ITN

The Evolving BIT: A Commentary on Canada’s Model Agreement

While the revision that gave birth to the United States’ Model bilateral investment treaty in April 2012 has been closely observed and commented upon, much less attention has been paid to changes made to the Canadian Model BIT.

Investment Treaties and the Search for Market Access in China

The inclusion of market access commitments in investment agreements has proven divisive. This article looks at where China stannds on this issue.

The Quest for Commodities: Chinese Investment in Farmland

China is often singled out as one of the big ‘land grabbers’, although it strongly refutes these claims. We set out to verify whether reports about Chinese investments were accurate or not.

Smart Flexibility Clauses in International Investment Agreements

A major challenge for investment treaty designers and adjudicators is to separate opportunistic behavior by host states that should be sanctioned under international law from bona fide public policy measures that should not. This article suggests that International Investment Agreements need to be both ‘smarter’ and more ‘flexible’ to better make that distinction. It draws on economic contract theory as a basic framework, and political economy theory for fine-tuning.

ITN  |  mars 25, 2013

Resources and Events

Resources Chinese Outward Investment: An Emerging Policy Framework Nathalie Bernasconi-Osterwalder, Lise Johnson, Jianping Zhang, IISD, 2012 This book is an English-language compilation covering over 80 primary texts relevant to Chinese […]

ITN  |  mars 25, 2013

Awards and Decisions

Claim against Venezuela dismissed; State acted legitimately in response to contractual violations Vannessa Ventures Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)04/6 Damon Vis-Dunbar A claim by Vannessa […]

ITN  |  mars 25, 2013

News in Brief

New Rules on Transparency in UNCITRAL Investor-State Arbitration Agreed in New York A United Nations working group agreed in February to new rules that will make at least some investor-state […]

ITN  |  mars 25, 2013

Arbitrators’ Role in the Recent Investment Arbitration Boom

In the 2012 report Profiting from Injustice, jointly published by Corporate Europe Observatory and the Transnational Institute, we boldly asserted that law firms, arbitrators and third-party funders have, over the […]

Enabling Risky Business: Human Rights and the Role of Officially Supported Trade Finance and Investment Guarantees

The expanded role played by Export Credit Agencies (ECAs) since the global financial crisis has not been matched with stronger rules that address the human rights-related impacts of ECA financed projects. Given narrow set of regulations that currently apply to ECAs, this brief article argues that more needs to be done to ensure that ECA financed projects do not cause harm to home states.

Remedies in Investor-State Arbitration: A Public Interest Perspective

While an extensive body of literature maps the tensions between regulatory sovereignty and investor protection in international investment law and analyses the balancing of private and public interests in arbitral practice, only a small sub-set of this literature makes reference to public interest considerations at the remedies stage of the investor-state arbitration process.

A Distinction Without a Difference? The Interpretation of Fair and Equitable Treatment Under Customary International Law by Investment Tribunals

Broad interpretations of the standard for fair and equitable treatment (FET) by investment tribunals have become a source of increasing controversy. In theory, linking FET to customary international law (CIL), which is formed through the “general and consistent practice of states” that they follow out of a sense of legal obligation (opinio juris), results in a standard of protection that is more deferential to the regulatory authority of governments than the “autonomous” standard. In practice, however, investment tribunals continue to construe even CIL-based FET provisions to impose broad limits on government authority by accepting, without any evidence of state practice or opinio juris, the pronouncements of previous tribunals as definitive evidence of the standard under CIL.

ITN  |  janvier 14, 2013

Awards and Decisions

US$1.76 billion dollar award levied against Ecuador in dispute with Occidental; tribunal split over damages   Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, […]

ITN  |  janvier 14, 2013

News in Brief

Canada receives investor complaints over provincial energy and environment policies In recent months the government of Canada has received two complaints related to energy and environmental policies adopted by its […]

ITN  |  janvier 14, 2013

Resources and Events

Resources Foreign Direct Investment and Human Development: The Law and Economics of International Investment Agreements Edited by Olivier De Schutter, Johan Swinnen, Jan Wouters. Routledge, November 2012 This book presents […]

The IMF’s New Transfers Policy and the Trading System

In late 2012, the International Monetary Fund (IMF) officially endorsed an “institutional view” on the management of capital flows. This short note provides an overview of the new IMF view, pinpoints how it may conflict with country obligations under trade and investment treaties, and discusses remedies for reform.

UNCTAD’s Investment Policy Framework for Sustainable Development: Potential and Issues

The United Nations Conference on Trade and Development (UNCTAD) has released its Investment Policy Framework for Sustainable Development (IPFSD). This article engages in an independent assessment of the IPFSD.

