UNCITRAL’s Working Group III—charged with global ISDS reform—has circulated its third draft Code of Conduct for investment adjudicators and suggested means for its implementation and enforcement. This article aims to give negotiators an overview of the Code’s provisions, clarify what they mean in practice, and identify specific key issues.
Bridgestone Licensing Services, Inc. and Bridgestone Americas, Inc. v. Republic of Panama, ICSID Case No. ARB/16/34
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
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
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
In a new ICSID award, Spain’s reforms of the renewable energy sector are found not to violate the ECT
Stadtwerke München GmbH, RWE Innogy GmbH, and others v. Kingdom of Spain, ICSID Case No. ARB/15/1
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
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
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.
Substantial damages awarded to Perenco for FET breach and expropriation; Ecuador also awarded compensation under environmental counterclaim
Perenco Ecuador Limited v. Republic of Ecuador, ICSID Case No. ARB/08/6
Belenergia S.A. v. Italian Republic, ICSID Case No. ARB/15/40
Glencore International A.G. and C.I. Prodeco S.A. v. Republic of Colombia, ICSID Case No. ARB/16/6
Lao Holdings N.V. v. Lao People’s Democratic Republic, ICSID Case No. ARB(AF)/12/6, and Sanum Investments Limited v. Lao People’s Democratic Republic, UNCITRAL, PCA Case No. 2013-13
Tribunal finds Pakistan breached FET, expropriation and non-impairment obligations in the context of a mining joint venture with Australian investor Tethyan Copper Company
Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID Case No. ARB/12/1
In yet another renewable energy case, Spain held liable for FET breach for frustrating French and Luxembourger investors’ legitimate expectations under the ECT
Cube Infrastructure Fund SICAV and Others v. The Kingdom of Spain, ICSID Case No. ARB/15/20
ICSID Rule Amendment: An attempt to remedy some of the concerns regarding ISDS identified by UNCITRAL WG III
The process for updating ICSID’s rules has been taking place in parallel to the UNCITRAL Working Group III deliberations on ISDS reform, prompting an important conversation of how these efforts may complement each other. In this new Insight, Rafael Ramos Codeço and Henrique Martins Sachetim examine the ICSID rule amendment process, taking a close look at a few key amendments under consideration and examining the extent to which these might help address some of the ISDS-related concerns that have been identified at UNCITRAL.
Ivory Coast’s New Investment Code: Focus on issues related to sustainable development and dispute settlement
Ivory Coast adopted a new investment code on August 1, 2018. This new law features a variety of innovations ranging from the revitalization of the institutional framework to the reconfiguration of tax rules to new obligations on investors.
The idea of entrusting party-appointed arbitrators with powers to decide investor–state disputes through final and binding awards, inherited from commercial arbitration and traditionally accepted as appropriate, now causes discomfort among critics.
ICSID rule amendment process: Third working paper released in August 2019, consultation with states scheduled for November 2019, approval expected for October 2020
On August 16, 2019, the ICSID secretariat released the third working paper featuring proposed rule amendments, based on inputs from member states and the public.
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
This piece examines recent trends in the use of third-party funding (TPF) in treaty-based ISDS and the implications of TPF for investor conduct, developments in investment law and host state conduct. TPF has been raised in two multilateral processes currently underway: the talks to amend ICSID arbitration rules and to consider multilateral reform of ISDS at UNCITRAL. Given the narrow nature of the TPF discussions in ICSID, the authors make the case for policy-makers to consider full or partial bans of TPF at UNCITRAL.
The EC released on May 14 a set of draft negotiating directives setting out its proposed approach in “modernizing” the Energy Charter Treaty (ECT).
