Delegates involved in the UNCITRAL Working Group III process on multilateral ISDS reform have until July 15, 2019 to submit to the UNCITRAL Secretariat their reform proposals and the timing for when such items may be considered in an overarching project schedule. That schedule would help guide the working group under Phase 3 of its mandate, which is devoted to crafting solutions to ISDS-related concerns.
The EC released on May 14 a set of draft negotiating directives setting out its proposed approach in “modernizing” the Energy Charter Treaty (ECT).
The African Continental Free Trade Area (AfCFTA) entered into force on May 30, 2019, with the first phase of the deal taking effect for 24 countries. An extraordinary summit on the trade agreement is planned for July 7, 2019 in Niamey, Niger, while Phase II negotiations on intellectual property rights (IPRs), investment and competition policy are expected to take at least another year.
The CJEU has deemed that the ICS included in the Canada–EU CETA is consistent with EU law, issuing its final opinion on April 30, 2019.
The Mexican Senate approved the implementing legislation for the United States–Mexico–Canada Agreement (USMCA) on June 19, 2019, by an overwhelming majority of 114 votes in favour, with less than a dozen against or abstaining.
Leaders from China and the EU have pledged to finalize negotiations for their Comprehensive Investment Agreement next year, announcing their target date and further details about the process during a summit in Brussels, Belgium, on April 9, 2019.
Australia has signed a new BIT with Uruguay and an investment deal with Hong Kong. The agreements feature some changes or clarifications to past deals’ provisions on ISDS and on government regulations designed to fulfill public policy objectives, such as health.
Claims against Albania dismissed by ICSID tribunal as the Anglo-Adriatic Group did not have a protected investment
ANGLO-ADRIATIC GROUP LIMITED V. REPUBLIC OF ALBANIA, ICSID CASE NO. ARB/17/6
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
ICSID tribunal upholds Panama’s plea of illegality in the making of an investment in a tourism project located in an Indigenous area
ÁLVAREZ Y MARÍN CORPORACIÓN S.A., BARTUS VAN NOORDENNE, CORNELIS WILLEM VAN NOORDENNE, ESTUDIOS TRIBUTARIOS AP S.A. AND STICHTING ADMINISTRATIEKANTOOR ANBADI V. REPUBLIC OF PANAMA, ICSID CASE NO. ARB/15/14
India found in breach of BIT with Germany by UNCITRAL tribunal in respect of agreement for lease of electromagnetic spectrum
DEUTSCHE TELEKOM AG V. THE REPUBLIC OF INDIA, PCA CASE NO. 2014-10
PL HOLDINGS S.À.R.L. V. REPUBLIC OF POLAND (SCC CASE NO. V2014/163)
Investors’ legitimate expectation claims against Italy dismissed due to the absence of specific commitments
BLUSUN S.A., JEAN-PIERRE LECORCIER AND MICHAEL STEIN V. ITALIAN REPUBLIC, ICSID CASE NO. ARB/14/3
ICSID tribunal constituted by virtue of an MFN clause holds Turkmenistan liable for FET breach for requiring investors to produce “smeta,” a cost estimate required by Turkmen law
GARANTI KOZA LLP V. TURKMENISTAN, ICSID CASE NO. ARB/11/20
Investment treaty arbitration is often expected to focus on technical issues. In practice, however, domestic political discussions and processes can have a major impact on investment disputes. The authors map out the variety of state conduct characterized by tribunals as politically motivated or influenced. They also examine the different ways in which arbitral tribunals have responded to host state conduct resulting from domestic political considerations.
The April 2019 deliberations on multilateral ISDS reform at UNCITRAL Working Group III were due to tackle a series of questions that emerged in Phase 2 of the process. This piece breaks down why the scope of these discussions should be expanded to include important concerns raised by developing countries, and describes three core issues that must not be ignored. These involve the right to participation by affected parties; the rule of law and domestic courts’ jurisdiction; and the chilling of sovereign states’ authority and responsibility to govern.
Enhancing Environmental Protection in International Investment Law Through the Integration of International Civil Liability Principles
Investor–state arbitration has repeatedly proven ineffective in addressing environmental damages that host states suffer as a result of investment activities. This piece examines what lessons can be learned from international civil liability conventions, which are specifically designed to ensure victims’ compensation in cases of environmental harm. The author then explores which principles from these conventions could be adapted for use in investment treaties.
Protecting Social Rights Using the Amicus Curiae Procedure in Investment Arbitration: A smokescreen against third parties?
Arguments submitted by an amicus curiae (a “friend of the court”) have become increasingly common in investment arbitration. Many of these arguments deal with internationally recognized social rights, such as the right to water or food. This piece considers the restrictive conditions on amici curiae admission, the frequent reference to social rights issues in amici briefs, and the challenges in presenting these social rights arguments. The author advances possible actions that amici and states can take to make their social rights arguments more effective in an investment law context.