The Sixth Annual Forum of Developing Country Investment Negotiators: Understanding and Harnessing the New Models for Investment and Sustainable Development

The Sixth Annual Forum of Developing Country Investment Negotiators was held on October 29-31, 2012, in Port of Spain, Trinidad and Tobago. The forum encourages participants to develop their own critical perspectives on issues which are germane to the negotiation of international investment treaties.

Integrating Sustainable Development into International Investment Agreements: A Commonwealth Guide for Developing Country Negotiators

In November 2012 the Commonwealth Secretariat completed a practical guide, titled “Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Countries,” to help enable developing countries to design international investment agreements that support their development needs.

Peru’s State Coordination and Response System for International Investment Disputes

Just as Peru has joined the global trend of concluding investment protection agreements, the country has also been no stranger to the considerable increase in international investment disputes observed in recent years. To address this growth in international investment arbitration in line with its investment attraction policy, Peru has created a system for efficiently and effectively resolving potential disputes.

ITN  |  novembre 27, 2012

SADC Model BIT

SADC Model BIT

ITN  |  octobre 30, 2012

Resources and Events

Resources International Arbitration Case Law This website is a private, not-for-profit academic endeavour, in partnership with the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of […]

ITN  |  octobre 30, 2012

Awards and Decisions

Majority declines jurisdiction in claim against Argentina over domestic litigation requirement Daimler Financial Services AG v. Argentine Republic, ICSID Case No. ARB/05/1 Damon Vis-Dunbar A claim against Argentina by a […]

ITN  |  octobre 30, 2012

News in Brief

South Africa begins withdrawing from EU-member BITs South Africa has terminated its bilateral investment treaty with Belgium and Luxembourg, and intends to phase out other treaties with European countries. In […]

Towards a New Generation of Investment Policies: UNCTAD’s Investment Policy Framework for Sustainable Development

On 12 June 2012, the United Nations Conference on Trade and Development launched its Investment Policy Framework for Sustainable Development. IPFSD comes at a time when the international investment regime is in a state of « transition » and when an increasing number of governments are reviewing their investment-related regulatory frameworks, both at the national and international levels.

Dealing With the Increasing Complexity of Investment-Related Treaties: A Framework and Some Policy Guidelines

Bilateral investment treaties used to be boilerplate: taken out of a drawer before official visits; signed with pomp and circumstance but not much attention to precise wording. Today, the diversity and ramifications of investment-related treaties are staggering.

ITN Quarterly October 2012

PDF – English (914 KB) – Français (1 MB) – Español (1 MB) Investment Treaties and Investor Corruption: An Emerging Defense for Host States?; Dealing With the Increasing Complexity of […]

Inching Towards Consensus: An Update on the UNCITRAL Transparency Negotiations

From October 1-5, 2012, a working group of the United Nations Commission on International Trade Law met in Vienna to continue work on how to ensure transparency in treaty-based investor-state arbitration. It was the working group’s fifth week-long meeting on the topic, but will not be the last.

ITN  |  octobre 19, 2012

Investment Treaties and Investor Corruption: An Emerging Defense for Host States?

Bilateral investment treaties are famously asymmetric. They grant investors rights but not obligations, while imposing upon states obligations unaccompanied by rights. Recent cases suggest, however, that BIT tribunals are poised to recognize a defense to state liability that, in effect, imposes upon investors the obligation to avoid involvement in public corruption in the course of making a treaty-protected investment. Despite these suggestive jurisprudential trends, however, the specific contours of the emerging corruption defense are uncertain.

Analysis of the European Commission’s Draft Text on Investor-State Dispute Settlement for EU Agreements

With the European Union’s Lisbon Treaty, in force since December 2009, foreign direct investment fell under the exclusive competence of the European Union (EU). Since then the three European institutions—the […]

The Source for Determining Standards of Review in International Investment Law

After several cases assessing whether state regulation in the public interest gives rise to a claim under an investment treaty, commentators have begun asking questions about the applicable standard of […]

ITN  |  juillet 19, 2012

Resources and Events

UNCTAD’s Investment Policy Framework for Sustainable Development (IPFSD) UNCTAD, June 2012 The United Nations Conference on Trade and Development (UNCTAD) has established a set of principles for investment policymaking, guidelines […]

ITN  |  juillet 19, 2012

Awards and Decisions

Claim against Slovakia dismissed, as tribunal complains of poorly presented case  Jan Oostergetel and Theodora Laurentius v. The Slovak Republic Damon Vis-Dunbar A tribunal has dismissed a claim by a […]

ITN  |  juillet 19, 2012

News in Brief

Vattenfall launches new claim against Germany The Swedish state-run energy firm Vattenfall has launched a second claim against Germany. The claim stems from Germany’s May 2011 decision to phase-out its […]

ITN  |  juillet 19, 2012

Trends in Investor Claims Over Feed-in Tariffs for Renewable Energy

As governments increasingly turn to renewable energy to mitigate climate change, domestic climate-related policies in the form of price support measures such as feed-in tariffs (FiTs) have played an important […]

Investment Law and Public Services: Clashes of Interests or Peaceful Coexistence?

