ITN

ITN  |  March 13, 2017

Resources and Events

Resources Treaty Shopping in International Investment Law By Jorun Baumgartner, Published by Oxford University Press, February 2017 The book examines the practice of treaty shopping—the strategic change of nationality or the strategic invocation of another nationality with the aim of accessing another investment treaty for purposes of investment arbitration—to investigate the challenges this practice poses […]

ITN  |  December 12, 2016

News in Brief

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

ITN  |  December 12, 2016

Awards and Decisions

Venezuela to Pay Us$1 Billion For Expropriating Canadian Mining Company’s Investment

ICSID Tribunal dismisses MFN Clause in WTO GATS as a means of importing Senegal’s consent to arbitration from third party BIT

PCA 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

ITN  |  May 16, 2016

News in Brief

US$50 billion awards against Russia in Yukos Cases are set aside by Dutch Court

TTIP draft to be prepared by July; ISDS being built based on both EU and US proposals

China – US BIT: ISDS to be included; ongoing negotiations on negative lists

Three mining disputes: The first investment disputes against Colombia come to light

Canada-European Union CETA re-concluded in February to incorporate the EU ICS proposal

Second ICSID claim filed against Uruguay; Philip Morris decision still pending

Singapore International Arbitration centre releases investment arbitration rules

ITN  |  May 16, 2016

Awards and Decisions

ICSID 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

ITN  |  May 16, 2016

Resources and Events

UNCTAD Global Investment Trends Monitor No. 23

Switzerland’s Investment Treaties: Time for a change

Investment Court System Put To The Test: New EU proposal will perpetuate investors’ attacks on health and environment

IIA Issues Note: Taking stock of IIA reform

Alternative Visions of the International Law on Foreign Investment: Essays in honour of Muthucumaraswamy Sornarajah

Rethinking Bilateral Investment Treaties: Critical issues and policy choices

The WTO and International Investment Law: Converging systems

The Trans-Pacific Partnership, Part I: A deal too far

Sustainability Impacts of Chinese Outward Direct Investment: A review of the literature

Shifting Paradigms in International Investment Law: More balanced, less isolated, increasingly diversified

ITN  |  February 29, 2016

News in Brief

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 […]

ITN  |  February 29, 2016

Awards and Decisions

ICSID 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 (ECT). An International Centre for Settlement of Investment Disputes (ICSID) […]

ITN  |  February 29, 2016

Resources and Events

Resources published between October 2015 and March 2016; events between February and April 2016

ITN  |  November 26, 2015

Resources and Events

Resources published between July and October 2015; events between November 2015 and January 2016

ITN  |  August 4, 2015

Resources and Events

Resources The Origins of International Investment Law: Empire, environment and the safeguarding of capital By Kate Miles, Published by Cambridge University Press, July 2015 This book examines the historical evolution of international investment law (IIL), from its origins in the commercial and political expansionism of dominant states during the 17th to early 20th centuries to the continued […]

ITN  |  May 21, 2015

News in Brief

European Commission addresses TTIP concerns at European Parliament meeting At a March 18, 2015 meeting at the European Parliament’s International Trade Committee, EU Trade Commissioner Cecilia Malmström presented four “preliminary ideas” to address public concerns about investment in the Transatlantic Trade and Investment Partnership (TTIP) in negotiation between the European Union and the United States. […]

ITN  |  May 21, 2015

Awards and Decisions

UNCITRAL tribunal finds Canada’s environmental assessment breached international minimum standard of treatment and national treatment standard William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL Marquita Davis [*] Background In an award dated March 17, 2015, a majority of Bruno Simma (chair) and Bryan […]

ITN  |  May 21, 2015

Resources and Events

Resources IISD Handbook on Mining Contract Negotiations for Developing Countries, Volume I: Preparing for Success By Howard Mann, Published by the International Institute for Sustainable Development, April 2015 Recognizing the need for a tool to help guide developing countries through the process of negotiating investment contracts with mining companies, this handbook seeks to assist government […]

