BITs

News  |  October 7, 2021

Ecuador rejoins the ICSID Convention

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.

News  |  October 7, 2021

Spain and Colombia sign new BIT

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.

News  |  October 7, 2021

Pakistan terminates 23 BITs

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.

News  |  June 24, 2021

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.

News  |  June 24, 2021

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.”

Are interpretative declarations appropriate instruments to avoid uncertainty? The cases of the Colombia–France BIT and the Colombia–Israel FTA

According to the Colombian Constitution, the Constitutional Court must assess the constitutionality of all international treaties after signature and prior to ratification. In two recent landmark decisions, the court assessed the constitutionality of the BIT signed with France in 2014 and of the FTA signed with Israel in 2013. This article examines these decisions and identifies some areas of concern.

Corporate investors’ nationality and reforming investment treaties: Can older-generation treaties undermine substantive reforms?

The investment treaty regime is undergoing a period of reform, with many states revising or renegotiating their treaties. However, as this article explains, older treaties that remain in force may undermine these reform efforts, allowing behaviour that these reforms are meant to curb—such as forum-shopping—to continue.

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.

Explaining Ecuador’s shifting position on FDI, investment treaties, and arbitration

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.

News  |  June 20, 2020

EU Member States Sign Agreement to Terminate Intra-EU BITs While German Investor Brings Claim Against the Netherlands Under the ECT

On May 5, 2020, 23 European Union member states* formally agreed to the termination of intra-EU BITs.

News  |  March 10, 2020

China–EU investment talks: Negotiators debate new market access offers, eyeing 2020 outcome

The talks between China and the EU for a Comprehensive Agreement on Investment saw an important milestone in December 2019, as the two sides exchanged new market access offers. They had exchanged market access offers once previously, in July 2018.

Hungary held liable for expropriating the investment of a British investor and ordered to pay EUR 7 million in compensation for damages

Magyar Farming Company Ltd, Kintyre Kft, and Inicia Zrt v. Hungary, ICSID Case No. ARB/17/27

The BIT is not in force: Mozambique prevails on jurisdiction in case against South African investor

Oded Besserglik v. Mozambique, ICSID Case No. ARB(AF)/14/2

CMC’s claims dismissed on the merits: While a settlement agreement may be considered an investment under the BIT and the ICSID Convention, Mozambique did not agree to one

CMC Muratori & Cementisti and others v. Republic of Mozambique, ICSID Case No. ARB/17/23

UNCTAD’s 2019 High-level IIA Conference: A new momentum for Phase 2 reform

There are several efforts underway at multiple levels—national, bilateral, regional and multilateral—aimed at reforming the IIA regime. These reform efforts are operating in parallel to developments in other areas of international investment governance, some of which have advanced quickly over the past year, including the structured discussions on investment facilitation at the WTO, as well as efforts in the UN context to craft a binding treaty on business and human rights. This year’s UNCTAD High-Level IIA Conference assessed the progress made to date since launching UNCTAD’s 10 Options for Phase 2 of IIA Reform, looking at trends across multiple areas of international investment governance, as well as across world regions. This ITN Insight summarizes the key takeaways from the 2019 event and considerations for Phase 2 going forward.

Judgment C-252 of 2019 of the Constitutional Court of Colombia: Change of precedent on the control of BITs

Judgment C-252 of the Constitutional Court of Colombia,[1] on the constitutionality of the Colombia–France BIT,[2] has aroused interest[3] for being the response of the constitutional judge to the way in which foreign investment protection clauses are incorporated into domestic law.

News  |  September 19, 2019

EU–China investment negotiations: Advances on national treatment, financial services

Talks for an EU–China BIT have made some progress in the areas of financial services and national treatment, according to a report circulated by the European Commission in July, with another negotiating round planned for the week of September 23.