[T]he Tribunal must balance the legitimate and reasonable expectations of the Claimants with […] [the] right to regulate the provision of a vital public service.[1] This quote from an investment […]

Deference or No Deference, That is the Question: Legitimacy and Standards of Review in Investor-State Arbitration

The appropriate standard of review to be applied in investor-state arbitration—as well as in other dispute settlement contexts, for that matter—remains a recurrent and much debated topic.[1] The reason is […]

ITN Quarterly July 2012

PDF – English (686 KB) – Français (694 KB) – Español (576 KB) In this issue: Deference or No Deference, That is the Question: Legitimacy and Standards of Review in […]

ITN  |  avril 13, 2012

Resources and Events

Resources Fair and Equitable Treatment: UNCTAD Series on Issues in International Investment Agreements II UNCTAD, March 2012 This paper explores how the concept of Fair and Equitable Treatment (FET) has […]

ITN  |  avril 13, 2012

News in Brief

Australia to reject investor-state dispute resolution in TPPA The Australian government will not sign on to investor-state dispute resolution provisions in the Trans-Pacific Partnership Agreement (TPPA), according to an Australian […]

ITN  |  avril 13, 2012

Awards and Decisions

US court vacates award against Argentina BG Group Plc v. Argentina Lise Johnson A US appellate court has vacated an award against Argentina in a decision that may give investors […]

ITN  |  avril 13, 2012

Case Note: How Chevron v. Ecuador is Pushing the Boundaries of Arbitral Authority

The arbitral tribunal in Chevron v. Ecuador[1] has taken a series of steps in recent months suggesting that it has a broad view of its authority. But while it may […]

ITN  |  avril 13, 2012

Negotiations on UNCITRAL Transparency Provisions Reach Critical Juncture

Negotiations over transparency in investor-state arbitrations have reached a critical juncture heading into an October 2012 meeting in Vienna. During the last meeting in February 2012, a large number of […]

Pro-Investor or Pro-State Bias in Investment-Treaty Arbitration? Forthcoming Study Gives Cause for Concern

Debates about investment treaties often raise questions about fairness and independence in international investment arbitration. Some observers argue that investment arbitration offers a neutral and impartial forum in which to […]

Venezuela’s Withdrawal From ICSID: What it Does and Does Not Achieve

In January 2012, the Bolivarian Republic of Venezuela denounced the ICSID Convention,[1] becoming the third country – after Bolivia and Ecuador – to do so. The exit from the global […]

The White Industries Arbitration: Implications for India’s Investment Treaty Program

In November 2011, an arbitral tribunal found the Republic of India guilty of violating the India-Australia bilateral investment treaty (BIT). It is the first known investment-treaty ruling against India, despite […]

Defining an ICSID Investment: Why Economic Development Should be the Core Element

A dispute will only fall within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID) if it directly arises out of an ‘investment’, as is provided by Article 25(1) of the Convention for the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). However, not only does the ICSID Convention fail to provide any definition of what constitutes an ‘investment’, the drafters of the ICSID Convention, in fact, made an express decision not to include such a definition. This absence has given rise to interesting issues of interpretation as ICSID tribunals have sought to arrive at an understanding of how the term ‘investment’ should be properly understood for the purposes of the ICSID Convention.

ITN Quarterly December 2011/January 2012

PDF – English (521 KB) – Français (433 KB) – Español (477 KB) Flip-Page – English – Français – Español In this issue: Mission Creep: International Investment Agreements and Sovereign Debt […]

Mission Creep: International Investment Agreements and Sovereign Debt Restructuring

As members of the Eurozone are now acutely aware, the lack of a sovereign debt restructuring regime is one of the most glaring gaps in the international financial architecture. That […]

Investment Developments in the Trans-Pacific Partnership Agreement

Advocates for the Trans-Pacific Partnership Agreement (TPPA) describe it as a “new generation agreement for the 21st century” that will go further behind the border than any previous free trade […]

UNASUR Arbitration Centre: The Present Situation and the Principal Characteristics of Ecuador’s Proposal

Five years ago, some Latin American countries started a critical movement against the International Centre for Settlement of Investment Disputes (ICSID), the World Bank institution for arbitrating disputes between foreign […]