The April 2019 deliberations on multilateral ISDS reform at UNCITRAL Working Group III were due to tackle a series of questions that emerged in Phase 2 of the process. This piece breaks down why the scope of these discussions should be expanded to include important concerns raised by developing countries, and describes three core issues that must not be ignored. These involve the right to participation by affected parties; the rule of law and domestic courts’ jurisdiction; and the chilling of sovereign states’ authority and responsibility to govern.
Protecting Social Rights Using the Amicus Curiae Procedure in Investment Arbitration: A smokescreen against third parties?
Arguments submitted by an amicus curiae (a “friend of the court”) have become increasingly common in investment arbitration. Many of these arguments deal with internationally recognized social rights, such as the right to water or food. This piece considers the restrictive conditions on amici curiae admission, the frequent reference to social rights issues in amici briefs, and the challenges in presenting these social rights arguments. The author advances possible actions that amici and states can take to make their social rights arguments more effective in an investment law context.
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Award available at https://www.italaw.com/sites/default/files/case-documents/ita0095.pdf Keywords Amicus curiae, causation, damages, definition of “investment,” expropriation, fair and equitable treatment, jurisdiction, […]
Methanex Corp. v. United States of America, UNCITRAL (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Decision and awards available at https://www.italaw.com/cases/683 Keywords Amicus curiae, corruption, environmental measures, expropriation, fair and equitable treatment/minimum international standards of treatment, legitimate expectations, like circumstances, […]
Glamis Gold Ltd. v. United States of America (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Award and other documents available at http://www.state.gov/s/l/c10986.htm Keywords Amicus curiae, cultural measures, environmental measures, expropriation, fair and equitable treatment/minimum international standards of treatment, legitimate […]
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 Case No. ARB/12/40 Inaê Siqueira de Oliveira [*] After rendering separate decisions on jurisdiction¾one for the case brought by British company Churchill Mining PLC under the United […]
Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12 On October 14, 2016, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) dismissed on their merits all claims by Pac Rim Cayman LLC (Pac Rim) against El Salvador. The tribunal ordered the mining company—currently owned by Australian-Canadian OceanaGold—to […]
Resources International Arbitration Case Law This website is a private, not-for-profit academic endeavour, in partnership with the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London. Its objective is to summarize, edit, and coordinate the publication of decisions rendered by arbitral tribunals, international tribunals and national courts in matters of […]
South Africa begins withdrawing from EU-member BITs South Africa has terminated its bilateral investment treaty with Belgium and Luxembourg, and intends to phase out other treaties with European countries. In a September 7th letter to Belgium’s Ambassador in Pretoria, South Africa’s Minister of International Relations denunciated the treaty, in accordance with the treaty’s termination clauses […]
Canada and Dow Chemical settle claim over pesticide ban A controversial NAFTA investment dispute between Dow AgroSciences and the government of Canada was settled this May. The settlement agreement involves no money exchanging hands, and the Province of Quebec will continue to restrict the use the lawn pesticides – the measure that prompted Dow to […]
Working group moves slowly on agreement for transparency in UNCITRAL Arbitration Rules A working group of the United Nations Commission on International Trade Law (UNCITRAL) met from 7-11 February 2011 in New York to discuss public access to information about disputes between investors and states under the UNCITRAL Arbitration Rules. The meeting marked the second […]
European Union institutions consider the EU’s future international investment policy Debate on the future of the European Union’s international investment policy is heating up as EU institutions weigh in with their recommendations. With the entry into force of the Lisbon Treaty on 1 December 2009, the EU received exclusive competence over foreign direct investment, which […]
Ignacio Torterola In October, State delegations are expected to discuss the issue of transparency in the UNCITRAL Rules of Arbitration. Ignacio Torterola, ICSID Liaison at the Argentine Embassy in Washington, DC, and Argentine Delegate to the UNCITRAL Working Group II, explains why greater openness would benefit the investment arbitration system. Some preliminary considerations Working Group […]
By Elizabeth Whitsitt November 3, 2009 In a high-profile arbitration involving mining interests owned by Piero Foresti, Laura de Carli and others versus the Republic of South Africa, an ICSID tribunal (the “Tribunal”) has accepted two petitions for participation by Non-Disputing Parties (“NDPs”) and imposed innovative procedural steps regarding document disclosure and participant feedback. In […]
By Elizabeth Whitsitt October 11, 2009 In a high-profile arbitration involving mining interests owned by Piero Foresti, Laura de Carli and others versus the Republic of South Africa, an ICSID tribunal (the “Tribunal”) has accepted two petitions for participation by Non-Disputing Parties (“NDPs”) and imposed unprecedented procedural steps regarding document disclosure and participant feedback. […]