The Energy Charter Treaty modernization negotiations are due to begin later this year and a set of topics for parties to consider has already been announced. This piece examines the prospects for updating the ECT’s existing formulation of FET and analyzes how this standard has been interpreted in past arbitrations involving renewable energy disputes. The author argues in favour of including a requirement of investor due diligence as an attempt to help ensure that investors anticipate possible risks that may emerge from changes to a state’s regulatory framework.
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
Over the past two decades, stabilization provisions in investment contracts (and in the domestic law in some developing countries) became a popular demand of investors into developing countries. Rarely used and largely unconstitutional in most developed countries, these provisions essentially limit the ability of governments to have new laws and regulations apply to a foreign […]
Principles for responsible contracts: Integrating the management of human rights risks into State-investor contract negotiations
The UN shines a spotlight on business and human rights In July 2005, the then United Nations Secretary-General Kofi Annan appointed John Ruggie as his Special Representative on Business and Human Rights. Ban Ki-Moon continued the appointment, and this June Ruggie delivered his final report to the Human Rights Council. Ruggie’s mandate is highly significant […]
In recent years, economic liberalisation, improved transport and communication systems, and the global demand for energy, minerals and agricultural commodities have fostered investment in agriculture, mining and petroleum projects in many poorer countries. For some commentators, this trend provides new opportunities to promote growth, generate public revenues and create employment in countries that have limited […]
Swiss claimant fails jurisdictional stage for not qualifying as an ‘investor’ Alps Finance and Trade AG v. Slovak Republic Damon Vis-Dunbar A claim against the government of Slovakia has failed after a three-member tribunal declined jurisdiction. The tribunal determined that the claimant was not an “investor” as intended by the Switzerland-Slovakia bilateral investment treaty. In […]
Two international projects relating to foreign investment and sustainable development (SD) were completed in the past two months. These two projects individually and together show the emerging pathways to properly considering the linkages between new investments and SD in the host state and community. The first of these projects to be launched, on 4 April […]
To a significant extent the site of debate about the terms of globalization and its relationship to the regulatory state has shifted from the World Trade Organization to the world of investment treaties and arbitration. Investment treaties typically confer on a foreign investor a right to sue a host state that has allegedly failed to comply with a number of substantive obligations, typical among them the requirement to compensate for expropriation, fair and equitable treatment, and national treatment.
It is no longer a secret that there is a new wave of foreign investment in farmland, predominantly in Africa. An explosion of media reports and a series of studies by the World Bank, Food and Agricultural Organisation (FAO), International Fund for Agricultural Development (IFAD), United Nations Conference on Trade and Development (UNCTAD) and International Institute for Environment and Development (IIED), have confirmed the scale and consequences of this new influx of foreign investment. The World Bank report, by far the most comprehensive, found that reported deals amounted to 45 million hectares in 2009 alone.
Perú gana demanda multimillonaria del CIADI sobre un acuerdo de estabilización presentada por una firma americana de energía
Por Fernando Cabrera Díaz 23 de Diciembre de 2008 La República de Perú se ha defendido con éxito en contra de una demanda iniciada por la firma Aguaytia Energy LLC (AEL) con sede en Delaware. AEL ha reclamado US$142 millones en compensación por lo que según alega fue la violación de un acuerdo de estabilización […]
By Fernando Cabrera Diaz 23 December 2008 The Republic of Peru has defended itself successfully against a claim initiated by Delaware-based Aguaytia Energy LLC (AEL). AEL had sought US$142 million as compensation for what it claimed was Peru’s violation of a stabilization agreement. However, the Tribunal disagreed and instead held that the stability agreement did […]
By Damon Vis-Dunbar 21 November 2008 Tanzania is losing large amounts of money from foreign investment in the mining sector due to low royalty rates and generous tax exemptions, while contracts with so-called stabilization clauses have locked the government into this tax regime for up to 50 years, says a report published by a consortium […]
An interview with Professor John Ruggie, United Nations Special Representative of the Secretary General on Business & Human Rights
1 October 2008 Professor John Ruggie was appointed to be Special Representative of the United Nations Secretary-General on business & human rights in 2005. Prof. Ruggie is also the Kirkpatrick Professor of International Affairs and Weil Director of the Sharmin and Bijan Mossavar Rahmani Center for Business and Government, as well as Affiliated Professor in […]
Por Elizabeth Whitsitt 29 de Agosto de 2008 En uno de los dos laudos dictados por el CIADI en agosto donde la firma estadounidense Duke Energy se encuentra involucrada, un tribunal declaró culpable a la República de Perú frente a Duke Energy International Peru Investments No. 1 Ltd. (DEI Bermuda) por daños que alcanzan los […]
Duke Energy International Peru Investments No. 1 Ltd. v. Republic of Peru: Foreign investors in Peru are guaranteed tax stability
By Elizabeth Whitsitt 29 August 2008 In one of two ICSID awards handed down in August involving the US firm Duke Energy, a Tribunal has found the Republic of Peru liable to Duke Energy International Peru Investments No. 1 Ltd. (DEI Bermuda) for damages totaling US$ 18,440,746 plus interest after the SUNAT, Peru’s National Tax […]