Current Issue

ITN June 2020

Protecting Against Investor–State Claims Amidst COVID-19: A call to action for governments, by Nathalie Bernasconi-Osterwalder, Sarah Brewin & Nyaguthii Maina

Valuing Fossil Fuel Assets in an Era of Climate Disruption, by Kyla Tienhaara, Lise Johnson, & Michael Burger

Why Do States Consent to Arbitration in National Investment Laws?, by Tarald Laudal Berge & Taylor St John

The Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation: A model to steer international law toward renewable energy investments and the low-carbon transition, by Sofia de Murard

Morocco’s New Model BIT: Innovative features and policy considerations, by Hamed El-Kady & Yvan Rwananga

Domestic Procedures for the Payment of Damages by States in Investment Arbitration, by Affef Ben Mansour

Protecting Against Investor–State Claims Amidst COVID-19: A call to action for governments

In response to the Covid-19 pandemic, governments have taken an array of measures, which, while crucial from a health perspective have hit many businesses hard. According to the authors, Nathalie Bernasconi-Osterwalder, Sarah Brewin, and Nyaguthii Maina, this situation has created an unprecedented risk of investment arbitration arising from the more than 3,000 investment treaties concluded across the globe. They argue for collective action by states to suspend the application of investor–state arbitration with respect to COVID-related measures.

Valuing Fossil Fuel Assets in an Era of Climate Disruption

There have been more than 150 known ISDS cases brought by claimants whose business involves extracting, transporting, refining, selling, or burning fossil fuels for electricity. The authors, Kyla Tienhaara, Lise Johnson, and Michael Burger explore the question of how valuation and damages in fossil-fuel related investment claims should be approached in light of climate change considerations and the contested value of fossil fuel resources.

Why Do States Consent to Arbitration in National Investment Laws?

Scenarios in which states may face an obligation to pay damages as a result of international judicial or arbitral proceedings have proliferated as an increasing number of international courts have received state consent to their jurisdiction, including in international investment arbitration. As the author, Affef Ben Mansour, discusses, among the obstacles that states encounter in the implementation of investment arbitral awards is the unsuitability of internal budgetary procedures for paying the pecuniary obligations decided by an arbitral tribunal. This difficulty is now attenuated in certain states that have adopted budgetary standards aimed at addressing such unexpected budgetary developments, which are discussed in the second part of this article.

The Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation: A model to steer international law toward renewable energy investments and the low-carbon transition

In this piece, the author analyzes the Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation (“TSI”), winner of the Stockholm Treaty Lab prize. First, she presents the TSI as a model that states could adopt to foster international investment in the transition from carbon-intensive to low-carbon energy systems. Second, she comments on some challenges in implementing the TSI model and propose possible improvements in this regard. Third, she analyzes how the TSI could be used to improve current and future bilateral investment treaties (BITs).

Domestic Procedures for the Payment of Damages by States in Investment Arbitration

Scenarios in which states may face an obligation to pay damages as a result of international judicial or arbitral proceedings have proliferated as an increasing number of international courts have received state consent to their jurisdiction, including in international investment arbitration. As the author, Affef Ben Mansour, discusses, among the obstacles that states encounter in the implementation of investment arbitral awards is the unsuitability of internal budgetary procedures for paying the pecuniary obligations decided by an arbitral tribunal. This difficulty is now attenuated in certain states that have adopted budgetary standards aimed at addressing such unexpected budgetary developments, which are discussed in the second part of this article.

News  |  June 20, 2020

European Commission Releases Guidance for FDI Screening in Response to Global Pandemic

On March 25, 2020, the European Commission published a guidance for member states on FDI screening in the face of the COVID-19 pandemic, focusing on, but not limited to, health-related industries.

News  |  June 20, 2020

Director-General of the World Trade Organization steps down unexpectedly

The director-general of the WTO, Roberto Azevêdo, announced on May 14, 2020, that he will be cutting his term short by one year and stepping down as of August 31. Azevêdo has served in the position since September 1, 2013, with his second term starting in 2017.

News  |  June 20, 2020

EU Releases Proposal for ECT Modernization

The EU released a proposal for the modernization of the  ECT on May 27, 2020.  This latest draft of the EU’s proposal includes changes to the treaty’s definition of investment, an affirmation of parties’ right to regulate, a narrower definition of FET, and reference to a multilateral investment court. The proposal also suggests several additional articles on sustainable development, frivolous claims, security for costs, interventions by third parties, third-party funding, and valuation of damages.

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  |  June 20, 2020

USCMA to Enter into Force on July 1 Following Canada’s Rushed Ratification Earlier This Year

On April 24, 2020, USTR Robert Lighthizer announced that the USMCA would enter into force on July 1 of this year, one month later than was previously agreed upon.

News  |  June 20, 2020

COVID-19 Pandemic Pushes Back Start Date for AfCFTA Entry into Force

The entry into force of the African Continental Free Trade Area (AfCFTA) has been delayed due to the Covid-19 pandemic, according to the Secretary General of the AfCFTA Secretariat, Wamkele Mene. The first phase of the agreement will now take effect by January 2021 at the earliest.

News  |  June 20, 2020

Investment Facilitation Talks: WTO member group considers new consolidated text

The 101 WTO members discussing a proposed multilateral framework on investment facilitation are now considering a new “consolidated text,” which is meant to be a stepping stone for formal negotiations once these begin.

ICSID tribunal declines jurisdiction ratione voluntatis over claims brought against Iraq under the OIC Investment Agreement

Itisaluna Iraq LLC and others v. Republic of Iraq, ICSID Case No. ARB/17/10

ICSID tribunal rejects intra-EU jurisdictional objection and upholds jurisdiction over mass claim

Theodoros Adamakopoulos and others v. Republic of Cyprus, ICSID Case No. ARB/15/49 

An HKIAC Tribunal Dismissed the Claims by U.S. Citizen Jin Hae Seo Against South Korea for Lack of Jurisdiction

Jin Hae Seo v. Republic of Korea, HKIAC Case No. HKIAC /18117

All claims rejected on merits in Lidercón’s case against Peru: Changing regulatory framework and judicial decisions did not breach the FET standard

Lidercón, S. L. v. Republic of Peru, ICSID Case No. ARB/17/9

ICSID tribunal decides Ukraine did not violate due process in reclaiming three land plots from British investors

Krederi Ltd. v. Ukraine ICSID Case No. ARB/14/17