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.
Exhaustion of local remedies
MARFIN INVESTMENT GROUP HOLDINGS S.A., ALEXANDROS BAKATSELOS AND OTHERS V. REPUBLIC OF CYPRUS, ICSID CASE NO. ARB/13/27
Multilateral ISDS Reform Is Desirable: What happened at the UNCITRAL meeting in Vienna and how to prepare for April 2019 in New York
UNCITRAL Working Group III has decided that multilateral reform is desirable to address various concerns regarding ISDS. Its next session will identify other concerns that may have been missed and prepare a work plan to develop solutions. This article reviews the UNCITRAL process so far and helps governments prepare for the upcoming session.
Tribunal finds Costa Rica’s measures to protect the environment did not breach FET or its expropriation obligations under CAFTA-DR
DAVID R. AVEN AND OTHERS V. REPUBLIC OF COSTA RICA, ICSID CASE NO. UNCT/15/3
Emilio Agustín Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7 (Decision on Jurisdiction) (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Decision available at https://www.italaw.com/cases/641 Keywords Dispute resolution provisions, exhaustion of remedies, most favoured nation treatment Key dates Request for […]
Making the Right to Regulate in Investment Law and Policy Work for Development: Reflections from the South African and Brazilian experiences
The right to regulate can be defined as states’ sovereign right to regulate in the public interest—their policy space. Because international investment agreements (IIAs) were created to limit certain aspects of countries’ right to regulate, the first wave of IIAs inhibited host countries’ regulatory experimentation that could be harmful to foreign investors’ rights.
Meaningful and effective remedies need to be provided to those injured by business-related human rights abuses. An intergovernmental working group at the United Nations is working to bridge gaps among stakeholders and negotiate a binding instrument on transnational corporations and other businesses with respect to human rights.
On December 13 and 14, 2016, the European Commission and the Canadian Government co-hosted exploratory discussions on establishing a multilateral investment court. Government representatives from several countries attended the closed-door meeting in Geneva. Upon concluding CETA, the two hosts had vowed to “work expeditiously” to create a permanent investment court, building on the ICS mechanism included in the agreement. The goal of […]
The South African Development Community (SADC) Model Bilateral Investment Treaty Template and Commentary was completed in June 2012 by Member States of the Community. Its completion marks the end of an 18 month process of consultations and drafting among government representatives and is intended as a guide for member states in future investment treaty negotiations.