ICSID

The UNCITRAL Code of Conduct: Breakthrough or diversion?

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.

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.

Awards  |  December 17, 2019

Laos prevails in defending its first known treaty-based ISDS cases

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

Awards  |  December 17, 2019

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

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.

Toward a Code of Conduct for Investment Adjudicators: Can ethical standards salvage ISDS?

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.

News  |  September 19, 2019

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.

Third-Party Funding and the Objectives of Investment Treaties: Friends or foes?

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.

News  |  June 27, 2019

EU Commission proposes negotiating directives for ECT modernization

The EC released on May 14 a set of draft negotiating directives setting out its proposed approach in “modernizing” the Energy Charter Treaty (ECT).

Awards  |  December 21, 2018

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

ITN  |  October 18, 2018

Parkerings v. Lithuania

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, […]

ITN  |  October 18, 2018

Phoenix v. Czech Republic

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, […]

ITN  |  October 18, 2018

Siemens v. Argentina

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 […]

ITN  |  October 18, 2018

Burlington v. Ecuador

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 […]

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?

Venezuela held liable for unlawful expropriation of fertilizer plants

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.