June 24, 2021 – Investment Treaty News

ITN June 2021

Virtual negotiations: Lessons from a survey of JSI and UNCITRAL negotiators. By Taylor St John and Zoe Williams

An interview with Nicolás Perrone on Investment Treaties and the Legal Imagination: How Foreign Investors Play By Their Own Rules. By Nicolás M Perrone

Stabilization clauses and implications for human rights and gender equality. By Sangwani Patrick Ng’ambi

Energy Charter Treaty reform: Why withdrawal is an option. By Nathalie Bernasconi-Osterwalder, Lukas Schaugg, and Amandine Van den Berghe

Virtual Negotiations: Lessons from a survey of JSI and UNCITRAL negotiators

The COVID-19 pandemic forced international negotiations, including those related to investment such as the Joint Statement Initiative (JSI) on investment facilitation by a group of WTO member states, and the UNCITRAL WGIII, to move online. Virtual negotiations create new challenges for officials, as well as new opportunities. This article discusses the results of a survey of delegates involved in the JSI and UNCITRAL processes.

An Interview with Nicolás Perrone on Investment Treaties and the Legal Imagination: How Foreign Investors Play By Their Own Rules

This article is an interview with Nicolás Perrone on his new book, Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules.

Stabilization Clauses and Implications for Human Rights and Gender Equality

Stabilization clauses in investment contracts may make it more difficult to pass laws aimed at improving gender equality. This article discusses the potential relationship between investment contracts and gender, as well as guidance from international organizations that seeks to help states avoid contracts which constrain their ability to regulate in the public interest.

Energy Charter Treaty Reform: Why withdrawal is an option

The Energy Charter Treaty (ECT) faces criticism for its outdated investment provisions and the threats it poses to the energy transition. This article examines one option for states to solve this problem—withdrawal from the treaty—and what this could mean for the EU and its member states, along with its impact on the energy transition in general.

Progress Is Made in Structured Discussions on Investment Facilitation

WTO members involved in the “structured discussions” on investment facilitation met on several occasions during the first quarter of 2021. These meetings culminated with the circulation of the “Easter Text,” an important milestone in the talks that brings together several earlier drafts and texts in one document. This text will serve as the main basis for drafting any ultimate agreement on investment facilitation.

UNCITRAL WGIII Reconvenes to Discuss Work and Resourcing Plan; Civil society observers raise concerns

The UNCITRAL WGIII convened, with delegates able to attend virtually or in-person, from May 4–5, 2021 for the resumption of its 40th session. On the agenda was consideration of the draft work and resourcing plan.

Outlook for the EU-China Comprehensive Agreement on Investment Unclear, as EU Parliament Votes to Suspend Ratification Efforts

On May 20, 2021, the European Parliament voted to suspend ratification efforts of the “in principle” Comprehensive Agreement on Investment (CAI) with China.

European Energy Disputes Update

As we reported, German-owned energy company Uniper put the Netherlands on notice of an investment dispute last year, following the announcement of the country’s plan to phase out coal-burning power plants by 2030. Alongside RWE, another German energy company, Uniper made good on that threat earlier this year; both companies initiated ICSID claims lodged under the ECT this spring.

Canada Publishes 2021 Model Foreign Investment Promotion and Protection Agreement

On May 13, 2021, Canada announced that it had finalized its 2021 Model Foreign Investment Promotion and Protection Agreement (FIPA), which will replace the 2014 version. According to Global Affairs Canada, the agreement is the result of “extensive public consultations initiated in 2018 with a broad range of stakeholders, including from civil society and labour unions, legal experts, representatives of all sizes of Canadian business, representatives of provinces and territories, and Indigenous partners.”

Tribunal rules in favour of claimants in another Spanish solar dispute; Dissenting arbitrator argues that tribunal nonetheless over-emphasized Spain’s “right to regulate”

In another renewables case against Spain, an ICSID tribunal awarded over EUR 28 million to two subsidiaries of the German company RWE (jointly, RWE).

International Obligations Governing the Activities of Export Credit Agencies in Connection With the Continued Financing of Fossil Fuel-Related Projects and Activities

This legal opinion, commissioned by Oil Change International, lays out the responsibilities of export credit agencies and governments regarding the financing of fossil fuel projects.

Do Investor-State Dispute Settlement Cases Influence Domestic Environmental Regulation? The Role of Respondent State Bureaucratic Capacity

By Tarald Laudal Berge and Axel Berger, Journal of International Dispute Settlement (March 2021)

Quarterly Journal (June 2021)