Current Issue

Reconciling the rights of multinational companies under IIAs with the tort liability caused by their subsidiaries

Because of their structure, multinational corporations (MNCs) can resort to IIAs to protect their subsidiaries. At the same time, by virtue of the principles of corporate separation and limited liability, MNCs can take advantage of their structure to avoid liability for the damages caused by their subsidiaries. This paper highlights the need for a more balanced approach with regards to the rights and obligations of MNCs under IIAs.

The return of investment screening as a policy tool

One of the most striking trends in investment policy over the past decade has been the increased use of investment screening as a policy tool, particularly in developed economies, with the issue becoming more salient with the advent of the COVID-19 pandemic. This article provides an overview of these developments.

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.

Does the investment treaty regime promote good governance? The case of mining in Santurbán, Colombia

Investment treaties and arbitration are argued, by proponents of the regime, to contribute to “good governance” in host states. This article, based on an empirical study of mining investments in the Colombian páramo, argues that the conception of good governance promoted by investment arbitration is incomplete and does not adequately consider the role of courts in providing checks and balances.

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.

The human rights binding treaty negotiation from an international investment law perspective

The sixth negotiation round for the binding treaty on business and human rights recently concluded. This article draws parallels between the issues raised during these negotiations and those that have been the focus of the ongoing conversations on investment arbitration reform.

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.

News  |  December 19, 2020

EU investment screening

The EU’s foreign investment screening mechanisms became operational on October 11, 2020.  As we’ve reported, guidance on the screening mechanisms, which are implemented by individual member states, was released in March 2020 following the 2019 entry into force of the FDI Screening Regulation.

News  |  December 19, 2020

EC suggests withdrawal is a possibility as Energy Charter Treaty modernization negotiations continue

On December 2, 2020, in an answer to questions submitted by MEPs, the EC suggested that the EU could exit the ECT.

News  |  December 19, 2020

Asia-Pacific leaders sign RCEP

On November 15, 2020, 15 Asia-Pacific countries signed the Regional Comprehensive Economic Partnership (RCEP) nearly one year after negotiations came to a close.

News  |  December 19, 2020

UNCITRAL Working Group III pre-intersessional meeting on the use of mediation in ISDS

On November 9, 2020, the Asian Academy of International Law hosted a virtual event on the use of mediation in investor–state dispute settlement. This event is one of several being organized by UNCITRAL in parallel to the formal meetings of the Working Group III on investor–state dispute settlement reform.

News  |  December 19, 2020

IIA Reform Accelerator Launches

UNCTAD’s IIA Reform Accelerator launched in November 2020.

Awards  |  December 19, 2020

ICSID tribunal rejects denial of justice claim against the Republic of Panama

Bridgestone Licensing Services, Inc. and Bridgestone Americas, Inc. v. Republic of Panama, ICSID Case No. ARB/16/34

Awards  |  December 19, 2020

In another energy case against Italy, an ICSID tribunal rejects all claims on the merits on the basis that Italy acted reasonably and in the public interest

Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50

Awards  |  December 19, 2020

ICSID tribunal partially upholds jurisdiction claims under Austria–Poland Encouragement and Protection of Investments Agreement and rejects Achmea’s applicability

Strabag SE, Raiffeisen Centrobank AG and Syrena Immobilien Holding AG v. Poland, ICSID Case No. ADHOC/15/1

Awards  |  December 19, 2020

ICSID tribunal dismisses claims of Interocean Oil Development Company and Interocean Oil Exploration Company against Nigeria while upholding its jurisdiction to hear the claims solely based on Nigeria’s domestic investment statute

Interocean Oil Development Company and Interocean Oil Exploration Company v. Federal Republic of Nigeria, ICSID Case No. ARB/13/20