Awards  |  September 19, 2019

Jurisdiction declined in case against Uruguay as ICSID tribunal concludes that American company lacked ownership or control over the investment

Italba Corporation v. Oriental Republic of Uruguay, ICSID Case No. ARB/16/9

The Kenyan Parliament and Investment Treaty Making

The Kenyan government has made parliamentary oversight and public participation a constitutionally mandated part of any BIT approval. While that same parliamentary involvement has fallen short of its desired potential, it could still play a valuable role in ensuring that BIT negotiations are open and transparent, and that the public is both aware of and engaged with the treaty-making process and what it means. This piece examines the lessons learned from Kenya’s BIT and ISDS experience to date. The author argues that the Kenyan High Court’s ruling that double taxation treaties do not require oversight and approval from the legislative branch should not set an example for the government as it considers how to revise its investment treaty-making processes.

News  |  June 27, 2019

Australia inks new BIT with Uruguay, trade and investment deals with Hong Kong

Australia has signed a new BIT with Uruguay and an investment deal with Hong Kong. The agreements feature some changes or clarifications to past deals’ provisions on ISDS and on government regulations designed to fulfill public policy objectives, such as health.

ICSID tribunal upholds Panama’s plea of illegality in the making of an investment in a tourism project located in an Indigenous area

ÁLVAREZ Y MARÍN CORPORACIÓN S.A., BARTUS VAN NOORDENNE, CORNELIS WILLEM VAN NOORDENNE, ESTUDIOS TRIBUTARIOS AP S.A. AND STICHTING ADMINISTRATIEKANTOOR ANBADI V. REPUBLIC OF PANAMA, ICSID CASE NO. ARB/15/14

India found in breach of BIT with Germany by UNCITRAL tribunal in respect of agreement for lease of electromagnetic spectrum

DEUTSCHE TELEKOM AG V. THE REPUBLIC OF INDIA, PCA CASE NO. 2014-10

News  |  April 23, 2019

Australia and Indonesia sign economic partnership agreement, including ISDS mechanism

Australia and Indonesia have now signed their Comprehensive Economic Partnership Agreement (IA-CEPA), bringing to a close a negotiating process that began in November 2010. The two countries signed the agreement on March 4, 2019. The IA-CEPA also includes an investment chapter and four related annexes, which cover an arbitrators’ code of conduct; expropriation and compensation; foreign investment policy; and public debt.

ICSID tribunal awards ConocoPhillips USD 8.7 billion plus interest in dispute with Venezuela

CONOCOPHILLIPS PETROZUATA B.V., CONOCOPHILLIPS HAMACA B.V., CONOCOPHILLIPS GULF OF PARIA B.V. AND CONOCOPHILLIPS COMPANY V. THE BOLIVARIAN REPUBLIC OF VENEZUELA, ICSID CASE NO. ARB/07/30

Corporate Social Responsibility Clauses in Investment Treaties

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?

Awards  |  December 21, 2018

Egypt found liable for the shut-down of an electricity plant during the 2011 uprising

UNIÓN FENOSA GAS, S.A. V. ARAB REPUBLIC OF EGYPT, ICSID CASE NO. ARB/14/4

The 2018 Draft Dutch Model BIT: A critical assessment

In May 2018, the Dutch Ministry of Foreign Affairs published its new draft model bilateral investment treaty (BIT), in hopes to foster rethinking of existing and future Dutch BITs. Will this revised model achieve this goal, or does it fall short of the promised policy reset?

The Case Against Third-Party Funding in Investment Arbitration

Third-party litigation funding (TPF) is a rapidly expanding industry composed of speculative investors who invest in a legal claim for control of the case and a contingency in the recovery. In the wake of the global financial crisis and the demand by speculative finance for new investment vehicles, TPF has discovered the regime of bilateral investment treaties (BITs) with investor–state dispute settlement (ISDS) mechanisms.

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.

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

ICSID tribunal finds Latvia breached FET under Latvia–Lithuania BIT

UAB E ENERĢIJA V. REPUBLIC OF LATVIA, ICSID CASE NO. ARB/12/33

Solar energy claims brought by German investors against Czechia are dismissed

Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic, PCA Case No. 2014-03

Government Regulatory Space in the Shadow of BITs: The Case of Tanzania’s Natural Resource Regulatory Reform

Tanzania passed three new laws in July 2017 that significantly change the regulatory landscape governing natural resources. The reforms are aimed at ensuring that foreign investment benefits Tanzanian citizens.From an African perspective, this article argues that it is time to rethink investment treaty regimes to ensure that they do not hinder much-needed reforms.

