There are several efforts underway at multiple levels—national, bilateral, regional and multilateral—aimed at reforming theregime. These reform efforts are operating in parallel to developments in other areas of international investment governance, some of which have advanced quickly over the past year, including the structured discussions on investment facilitation at the , as well as efforts in the UN context to craft a binding treaty on business and human rights. This year’s High-Level IIA Conference assessed the progress made to date since launching UNCTAD’s 10 Options for Phase 2 of IIA Reform, looking at trends across multiple areas of international investment governance, as well as across world regions. This Insight summarizes the key takeaways from the 2019 event and considerations for Phase 2 going forward.
The 2016 decision on Argentina’s counterclaim in the Urbaser case provided a frustrating reminder that the international legal regime as it stands is insufficient in holding businesses accountable for human rights violations. Efforts are underway within the UN context to help address this challenge, though how effective the legally binding treaty on business and human rights will be in reconciling the human rights and investment law regimes will depend significantly on its design. It will also depend on how adjudicators treat it relative to other treaties, among other factors. ThisInsight provides an update on the negotiating state of play for this binding treaty, based on the October 2019 talks in Geneva. It highlights important considerations for negotiators, drawing from lessons learned in international investment law and related areas.
The upcoming meeting of Working Group III ofin January 2020 will be a valuable opportunity to intensify the push for real reform of . This Insight provides an update from the October 2019 discussions in Vienna, where countries set out a workplan for their upcoming talks on reform solutions, outlining when to discuss which options. The authors review lessons learned to date and look ahead to the topics slated for discussion in January 2020: a stand-alone review or appellate mechanism; a standing ; and the selection and appointment of arbitrators and adjudicators. Taking a deep dive into each, they highlight key issues for negotiators to consider.
From November 25 to 27, 2019, the Office of the UN High Commissioner for Human Rights hosted this year’s United Nations Forum on Business and Human Rights in Geneva, Switzerland.
TheHigh-Level Conference, held in Geneva, Switzerland, in November 2019 featured a session dedicated to investment facilitation and promotion.
On November 6, 2019, the Energy Charter Conference confirmed that it would hold the first session of its “Modernization Group” on December 12, 2019, kicking off the process to revise the decades-old.
Leaders from 15 of the countries negotiating the Regional Comprehensive Economic Partnership () announced on November 4, 2019, that they had clinched a deal that would govern trade and investment across a wide swath of the Asia–Pacific region.
The joint initiative being pursued by 92members on developing a multilateral framework on investment facilitation has reached a new phase, with various new participants involved and a push for significant progress ahead of a December stocktaking meeting.
A long-simmering row over plans for two new pipelines that would carry natural gas from Russia into Germany has advanced quickly in recent months, after gas company Nord Stream 2 submitted a notice of arbitration against theunder the on September 26, 2019.
A set of documents purporting to capture the discussions of the United States–United Kingdom Trade and Investment Working Group from 2018 has recently been released into the public domain.
Substantial damages awarded to Perenco for FET breach and expropriation; Ecuador also awarded compensation under environmental counterclaim
Perenco Ecuador Limited v. Republic of Ecuador,Case No. ARB/08/6
Michael Ballantine and Lisa Ballantine v. The Dominican Republic,Case No. 2016-17
Belenergia S.A. v. Italian Republic,Case No. ARB/15/40
Glencore International A.G. and C.I. Prodeco S.A. v. Republic of Colombia,Case No. ARB/16/6
As claimants lacked a protected investment and could not import consent to arbitration via MFN, UNCITRAL tribunal dismisses case against Mauritius on jurisdictional grounds
Professor Christian Doutremepuich and Antoine Doutremepuich v. Republic of Mauritius,Case No. 2018-37
Lao Holdings N.V. v. Lao People’s Democratic Republic,Case No. ARB(AF)/12/6, and Sanum Investments Limited v. Lao People’s Democratic Republic, , Case No. 2013-13
Tribunal finds Pakistan breached FET, expropriation and non-impairment obligations in the context of a mining joint venture with Australian investor Tethyan Copper Company
Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan,Case No. ARB/12/1
In yet another renewable energy case, Spain held liable for FET breach for frustrating French and Luxembourger investors’ legitimate expectations under the ECT
Cube Infrastructure Fund SICAV and Others v. The Kingdom of Spain,Case No. ARB/15/20
United Utilities (Tallinn) BV and Aktsiaselts Tallinna Vesi v. Republic of Estonia,Case No. ARB/14/24
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 multilateralreform at 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.