Since 2001, ITN has offered news, analysis, and opinions on international investment law and its implications for sustainable development.
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 […]
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 […]
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.
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 […]
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 […]
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 […]
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 […]
Arbitrator sharply critical of majority decision in Italian bondholder claim against Argentina Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic, ICSID Case No. […]
Resources Investment Treaties and Why They Matter to Sustainable Development: Questions and Answers International Institute for Sustainable Development, December 2011 This handbook provides an accessible introduction to investment treaties and […]
Philip Morris files for arbitration over intellectual property dispute with Australia The tobacco company Philip Morris filed for arbitration on 21 November 2011, claiming the government of Australia’s regulations on […]
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 […]
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 […]
The public began to hunger for information about investment in the agriculture sector when a massive wave of foreign investment in farmland and water was triggered, in 2008, by a […]
The oil and gas industry faces increasingly strict environmental standards in developed countries. However, the majority of the world’s proven oil reserves are in developing countries and economies in transition, […]
More legal woes for Canada’s Feed-in Tariff program for renewable energy Canada could soon be faced with arbitration for alleged breach of its obligations under the North American Free Trade […]
Mass claim in Argentine bond dispute is granted ICSID jurisdiction Abaclat and Others (Case formerly known as Giovanna A Beccara and Others) and The Argentine Republic, Decision on Jurisdiction and […]
Resources International Investment Arbitration and Public Policy website launched A website launched in late September, called International Investment Arbitration and Public Policy (IIAPP), offers a searchable database of materials in […]
One of the more politically controversial aspects of international investment protection treaties is the liability of a State when political sub-divisions are found to have breached that State’s treaty obligations […]
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 […]
Canada and Dow Chemical settle claim over pesticide ban A controversial NAFTA investment dispute between Dow AgroSciences and the government of Canada was settled this May. The settlement agreement involves […]
Recent Publications Foreign Direct Investment in LDCs: Lessons Learned from the Decade 2001-2010 and the Way Forward UNCTAD, April 2011 This report, prepared in preparation of the Fourth United Nations […]
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 […]
For nearly two decades, the tobacco industry has used international investment rules to challenge governmentrestrictions on cigarette marketing. In 1994, R.J. Reynolds Tobacco Company threatened to bring a claim under […]
PDF – English (560 KB) – Français (550 KB) – Español (550 KB) Flip-Page – English – Français – Español In this issue: Philip Morris v. Uruguay: Will investor-state arbitration send restrictions on […]
With the seventh round of negotiations between Canada and the European Union over the Canada-EU Comprehensive Economic and Trade Agreement (CETA) completed this April, and the eighth round scheduled for […]
The Lisbon Treaty, in force since 1 December 2009, added Foreign Direct Investment (FDI) to the exclusive common commercial policy of the European Union, without foreseeing any transition measures. Today […]
Working group moves slowly on agreement for transparency in UNCITRAL Arbitration Rules A working group of the United Nations Commission on International Trade Law (UNCITRAL) met from 7-11 February 2011 […]
UK firm victorious in dispute with Russia, but damages much less than claimed RosInvestCo UK Ltd. v. The Russian Federation, SCC Case No. Arb. V079/2005 Lise Johnson In an award […]
Publications Newly published UNCTAD Series on Issues in International Investment Agreements II “Scope and Definition”, UNCTAD, March 2011 A new UNCTAD study titled “Scope and Definition” reviews how the concepts […]
While the concepts of sovereignty, human rights, the environment and the rule of law are often invoked in public debate about international investment treaties (IITs), there is relatively little discussion of the economic effects of such treaties.[1] One of the most powerful legal protections provided by IITs is the protection of foreign investor’s ‘legitimate expectations’ under fair and equitable treatment (FET) provisions, which are common to most IITs. This article draws on economic theory—specifically, the notion of moral hazard—to elucidate some of the problems with broader interpretations of the doctrine of legitimate expectations.
The last two decades have witnessed an exponential increase in arbitral disputes between investors and states under international investment treaties. UNCTAD reports 357 known registered cases by the end of 2009; of those, 202 cases—or 57 percent—were initiated after 2004.[1] Independent investment tribunals now regularly render binding decisions as to whether states have violated investment protection standards guaranteed under various bilateral and multilateral investment treaties—a phenomenon that has turned international investment law into one of the most dynamic fields of public international law.
