Analysis

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.

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.

Analysis  |  Thursday July 19th, 2012

Consent to Arbitration Through National Investment Legislation

National investment codes[1] may function as potential sources of international investment law. In other words, states may make unilateral undertakings within the framework of national investment legislations and, as a result, be considered as having “created international obligation[s]”.[2] The addressees of national investment legislations are foreign investors as well as the state that is itself […]

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 European Commission, the European Council of Ministers and the European Parliament—have been engaged in a vigorous debate over a new legal framework and negotiating positions […]

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 review that should be applied in evaluating those claims. Now that there is emerging clarity around the interpretation of the most common substantive investment treaty […]

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 arbitration tribunal highlights the relationship between international investment law and the regulation of public services. This essay illustrates areas of contention between the requirements of […]

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 straightforward: In many cases, the outcome of arbitral proceedings hinges, inter alia, on the intensity with which a tribunal scrutinizes the conduct of the investment’s […]

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 resolve investor-state disputes as a basis for protecting foreign-owned assets and ensuring the rule of law.[1] Others claim that the arbitration mechanism favours investors and […]

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 forum for the settlement of investment disputes signals these countries’ apparent loss of faith in the system and raises questions about the Convention’s fitness for […]

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 the fact that the country has a mammoth portfolio of BITs with more than 70 countries. News of the award broke only in February 2012.[i] […]

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.

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 said, this summer’s decision by a tribunal of the International Centre for Settlement of Investment Disputes (ICSID), which grants a bilateral investment treaty (BIT) jurisdiction […]

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 agreement (FTA). This signals significant changes in the investment regime found in the current generation of FTAs and bilateral investment treaties (BITs). Precisely what those […]

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 investors and host states. They perceived that ICSID arbitration proceedings had become problematic due to a lack of transparency and a failure to address the […]

Analysis  |  Thursday January 12th, 2012

The Netherlands: A Gateway to ‘Treaty Shopping’ for Investment Protection

It is an established fact that many transnational companies choose the jurisdiction of the Netherlands as a base for their global trade and investment operations, at least partly because of the country’s favourable tax regime that facilitates corporate tax avoidance strategies.[1] A new report by the Centre for Research on Multinational Corporations (SOMO) entitled “Dutch […]