ITN  |  February 19, 2015

Awards and Decisions

Although finding largely in favour of Venezuela, ICSID tribunal awards US$1.4 billion to Exxon-Mobil for 2007 expropriations Venezuela Holdings, B.V., Mobil Cerro Negro Holding, Ltd., Mobil Venezolana de Petroleos Holdings, Inc., Mobil Cerro Negro, Ltd., and Mobil Venezolana de Petroleos, Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27 Matthew Levine An arbitration at […]

ITN  |  February 19, 2015

News in Brief

European Commission consultation shows public rejection of investor–state dispute settlement On January 13, the European Commission published a report and an accompanying memo analyzing the results of its consultation on investment protection and investor–state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP) under negotiation between the European Union and the United States. […]

ITN  |  February 19, 2015

Resources and Events

Resources IISD Best Practices Series: Performance Requirements in Investment Treaties By Suzy H. Nikièma, published by the International Institute for Sustainable Development, December 2014 The paper surveys the types of performance requirements (PRs) in use around the world, and briefly describes the WTO’s Agreement on Trade-Related Investment Measures (TRIMs). The study focuses on the meaning […]

ITN  |  November 19, 2014

Awards and Decisions

Yukos shareholders awarded record damages in two separate proceedings against Russia Martin Dietrich Brauch In two separate proceedings, shareholders of the defunct Russian oil and gas company OAO Neftyanaya Kompaniya Yukos (Yukos) were awarded over US$52 billion in compensation from Russia for expropriation and due process of law violations. On July 18, 2014, an UNCITRAL […]

ITN  |  November 19, 2014

News in Brief

New European Commissioners suggest that ISDS may be shut out of the TTIP The new President of the European Commission, Jean-Claude Juncker, said on October 22, 2014 that there is “no obligation” to include investor-state dispute settlement (ISDS) provisions in the trade and investment agreement under negotiation between the European Union and the United States, […]

ITN  |  November 19, 2014

UNCTAD Multi-Stakeholder Meeting Seeks Reform of Investment Treaties and Investment Dispute Settlement

More than 50 high-level representatives from governments, including ministers, as well as senior business representatives, international and civil society organizations convened in Geneva, Switzerland on October 16, 2014, to address the challenges arising from international investment agreements (IIAs) and to consider ways to reform the IIA regime.[1] The conference was held during the United Nations […]

ITN  |  November 19, 2014

Resources and Events

Resources The IISD Guide to Negotiating Investment Contracts for Farmland and Water By Carin Smaller, published by the International Institute for Sustainable Development, November 2014 The IISD Guide to Negotiating Investment Contracts for Farmland and Water is a legal and policy tool for governments and communities that are involved in negotiating investment contracts with foreign […]

In Accordance with Which Host State Laws? Restoring the ‘Defence’ of Investor Illegality in Investment Arbitration

Investment treaties are often criticised for being too ‘investor-friendly.’ With this in mind, it becomes important to clarify the mechanisms available to host states to defend against investment treaty claims. One such mechanism is found in the provisions included in many investment treaties, to the effect that investors must comply with host state law in order for their investment to enjoy treaty protection.

ITN  |  September 4, 2014

Yukos v. Russia: Issues and legal reasoning behind US$50 billion awards

Download PDF – 682 KB Summarized in this article: Hulley Enterprises Limited (Cyprus) v. The Russian Federation (PCA Case No. AA 226) Yukos Universal Limited (Isle of Man) v. The Russian Federation (PCA Case No. AA 227) Veteran Petroleum Limited (Cyprus) v. The Russian Federation (PCA Case No. AA 228) In three awards dated 18 […]

ITN  |  August 13, 2014

Resources and Events

Resources World Investment Report 2014 United Nations Conference on Trade and Sustainable Development, June 2014 UNCTAD’s World Investment Report is an annual publication that focuses on trends in foreign direct investment (FDI) worldwide, at the regional and country levels and emerging measures to improve its contribution to development. The 2014 report shows that FDI inflows […]

ITN  |  August 13, 2014

News in Brief

Opposition to investor-state arbitration in TTIP grows The European Commission is being asked why investor-state arbitration provisions should be included in the Transatlantic Trade and Investment Partnership (TTIP), which has been under negotiation between the United States and European Union since July 2013. On July 11th, Germany’s upper parliament passed a resolution that highlights the […]

ITN  |  August 13, 2014

Awards and Decisions

Majority clears Peru of any wrongdoing in relation to close down of French-owned bank; dissenting arbitrator says that majority misconstrued facts and law Renée Rose Levy de Levi v. Republic of Peru, ICSID Case No. ARB/10/17, Award and Dissenting Opinion Diana Rosert A majority has rejected a claim by Renée Rose Levy, a French investor in […]

Risky Business or Risky Politics: What Explains Investor-State Disputes?

