With negotiators preparing for the seventh round of ECT modernization talks, and no signs of tangible progress, the continued emergence of new investor-state disputes under the controversial agreement has highlighted the risks the treaty poses for states as they phase out fossil fuels. Of all fossil fuels, coal has the greatest climate impact, and UN […]
An Interview With Esmé Shirlow on Judging at the Interface: Deference to state decision-making authority in international adjudication
What prompted you to write this book? What gap in our understanding of deference does the book fill? This project grew out of my work in international adjudication, including my work as a government lawyer in the Australian Government’s Office of International Law. Through this work, I realized that many different approaches to assessing the […]
(Français) Frazer Solar GMBH c. le Royaume du Lesotho
The ICSID tribunal in Infinito Gold v Costa Rica upholds several claims but declines to award damages. The majority of the tribunal found breaches of the FET standard but damages too speculative
Infinito Gold Ltd. v. Costa Rica, ICSID Case No. ARB/14/5
In June 2021, the tribunal in Infinito Gold v. Costa Rica found Costa Rica liable for a breach of fair and equitable treatment but rejected the investor’s request for roughly USD 100 million and awarded no damages. This case, which also involved allegations of corruption by the investor, may have been successful on liability but […]
An Interview with Nicolás Perrone on Investment Treaties and the Legal Imagination: How Foreign Investors Play By Their Own Rules
Investment Treaties and the Legal Imagination: How Foreign Investors Play By Their Own Rules, Professor Nicolás Perrone’s newly published book on the international investment regime, was published by Oxford University Press in April 2021. The book pushes us to think about the ways in which the origins of the regime—the people who imagined it and […]
As we reported, German-owned energy company Uniper put the Netherlands on notice of an investment dispute last year, following the announcement of the country’s plan to phase out coal-burning power plants by 2030. Alongside RWE, another German energy company, Uniper made good on that threat earlier this year; both companies initiated ICSID claims lodged under the ECT this spring.
The ways in which the investment protection regime frames disputes between states and investors misses that these disputes, particularly when they relate to the extractive industry, are embedded in complex social relations. This article calls for a reimagining of these disputes and efforts to resolve them.
This article examines a contract-based dispute, P&ID v. Nigeria, which highlights issues of corruption and lack of transparency in this type of dispute settlement. It concludes that, given the significant public interests at stake in investor–state arbitration, including the possibility that arbitration may facilitate the corrupt transfer of public funds to private actors, they should not be conducted in private.
This article focuses on debunking assumptions surrounding the use of balancing and proportionality in international investment arbitration as a way of successfully reconciling competing interests and conflicting protection obligations vested upon host states.
French consortium kicks off an ICSID claim against Chile after USD 37 million loss due to COVID-19 Pandemic
On January 19, 2021, the main shareholders of a consortium controlling the billion-dollar concession for Santiago’s Arturo Merino Benítez international airport informed Chilean President Sebastián Piñera of their intention to initiate an ICSID claim. The investors claimed they had suffered losses as a consequence of measures taken in response to the COVID-19 pandemic.
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.
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.
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.
Judgment C-252 of 2019 of the Constitutional Court of Colombia: Change of precedent on the control of BITs
Judgment C-252 of the Constitutional Court of Colombia, on the constitutionality of the Colombia–France BIT, has aroused interest for being the response of the constitutional judge to the way in which foreign investment protection clauses are incorporated into domestic law.
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.
UNCITRAL secretariat publishes documents to be considered at October 2019 session of Working Group III on ISDS reform
Delegates to the UNCITRAL Working Group III process on multilateral ISDS reform will meet again in Vienna during the week of October 14–18, 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.
The European Council has approved negotiating directives for the EU’s participation in talks to modernize the ECT, confirming its decision during a meeting on July 2, 2019.