According to a press statement released by the Energy Charter’s Secretariat on March 17, 2023, Germany exercised its right under Article 17 of the Energy Charter Treaty (ECT) to deny […]
The European Parliament recommended to the Commission to propose a Directive on the regulation of third-party funding in the EU with the title “Responsible funding of litigation.” If adopted in […]
The Government of Norway has been pursuing the termination of its bilateral investment treaties (BITs) with members of the European Economic Area (EEA–EEA membership contains EU and European Free Trade […]
In March 2023, it was reported that the Government of India had sent out 68 notices of termination regarding its existing bilateral investment treaties (BITs). It is understood that the […]
As award creditors in the renewable energy ISDS cases lost by Spain face significant hurdles to enforce their awards within the EU, they often turn to U.S. courts for enforcement. […]
The continent’s Ministers of Justice finalized legal scrubbing of the three key protocols to the African Continental Free Trade Area (AfCFTA), among which was the Protocol on Investment (the other […]
After a vote in the Council of the EU for the proposed reform of the Energy Charter Treaty failed last November, the European Commission appears to have radically shifted its […]
Since September 2020, a group of WTO members has been negotiating a new agreement on investment facilitation disciplines, following nearly 3 years of preparatory work. The negotiations for this Investment […]
In November 2022, the EU signed three memoranda of understanding (MoUs) with Ukraine, Kazakhstan, and Namibia on strategic cooperation on sustainable raw materials, batteries, and renewable hydrogen. These MoUs are […]
In February 2023, the EU and India set up a new Trade and Technology Council (TTC). The new TTC will deepen strategic engagement on trade and technology between both partners. […]
On January 5, 2023, the EU Corporate Sustainability Reporting Directive entered into force. This new directive codifies the rules about the social and environmental information that companies have to report. […]
The OECD Guidelines for Multinational Enterprises are one of the main reference instruments that set out recommendations to businesses for ensuring responsible business conduct in a wide area of business […]
African negotiators embarked on a yearlong process in December 2021 to develop the text of the Protocol on Investment, culminating in a final version that defines the protection, promotion, and facilitation […]
Amid a growing number of national decisions to withdraw from the Energy Charter Treaty, pressure on the European Commission to prepare a withdrawal of the bloc is increasing. So far, […]
The members of the WTO Joint Statement Initiative (“JSI”) on Investment Facilitation for Development have completed two more rounds of negotiations, with one taking place in November, and another from […]
On November 11, 2022, the Irish Supreme Court handed down an important judgment regarding the constitutionality of the investment chapter in the CETA. The court held that currently, the Irish […]
In an important and highly anticipated decision, The Hague District Court denied compensation to two German energy companies, RWE and Uniper, owners of three Dutch coal-fired energy plants, for the […]
EU and Angola conclude Sustainable Investment Facilitation Agreement—the first EU agreement of this kind
In November 2022, the EU and Angola concluded a Sustainable Investment Facilitation Agreement (SIFA)—the first EU agreement of this kind. The SIFA aims to make it easier to attract and […]
After more than 5 years of negotiations involving representatives from governments, business, civil society as well as legal counsel and arbitrators, the ICSID has released its new 2022 Rules and Regulations. The new 2022 Rules and Regulations came into effect on July 1, 2022.
Plurilateral negotiations on investment facilitation for development agreement at WTO enter final sprint
Signatories of the joint statement initiative on investment facilitation for development (IFD), which is currently supported by more than 110 WTO members (two-thirds of the WTO membership), aim to conclude text-based talks by the end of this year.
The European Commission and the German federal government put together a draft statement clarifying the content of the FET and indirect expropriation standards in CETA.
Ahead of a critical vote this November, the fate of the ECT modernization hangs in the balance amid continued questions over whether the reforms go far enough to render the agreement compatible with global climate action goals under the UN’s Paris Agreement.
Since December 2021, when state parties to the AfCFTA began discussion rounds on the zero-draft text to raise preliminary concerns on it, they have since had rounds of negotiations between March and June 2022.
From September 5 to 16, 2022, UNCITRAL Working Group III (WGIII) on ISDS Reform held its 43rd session. This was the first in-person session since the global outbreak of COVID-19. It was also one of the longest WGIII sessions, covering a broad range of topics.
In December, the OECD released model Global Anti-Base Erosion Rules (GloBE) rules for countries to implement a global minimum tax and for companies to adhere to. It subsequently published detailed technical guidance on these model rules in the form of a commentary and examples.