While there is a fair amount of scholarly work on the determinants of expropriation, we know less about the political and economic conditions under which the broader category of investor-state disputes take place. This article provides a statistical analysis of political and economic factors that contribute to the likelihood of an investor-state dispute; and a qualitative coding of measures which have resulted in arbitration cases.

Aron Broches and the Withdrawal of Unilateral Offers of Consent to Investor-State Arbitration

Several States have terminated bilateral investment treaties as they came up for renewal. The effectiveness of BIT termination, however, is limited by the “survival clauses” that are frequently included in IIAs. These provisions state that even after the treaty is terminated it will continue to apply to investments that were made while the treaty was in force for an additional 10 or 15 years.

ITN  |  May 14, 2014

Resources and Events

Resources 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 […]

ITN  |  May 14, 2014

Awards and Decisions

ICSID tribunal finds jurisdiction over mining license dispute involving British and Australian companies in Indonesia Churchill Mining Plc v. Republic of Indonesia ICSID Case No. & Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and ARB/12/14 and 12/40 Matthew A J Levine An ICSID tribunal has accepted jurisdiction over the consolidated […]

ITN  |  May 14, 2014

News in Brief

UNCITRAL launches new transparency registry The UNCITRAL Secretariat has established a transparency registry[1] that will function as a repository for the publication of information and documents in treaty-based investor-State arbitration. This follows the entry into force of the UNCITRAL Rules on Transparency in treaty-based investor-State arbitration on April 1, 2014.[2] The registry will contain information […]

ITN  |  January 19, 2014

News in Brief

Australia changes position on investor-state arbitration in free trade agreement with Korea The Australian government has agreed to investor-state arbitration in the investment chapter of a free trade agreement with Korea, abandoning the position of the previous government which had made a decision not to sign up to such commitments. The deal, signed in December […]

ITN  |  January 19, 2014

Awards and Decisions

Libya ordered to pay US$935 million to Kuwaiti company for cancelled investment project; jurisdiction established under Unified Agreement for the Investment of Arab Capital Mohamed Abdulmohsen Al-Kharafi & Sons Co. v. Libya and others, Final Arbitral Award Diana Rosert A tribunal has ordered Libya to pay US$935 million in a dispute over a land-leasing contract […]

ITN  |  January 19, 2014

Resources and Events

Resources United Kingdom Assessment of the Costs and Benefits of Investment Protection Treaties United Kingdom Department for Business, Innovation and Skills, November 2013 Three new reports commissioned by the Government of the United Kingdom examine the cost and benefits of investment treaties for the UK. The first report develops an analytical framework to assess costs […]

State Liability for Regulatory Change: How International Investment Rules are Overriding Domestic Law

With governments around the world pushing efforts to negotiate and approve mega-investment treaties, it is important to be clear on just what these investment treaties do and do not mean. This article compares U.S. domestic law and international treaty rules on state liability for regulatory changes. It shows that arbitral tribunals have interpreted investment treaty rules in a manner far more favorable to the interests of investors than the approaches adopted in U.S. courts.

ITN  |  September 20, 2013

Resources and Events

The BRIC States and Outward Foreign Direct Investment By David Collins, Oxford University Press, 2013 This book examines the relatively recent and under-explored phenomenon of outward foreign direct investment from the large emerging market countries, focusing on the four BRIC states (Brazil, Russia, India, and China) and on the services sector, meaning primarily telecommunications, finance, […]

ITN  |  September 20, 2013

Awards and Decisions

Claim against Turkmenistan dismissed for lack of jurisdiction; claimant failed to abide by domestic litigation requirement Kılıç İnşaat İthalat İhracat Sanayi ve Ticaret Anonim Şirketi v. Turkmenistan, ICSID Case No. ARB/10/1 Damon Vis-Dunbar A Turkish claimant’s case before an ICSID tribunal has been dismissed for failing to first pursue the dispute before Turkmenistan’s domestic courts. […]

