Investment treaty arbitration is often expected to focus on technical issues. In practice, however, domestic political discussions and processes can have a major impact on investment disputes. The authors map out the variety of state conduct characterized by tribunals as politically motivated or influenced. They also examine the different ways in which arbitral tribunals have responded to host state conduct resulting from domestic political considerations.
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.
Enhancing Environmental Protection in International Investment Law Through the Integration of International Civil Liability Principles
Investor–state arbitration has repeatedly proven ineffective in addressing environmental damages that host states suffer as a result of investment activities. This piece examines what lessons can be learned from international civil liability conventions, which are specifically designed to ensure victims’ compensation in cases of environmental harm. The author then explores which principles from these conventions could be adapted for use in investment treaties.
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.