Intergovernmental Working Group continues work to develop a draft Convention on the Right to Development
The UN Convention on the Right to Development is a multilateral framework currently being negotiated by the UN General Assembly Human Rights Council and drafted by a tasked drafting committee. It stems from the 1986 UN Declaration on the Right to Development, which establishes development as a right and puts people at the centre of the development process.
On May 10, 2022, the OECD held its seventh Annual Investment Treaty Conference on the nexus of investment treaties and climate change policy. The event took place following unprecedented warnings by the Intergovernmental Panel on Climate Change about the problematic role played by investment treaties as an obstacle to climate action.
Draft code of conduct for legal decision-makers still under discussion In accordance with its work plan, UNCITRAL WGIII is continuing to make progress on ISDS reform. At its 42nd session, […]
Key Questions Remain as Governments Announce “Agreement in Principle” for Modernized Energy Charter Treaty
After a lengthy negotiation process, Contracting Parties at the June 24 meeting of the Energy Charter Conference reached an agreement in principle to modernize the Energy Charter Treaty (ECT)—an outdated investment treaty that protects fossil fuel investors at the expense of critical climate action.
Following discussions at the Freedom of Investment Roundtable in 2021, the OECD has launched a new Work Programme on the Future of Investment Treaties.
From March 1 to 4, 2022, the contracting parties of the ECT met for their 11th round of negotiations for a possible reform of the treaty. The meeting was overshadowed by rising energy prices and the Russian invasion of Ukraine, which is likely to have significant consequences for the European energy market.
The tribunal in the NAFTA-based arbitration of Odyssey Marine Exploration, Inc. v. United Mexican States has declared inadmissible the amicus curiae brief submitted by the Centre for International Environmental Law (CIEL) in collaboration with Sociedad Cooperativa de Producción Pesquera Puerto Chale (Cooperativa).
The European Commission has adopted a proposal on requiring EU companies to conduct “due diligence” processes related to their human rights and environmental impacts. Some businesses would also be required to align their business strategies with limiting global warming to 1.5°C. The directive also extends to companies’ subsidiaries and value chains.
On December 10, 2021, WTO members who are signatories to the Joint Statement Initiative on investment facilitation adopted a statement (contained in document WT/L/1130). In this statement, they welcomed the progress made in negotiations, “aiming to conclude the text negotiations by the end of 2022.”
In accordance with the third phase of its mandate, as well as the work planning and resourcing plan adopted at its 40th session, UNCITRAL Working Group III (WGIII) has continued its work on ISDS reform in 2022, with a focus on the draft code of conduct for international investment adjudicators, which was already the sole topic on the agenda of the 41st session and the subject of an informal meeting in December 2021.
The UNCITRAL WGIII on ISDS reform held its 41st session from November 15–19, 2021, with delegates participating both in person and virtually. Discussions focused on the proposed Draft Code of Conduct for Adjudicators in International Investment Disputes and its attendant note on Means of Implementation and Enforcement.
Structured discussions on investment facilitation continue during lead-up to now-postponed ministerial conference
Over these last months, participating WTO members have continued work on new proposals as well as on the “Easter Text” (circulated by the coordinator of the structured discussions in mid-April), which has become the basis for negotiations.
Since our last report, two more negotiation rounds have taken place on ECT modernization. The seventh round took place from October 28–November 1, 2021, while the eighth round was held from November 9–11, 2021.
Since we last reported on the process, there have been two virtual negotiation rounds on ECT modernization, taking place in the midst of increased civil society opposition to the agreement, particularly within the EU.
UNCITRAL WGIII to consider proposals on various elements of ISDS reform while the outcome of the request for additional funding remains to be seen
As we reported, UNCITRAL WGIII on ISDS reform held its 40th session in May 2021, at which time delegates discussed a draft work and resourcing plan.
Twelve years after it denounced the agreement, Ecuador has again ratified the ICSID Convention. The agreement came back into force on September 3, following the deposit of the instrument of ratification with the World Bank on August 21.
The prime minister of Spain, Pedro Sánchez, and the president of Colombia, Iván Duque Márquez, signed a new BIT on September 16, 2021. Both countries sought to modernize the previous treaty, which had come into force in 2005.
The government of Pakistan has reportedly resolved to terminate 23 of the country’s 48 BITs that have completed their initial duration. Additionally, the country will not ratify 16 BITs that have been signed but have yet to enter into force.
On July 27, 2021, the UN Working Group on Business and Human Rights published its 2021 Report on Human Rights-Compatible IIAs.
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.