ITN  |  September 20, 2013

News in Brief

South African trade minister confirms denunciation of EU BITs South Africa’s Minister of Trade and Industry, Rob Davies, confirmed that his government was terminating investment treaties with Belgium, Luxembourg and Spain because they contained “serious flaws.” Responding to a parliamentary question on the reason for terminating these agreements, Minister Davies explained that they were “poorly […]

Online Statements by National Investment Boards or Agencies and Their Potential Legal Effects

National investment boards or agencies operate in several countries with a view to attract foreign investment. Towards this objective, they often maintain websites highlighting the advantages of investing in their country. This article surveys some common categories of representations and promises made on the websites of national investment boards and discusses their potential legal implications.

Threat of Pharmaceutical-Related IP Investment Rights in the Trans-Pacific Partnership Agreement: An Eli Lilly v. Canada Case Study

There are many reasons to strike the draft TPP Investment Chapter, a chapter that restricts government sovereignty to regulate business activities while simultaneously ceding de facto regulatory power to foreign investors and private arbitrators. The Eli Lilly claim against clarifies the risks of including IP rights in investment chapters and the boundary-pushing claims that can be brought on behalf of foreign pharmaceutical companies.

New UNCITRAL Arbitration Rules on Transparency: Application, Content and Next Steps

In July 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted a package of rules aiming to ensure transparency in investor-State arbitration, ratifying the work done by delegations to UNCITRAL—comprised of 55 Member States, additional observer States and observer organizations—over the course of nearly three years of negotiations. With the adoption of the new rules, there is now a carefully negotiated and widely approved template that can serve as a model for how to conduct investor-State arbitrations transparently.

ITN  |  June 26, 2013

Awards and Decisions

Limited breach of FET clause established in claim against Romania; No damages awarded The Rompetrol Group N.V. v Romania, ICSID Case No. ARB/06/3 Margaret Devaney In a May 6, 2013 award, an ICSID tribunal ruled that the Rompetrol Group (TRG) had established a limited breach of the Netherlands-Romania bilateral investment treaty (BIT) but had failed […]

ITN  |  June 26, 2013

Resources and Events

Resources Investment Contracts for Farmland and Water: 10 Steps Carin Smaller, International Institute for Sustainable Development, 2013 This brief paper outlines 10 important steps to follow when negotiating investment contracts for agricultural land and water. It is intended as a resource for parliamentarians, government officials, landholders and local communities. It provides an overview of a […]

ITN  |  June 26, 2013

News in Brief

European Commission seeks permission to begin investment treaty negotiations with China The European Commission has proposed a negotiating mandate to EU member states for an investment agreement with China. This could become the EU’s first stand-alone investment agreement since it gained jurisdiction over foreign direct investment in 2009. The negotiating mandate must be approved by […]

ITN Quarterly June 2013

PDF – English (708 KB) – Français (393 KB) – Español (689 KB) In this issue: Smart Flexibility Clauses in International Investment Agreements; The Quest for Commodities: Chinese Investment in Farmland; Investment Treaties and the Search for Market Access in China; The Draft Investment Chapter of the Canada-EU Comprehensive Economic and Trade Agreement: A Step […]

The Draft Investment Chapter of the Canada-EU Comprehensive Economic and Trade Agreement: A Step Backwards for the EU and Canada?

This brief article describes some important aspects of the draft investment chapter of the Canada-EU CETA, as well as commentary on the potential implications should Canada and EU sign on to these provisions.

The Evolving BIT: A Commentary on Canada’s Model Agreement

While the revision that gave birth to the United States’ Model bilateral investment treaty in April 2012 has been closely observed and commented upon, much less attention has been paid to changes made to the Canadian Model BIT.

Investment Treaties and the Search for Market Access in China

The inclusion of market access commitments in investment agreements has proven divisive. This article looks at where China stannds on this issue.

The Quest for Commodities: Chinese Investment in Farmland

China is often singled out as one of the big ‘land grabbers’, although it strongly refutes these claims. We set out to verify whether reports about Chinese investments were accurate or not.