UNCTAD’s 2017 High-level IIA Conference: Moving Forward on Addressing Older-Generation International Investment Agreements

Over 300 experts gathered in Geneva to take stock of the sustainable development-oriented reform of the investment treaty regime and discuss policy options for modernizing the existing stock of older-generation treaties. Participants recognized that multilateral collaboration would be key to addressing the complex IIA regime.

Review of The Political Economy of the Investment Treaty Regime

In their new book, Jonathan Bonnitcha, LaugePoulsen and Michael Waibel develop a coherent structure for policy analysis of investment treaties that should attract interest as governments review their treaty policies. It argues that investment treaties as currently applied often appear poorly tailored to address identifiable economic concerns.

Awards  |  December 21, 2017

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

Awards  |  December 21, 2017

ICSID tribunal affirms jurisdiction over dispute between Chinese construction firm and Yemen

Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30

Awards  |  December 21, 2017

Claims brought by a company controlled by an Egyptian billionaire against Algeria are held inadmissible

Orascom TMT Investments S.à r.l. v. People’s Democratic Republic of Algeria, ICSID Case No. ARB/12/35

Integrating Sustainable Development in International Investment Law: Normative incompatibility, system integration and governance implications

This book presents an important systematic study of the issue of sustainable development and international investment law, using conceptual, normative and governance perspectives to explore the challenges and possible solutions for making international investment law more compatible with sustainable development.

Reconceptualizing International Investment Law from the Global South

This book shows how the current reform in investment regulation is part of a broader attempt to transform the international economic order.

The 2016 Morocco–Nigeria BIT: An Important Contribution to the Reform of Investment Treaties

Two African developing countries respond to criticisms against the investment regime. The innovative treaty offers protection to foreign investors without compromising on the host state’s capacity to regulate in the public interest.

A Look into China’s Slowly Increasing Appearance in ISDS Cases

China has sustained robust inbound and outbound flows of foreign direct investment and expanded its web of investment treaties. This note sheds light on the country’s appearance in investment treaty cases in the past decade, either as home or host state.

Investment Treaties and the Internal Vetting of Regulatory Proposals: A Case Study from Canada

Does the prospect of foreign investor claims against countries in investor–state arbitration lead to regulatory chill? The authors asked officials whether ISDS contributed to changes in the internal vetting of government decisions on environmental protection.

Awards  |  September 26, 2017

Argentina ordered to pay over USD320 million for unlawful expropriation in airlines case

Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID Case No. ARB/09/1

Awards  |  September 26, 2017

An ICSID tribunal dismisses its jurisdiction as investor abused its rights by “reviving” a company to access arbitration against Cameroon

Capital Financial Holdings Luxembourg SA v. Republic of Cameroon, ICSID Case No. ARB/15/18

Awards  |  September 26, 2017

Ecuador awarded USD41 million in counterclaim against U.S. oil and gas company Burlington Resources

Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5

The Recent Argentina–Qatar BIT and the Challenges of Investment Negotiations

Argentina has come back to the BIT negotiation arena after a 15-year halt, concluding a treaty with Qatar and engaging in ongoing negotiations with Japan. The new treaty includes traditional along with innovative provisions.

Sustainability Toolkit for Trade Negotiators: Tapping the Potential of Trade and Investment Agreements for Achieving Environmental Goals

Developed by IISD and the United Nations Environment Program (UNEP), this toolkit is designed to help trade and investment negotiators by showing how specific provisions can better support sustainable development objectives.

News  |  June 12, 2017

Ecuador denounces its remaining 16 BITs and publishes CAITISA audit report

Ecuadorian President Rafael Correa formalized Ecuador’s withdrawal on May 16, 2017 from BITs concluded with 16 countries.

ICSID tribunal finds Egypt in breach of several provisions of the U.S.–Egypt BIT

Ansung Housing Co., Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25