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The recent conclusion of the Investment Cooperation and Facilitation Treaty (ICFT) between Brazil and India is an important moment in investment treaty making, with the new deal combining aspects of Brazil’s Cooperation and Facilitation Investment Agreements (CFIAs) and India’s 2015 model BIT. This ITN Insight breaks down the various elements of the ICFT, examining its approach, design and content relative to the Brazilian and Indian models. The author, Martin Dietrich Brauch, does so by undertaking a detailed analysis of the agreement’s preambular language, scope, definitions, investment protection and dispute-related provisions, institutional governance provisions, and exceptions. He also summarizes the new treaty’s key innovations, which could help inform future negotiating efforts.
India and Brazil flags together realtions textile cloth fabric texture
India and Brazil flags together realtions textile cloth fabric texture
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.
Brazil flag in hand with sky and sun
The problems of traditional BITs and the growing number of ISDS cases were among factors that led Brazil to develop the CIFA model, aimed at promoting and facilitating high-quality and productive foreign investment.
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 (BIT).
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 (BIT). 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 […]
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 […]
Though investment protection and liberalization have been a regular feature of IIAs, these have to be complemented with promotion and facilitation at the local level to ensure that host economies are marketed well enough to attract investments and that regulatory and administrative barriers faced by investors in their day-to-day operations are addressed and minimized. To ensure that their economies are competitive, countries have been autonomously developing and implementing facilitation measures locally for some time. However, there currently is no universally accepted definition of what investment facilitation entails, and no multilateral framework governing investment facilitation has taken shape. Despite these difficulties, investment facilitation is increasingly emerging as an essential area for international cooperation and policy-making. Accordingly, this article surveys recent developments in investment facilitation policy-making at the international level. After giving a brief history of efforts in investment facilitation rulemaking at the bilateral and regional levels, it concludes with a section that recalls efforts by G20 members to create rules on investment facilitation and provides an overview of the recently concluded negotiations among a group of WTO members on an investment facilitation agreement.
Innovation and Local Production Under the AfCFTA Protocol on Intellectual Property Rights: A strategic approach to intellectual property rights
The member states of the African Continental Free Trade Area (AfCFTA) adopted the Protocol on Intellectual Property Rights in February 2023 during the 36th African Union Summit in Addis Ababa, Ethiopia. One of the primary objectives, consistent with the aspirations of Agenda 2063, is to promote inclusive growth and sustainable development, underpinned by a continental market that facilitates the free movement of persons, capital, goods, and services. The protocol seeks to promote access to knowledge and technology transfer by emphasizing cooperation and the importance of using the flexibilities provided in existing international intellectual property rights regimes. Promoting local production under the AfCFTA Protocol offers a route toward more self-reliant, sustainable, and resilient health systems. However, measures promoting local production are often limited by trade and investment treaties, which also protect intellectual property rights. This article is meant to introduce policy measures states can take without foregoing their commitments under those treaties.
The Protocol on Investment to the Agreement Establishing the African Continental Free Trade Area: What’s in it and what’s next for the Continent?
Introduction The Protocol on Investment (POI or Protocol) to the Agreement Establishing the African Continental Free Trade Area (AfCFTA) has been adopted by African Heads of State on February 18/19, […]
1. Introduction India’s approach toward the negotiation of international investment agreements (IIAs) has recently been subjected to significant scrutiny. Despite signing its first BIT in 1994, with the United Kingdom, […]
“Nothing is agreed until everything is agreed”: The Code of Conduct and Reflections on the 44th Session of the UNCITRAL Working Group III
This piece looks at the negotiations at the UNCITRAL Working Group III on Reform of ISDS dealing with the controversial provision on the regulation of double hatting by arbitrators. Through a detailed overview of various countries’ negotiation dynamics, positions, tactics, and the role of the WG Chairman at display during the 44th session, the author evaluates which negotiation tools may or may not bear fruit in the context of complex multiparty negotiations, such as those at the Working Group III.
Bolivia found liable for violating the FET standard and the prohibition to adopt arbitrary measures when implementing nationalization on the pension system
Banco Bilbao Vizcaya Argentaria S.A. v. Bolivia, ICSID Case No. ARB(AF)/18/5
Cairn v. India Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India, PCA Case No. 2016-7
Incorporating corporate social responsibility within investment treaty law and arbitral practice: Progress or fantasy remedy?
Recently, references to corporate social responsibility (CSR) have been included in investment treaties as a way to address some of the criticisms levelled at the investment protection regime. This article gives an overview of these attempts and the limitations of this approach. It concludes by arguing that the inclusion of CSR in investment treaties primarily serves to legitimate the regime.
This article provides an overview of Ecuador’s approach to foreign investment policy over the past decade, which has been subject to significant changes. It also reviews recent constitutional
developments that may allow Ecuador to develop a more coherent approach toward
new investment treaties and trade agreements.
Morocco has recently undertaken a review of its treaty program, establishing a working group 2015 with the mandate to elaborate a new model BIT, which included a consultation process involving various stakeholders. The model BIT was published by Morocco in December 2019. The authors of this piece, Hamed El-Kady and Yvan Rwananga review selected core provisions this new model BIT that will likely serve as a basis for Morocco to (re)negotiate BITs and other regional investment agreements. Notably, the model includes an emphasis on sustainable development in the preamble and several substantive provisions.
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, PCA Case No. 2018-37
From October 14 to 18, 2019, negotiators will gather in Vienna for the next session of the UNCITRAL Working Group III on ISDS reform, where they will move from considering concerns with the current system to assessing possible solutions. In this ITN 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 ICSID’s rules has been taking place in parallel to the UNCITRAL Working Group III deliberations on ISDS 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 the UNCITRAL Working Group III process on multilateral ISDS 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, ICSID 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 70 WTO members 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 ECT’s existing formulation of FET 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, ICSID 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
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.
CSR 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, ICC CASE NO. 20355/MCP
The 2018 Draft Dutch Model BIT: 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, PCA 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, ICSID 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-EU Investment Protection: Up the Creek Without a Paddle
The Recent Argentina–Qatar BIT and 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 the OECD tackles 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 the WTO General 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 (SCC 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; new SCC rules include appendix on investment treaty disputes On January 1, 2017, the Investment Arbitration Rules of the Singapore Investment Arbitration Centre […]
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 […]
ICSID 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 […]
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 After rendering separate decisions on jurisdiction—one for the case brought […]
Only a Brief Pause for Breath: The Judgment of the German Federal Constitutional Court on CETA, 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
UNCTAD’s International Investment Agreements Conference 2016: Taking IIA 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 RCEP
Brazil and India initial Bilateral Investment Treaty (BIT); text yet to be published
CETA signed; Canada and European Union to “work expeditiously” on creating a Multilateral Investment Court