Recent Development’s in Investor-State Dispute Settlement United Nations Conference on Trade and Development, April 2014
UNCTAD’s annual review of investor-State dispute settlement cases, part of the IIA Issues Notes series, provides up-to-date statistical data on treaty-based ISDS cases as well as an overview of arbitral decisions issued in 2013. According to the note, 57 new cases were initiated in 2013, just below the record number of new claims recorded in 2012. The total number of known treaty-based cases reached 568. The overwhelming majority of these cases (85 per cent) have been brought by investors from developed countries. Together, claimants from the EU and the United States account for 75 per cent of all disputes. In 2013, investors challenged a broad range of government measures, including changes related to investment incentive schemes (such as 13 cases against Czech Republic and Spain regarding the changes in the renewable-energy policies); alleged breaches of contracts; alleged direct or de facto expropriation; revocation of licenses or permits; regulation of energy tariffs; allegedly wrongful criminal prosecution; land zoning decisions; invalidation of patents; and legislation relating to sovereign bonds. ISDS tribunals issued 37 known decisions last year, 23 of which are in the public domain. Of these, approximately 43 per cent were decided in favour of the State and 31 per cent in favour of the investor. Approximately 26 per cent of cases were settled. Finally, the growing number of ISDS cases and the broad range of policy issues they raise have turned ISDS into a “hot topic”. The public discourse about the usefulness and legitimacy of ISDS continues to gain momentum, especially in the context of important IIA negotiations that are currently taking place. The note is available here: http://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=718
Reform of Investor-State Dispute Settlement: In Search of a Roadmap Transnational Dispute Management, 2014
This TDM Special Issue features over 65 papers that explore reforms to investor-state dispute settlement. Divided into eight sections, chapter one sets the stage for reforms; chapter two focuses on methodological approaches to reform of the ISDS system; chapter three examines regional experiences with ISDS; chapter four discusses strengthening the role of states, both in interpreting existing treaty language and through revising specific treaty text or negotiating new treaties; chapter five focuses on reform of ICSID as the cornerstone of the current ISDS system; chapter six discusses the development of an appeals mechanism, whether treaty-based or through a multilateral facility such as an appeal facility proposed by ICSID; chapter seven addresses momentum in the push for expanded investor-State mediation; and chapter eight discusses the role that arbitral tribunals can play to contribute to a reform of the system from within. The series is available here: http://www.transnational-dispute-management.com/journal-browse-issues-toc.asp?key=52
Understanding Agricultural Investment Chains: Lessons to Improve Governance Lorenzo Cotula and Emma Blackmore, International Institute for Environment and Development, March 2014
Drawing on 10 case studies of recent large-scale land deals, this report aims to improve understanding of the investment chains that underpin the deals, and to identify pressure points for effective public action to ensure that investments respond to local and national development agendas and promote inclusive sustainable development. The report argues that properly implementing the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security is an important step in that direction.
A Response to the European Commission’s December 2013 Document “Investment Provisions in the EU-Canada Free Trade Agreement (CETA)” Nathalie Bernasconi-Osterwalder, Howard Mann, International Institute for Sustainable Development, March 2014
On December 3, 2013, the European Commission issued a document concerning the investment provisions in the EU-Canada free trade agreement (CETA) explaining how the CETA protects the right to regulate. In this paper IISD examines the assertions made by the European Commission against the actual text of the draft CETA Investment Chapter dated November 21, 2013 on the substantive provisions and the draft investor-state dispute settlement provisions as of February 4, 2014. In the end, the authors conclude that the actual draft legal texts in the public domain fail to meet a number of the European Commission’s stated objectives.
Investment Treaty Forum: 22nd Public Conference – Investor-State Arbitration and Beyond, British Institute of International and Comparative Law, London, UK, http://www.biicl.org/events/view/-/id/779/
Stepping Away from the State: Universality and Cosmopolitanism in International and Comparative Law, Cambridge Journal of International and Comparative Law, Cambridge, UK, http://cjicl.org.uk/conference-registration/
International Arbitration Symposium, Center for International Legal Studies, Salzburg, Austria, http://www.cils.org/home/conference.php?ConferenceID=269&s_ConferenceLocale=&
Extractive Industries and Sustainable Development Executive Training, Vale Columbia Center on Sustainable International Investment, New York, United States, http://www.vcc.columbia.edu/content/extractive-industries-and-sustainable-development-executive-training
16 – 20
Fiftieth Anniversary of UNCTAD, UNCTAD, Geneva, Switzerland, http://unctad.org/en/Pages/MeetingDetails.aspx?meetingid=437
World Investment Forum 2014: Investing in Sustainable Development, UNCTAD, Geneva, Switzerland