This short essay discusses new evidence in the economics profession showing that capital controls are important macro-prudential measures that nations should have in their toolkit to prevent and mitigate financial crises. More importantly for this publication, it will be shown that United States trade and investment treaties do not reflect the emerging consensus on capital controls. There is a unique opportunity to rectify this problem as the United States finalizes its new model bilateral investment treaty (BIT) and moves forward on negotiations for a Trans-Pacific Partnership Agreement (TPP) with numerous Pacific Rim nations. Moreover, an opportunity for reform lies in the pending Congressional votes on Bush-era trade deals such as those with South Korea, Colombia, and Panama.
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.
English (PDF – 400 KB) – Français (PDF – 400 KB) – Español (PDF – 400 KB) In this issue: 2010 midterm congressional elections on the United States; Fairness and […]
The Republican victories in U.S. congressional elections on 2 November 2010 are widely assumed to have increased the odds that the Obama administration will proceed with new bilateral investment treaties (BITs) and free trade agreements (FTAs) containing investment chapters. But this assumption bear closer examination. The post-election situation is complex.
The 2010 World Investment Forum (WIF), held on 6-9 September 2010, in Xiamen, China, turned UNCTAD into the global gravity center for open, universal, inclusive and high-level international investment discourse and policy formation. Eight events and conferences were attended by more than 1,800 participants from 120 countries and 16 international organisations, among them nine heads of State, four heads of international organisations, 79 ministerial-level officials, and 116 senior business executives.
European Union institutions consider the EU’s future international investment policy Debate on the future of the European Union’s international investment policy is heating up as EU institutions weigh in with […]
Georgia loses dispute with Greek and Israeli oil investors Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia (ICSID Case Nos. ARB/05/18 and ARB/07/15) Martin D. Brauch Two oil […]
There has been recent interest in the use of quantitative research tools to evaluate the fairness and independence of investment arbitration. In this article, Professor Gus Van Harten critiques one of the most prominent studies to examine this question. While the study in question, “Development and Outcomes of Investment Treaty Arbitration” (2009), has been used in some policy circles to support the argument that investment arbitration functions fairly, Van Harten argues it has limitations that prevent such conclusions.
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.
Recent Publications The EU Approach to International Investment Policy after the Lisbon Treaty European Commission Directorate-General for Exernal Policies, Policy Department, 2010 This report provides analysis on the challenges and […]
*These are abridged versions of articles originally published by the independent news service Investment Arbitration Reporter (http://www.iareporter.com/). They are used with permission and may not be reproduced without the […]
Public Statement on the International Investment Regime Academics from 30 universities across 11 countries have lent their signature to a statement pronouncing concern that the international investment regime hampers the […]
Argentina on the hook for breach of Fair and Equitable Treatment Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal v. Argentine Republic (ICSID Case No. ARB/03/19) Lise […]
One fundamental principle of investor-State arbitration is the ability of parties to have their disputes resolved by independent and impartial arbitrators. In order to ensure adherence to this principle, laws and rules governing investor-State arbitrations grant parties the right to challenge arbitrators lacking these qualifications. Given the importance of ensuring arbitrator independence and impartiality, and as evidenced by the recent decision in and subsequent commentary on Vivendi v. Argentina, practitioners and stakeholders in investor-State arbitrations are devoting significant efforts to defining the substantive standards warranting arbitrator challenges, and to understanding what those standards require in practice.
With the often costly and far-reaching implications when investors use Bilateral Investment Treaties (BITs) to adjudicate claims against developing countries, governments in the developing world need powerful arguments to justify that these treaties are in their national interest. One notable contribution to this debate has recently been put forth by political scientists Jennifer Tobin and Mark Busch, who set out to investigate the link between BITs and preferential trade agreements (PTAs). Using statistical techniques, they analyse annual data on pairs of developing and developed countries between 1960 and 2004 and conclude that BITs “raise the prospects of getting a North-South PTA with all the deeper and reciprocal obligations that these entail.”
Tony Cole The aspect of international investment arbitration that is perhaps most consistently condemned by critics of the system is the role played in the resolution of investment disputes by […]
Ignacio Torterola In October, State delegations are expected to discuss the issue of transparency in the UNCITRAL Rules of Arbitration. Ignacio Torterola, ICSID Liaison at the Argentine Embassy in Washington, […]
IISD In October 2009, at its annual meeting in Madrid, the Mining Law Committee of the International Bar Association launched a project to develop a Model Mining Development Agreement (MMDA). […]
Ramon Torrent The Lisbon Treaty broadens European commercial policy in what marks the latest milestone in a long (and unfinished) journey in which the EC/EU has sought to extend its […]