Claims against Albania dismissed by ICSID tribunal as the Anglo-Adriatic Group did not have a protected investment
ANGLO-ADRIATIC GROUP LIMITED V. REPUBLIC OF ALBANIA, ICSID CASE NO. ARB/17/6
ICSID tribunal finds Spain breached ECT obligations by failing to provide a reasonable rate of return
RREEF INFRASTRUCTURE (G.P.) LIMITED AND RREEF PAN-EUROPEAN INFRASTRUCTURE TWO LUX S.A R.L. V. KINGDOM OF SPAIN, ICSID CASE NO. ARB/13/30
Investors’ legitimate expectation claims against Italy dismissed due to the absence of specific commitments
BLUSUN S.A., JEAN-PIERRE LECORCIER AND MICHAEL STEIN V. ITALIAN REPUBLIC, ICSID CASE NO. ARB/14/3
ICSID tribunal constituted by virtue of an MFN clause holds Turkmenistan liable for FET breach for requiring investors to produce “smeta,” a cost estimate required by Turkmen law
GARANTI KOZA LLP V. TURKMENISTAN, ICSID CASE NO. ARB/11/20
ANGLO AMERICAN PLC V. BOLIVARIAN REPUBLIC OF VENEZUELA, ICSID CASE NO. ARB(AF)/14/1
MARFIN INVESTMENT GROUP HOLDINGS S.A., ALEXANDROS BAKATSELOS AND OTHERS V. REPUBLIC OF CYPRUS, ICSID CASE NO. ARB/13/27
Kenya prevails in BIT arbitration: British investors’ claims dismissed due to the absence of environmental impact assessment
Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya, ICSID Case No. ARB/15/29
UP AND C.D. HOLDING INTERNATIONALE V. HUNGARY, ICSID CASE NO. ARB/13/35
Tribunal finds Costa Rica’s measures to protect the environment did not breach FET or its expropriation obligations under CAFTA-DR
DAVID R. AVEN AND OTHERS V. REPUBLIC OF COSTA RICA, ICSID CASE NO. UNCT/15/3
UNIÓN FENOSA GAS, S.A. V. ARAB REPUBLIC OF EGYPT, ICSID CASE NO. ARB/14/4
ICSID tribunal accepts jurisdiction over investor’s claim under United Kingdom–Czechia BIT but rules in favour of Czechia
A11Y LTD V. CZECH REPUBLIC, ICSID CASE NO. UNCT/15/1
Parkerings–Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8 (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/cases/812 Keywords Broad dispute resolution provision, cultural measures, due diligence, environmental measures, exhaustion of remedies, expropriation, fair and equitable treatment, good […]
Phoenix Action Ltd. v. Czech Republic, ICSID Case No. ARB/06/5 (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/cases/850 Keywords Abuse of process, definition of “investment,” good faith, investor obligations, jurisdiction, “Salini” test Key dates Request for Arbitration: […]
Siemens A.G. v. Republic of Argentina, ICSID Case No. ARB/02/8 (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, award and other documents available at https://www.italaw.com/cases/1026 Keywords Corruption, damages, expropriation, interpretation, investor obligations, margin of appreciation, most favoured nation, proportionality, […]
Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5 (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. Read more here.) Decisions and Award are available at https://www.italaw.com/cases/181 Keywords Taxation, investor obligations, environmental counterclaim Key Dates Request for Arbitration: April […]
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?
MASDAR SOLAR & WIND COOPERATIEF U.A. V. THE KINGDOM OF SPAIN, ICSID CASE NO. ARB/14/1
ACP AXOS CAPITAL GMBH V. REPUBLIC OF KOSOVO, ICSID CASE NO. ARB/15/22
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
UAB E ENERĢIJA V. REPUBLIC OF LATVIA, ICSID CASE NO. ARB/12/33
Lighthouse Corporation Pty Ltd and Lighthouse Corporation Ltd, IBC v. Democratic Republic of Timor-Leste, ICSID Case No. ARB/15/2
FÁBRICA DE VIDRIOS LOS ANDES, C.A. AND OWENS-ILLINOIS DE VENEZUELA, C.A. V. BOLIVARIAN REPUBLIC OF VENEZUELA, ICSID CASE NO. ARB/12/21
Koch Minerals Sárl and Koch Nitrogen International Sárl v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/19
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.
Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21
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