submissions by non-disputing parties and mandatory disclosure of third-party […]
On December 13 and 14, 2016, the European Commission and the Canadian Government co-hosted exploratory discussions on establishing a multilateral investment court. Government representatives from several countries attended the closed-door meeting in Geneva. Upon concluding, the two hosts had vowed to “work expeditiously” to create a permanent investment court, building on the mechanism included in the agreement. The goal of […]
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 […]
Only a Brief Pause for Breath: The Judgment of the German Federal Constitutional Court on, by Jelena Bäumler
India’s Joint Interpretive Statement for BITs: An Attempt to Slay the Ghosts of the Past, by Sarthak Malhotra
Special and Differential Treatment in International Investment Agreements, by Riham Marii
’s International Investment Agreements Conference 2016: Taking Reform to the Next Level, by James Zhan and Diana Rosert
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
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
UNASUR Centre for the Settlement of Investment Disputes: Comments on the Draft Constitutive Agreement
The future operation of the investment dispute settlement facility of the Union of South American Nations is likely to generate scepticism, as it could undermine international standards in favour of regional parameters and lead to increased instability in the region. Alternatively, it could enhance the legitimacy and popularity ofmechanisms in UNASUR member states. What are the procedural and substantive novelties contained in the Draft Constitutive Agreement?
The long-expected final award has been rendered in the high-profile case initiated by tobacco giant Philip Morris in early 2010 against Uruguay over its tobacco control measures.
Corporate restructuring and abuse of rights: PCA tribunal deems Philip Morris’s claims against Australia’s tobacco plain packaging rules inadmissible
Philip Morris Asia Limited v. The Commonwealth of Australia,Case No. 2012-12
ICSID tribunal upholds Panama’s abuse of process objection; Transglobal to pay arbitration costs and most of Panama’s legal expenses
In the proceeding brought by Transglobal Green Energy, LLC (a U.S.-based company) and Transglobal Green Panama S.A. (a Panama-based company) against Panama under the United States–Panama bilateral investment treaty (), an tribunal accepted Panama’s abuse of process objection.
Venezuela ordered to pay US$1.202 billion plus interest to Canadian mining company Crystallex for FET breach and expropriation
In a 273-page award dated April 4, 2016, a tribunal at the Additional Facility (AF) of the International Centre for Settlement of Investment Disputes () ordered Venezuela to pay US$1.202 billion plus interest to Canadian company Crystallex International Corporation (Crystallex).
Tribunal Awards Damages for Venezuela’s Indirect Expropriation of Steel Industry Investment
The first ICSID case against Guinea is dismissed for lack of Jurisdiction
Slovenia is condemned to pay 20 million euros in damagesand US$10 million in costs to Croatian National Electric Company
The only known investment treaty arbitration against Equatorial Guinea fails on jurisdictional grounds
ICSID tribunal orders Zimbabwe to return expropriated farms
Slovenia is condemned to pay €20 million in damages and US$10 million in costs to Croatian national electric company
An award rendered on December 17, 2015 by an arbitral tribunal constituted under the auspices of the International Centre for Settlement of Investment Disputes () added a new—and apparently final—chapter to a nearly 20-year-old conflict between the governments of Croatia and Slovenia over the supply of electricity generated by the Krško Nuclear Power Plant (Krško NPP), located in Slovenia.
Trans-Pacific Partnership agreement signed in Auckland; UN independent expert calls on states to safeguard regulatory space On February 4, 2016, trade ministers from twelve Pacific Rim nations met in Auckland, New Zealand, to sign the Trans-Pacific Partnership (TPP) agreement. On the eve of the meeting, UN Independent Expert on the promotion of a democratic and […]
On January 19, 2016, experts from the Union of South American Nations (UNASUR) met in Montevideo, Uruguay, to finalize agreements regarding the proposed regional centre for the settlement of investment disputes.
tribunal dismisses final claim for compensation in relation to Hungary’s 2008 termination of power purchase agreement Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/1 Matthew Levine [*] A Belgian energy company—Electrabel S.A. (Electrabel)—has failed in its final claim under the Energy Charter Treaty ( ). An International Centre for Settlement of Investment Disputes (ICSID) […]
ICSID tribunal declines jurisdiction in case against Macedonia and orders investor to reimburse 80% of Macedonia’s legal fees and expenses
Guardian Fiduciary Trust Ltd, f/k/a Capital Conservator Savings & Loan Ltd v. Former Yugoslav Republic of Macedonia,Case No. ARB/12/31