ISDS

An Interview with Luis Guillermo Vélez – Director-General of Colombia’s National Agency for the Legal Defense of the State

On the heels of our 11th Annual Forum of Developing Country Investment Negotiators, we interviewed Luis Guillermo Vélez, Director-General of Colombia’s National Agency for the Legal Defense of the State (ANDJE), to capture his experiences on investment negotiations and disputes, his expectations for investment reform processes and views on the value of the Forum.

News  |  April 24, 2018

UNCITRAL Working Group III meets in New York to continue ISDS reform discussions

The 35th session of Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) takes place April 23–27, 2018

News  |  April 24, 2018

Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) signed

On March 8, 2018, the CPTPP was signed in Santiago, Chile. The free trade agreement involves 11 countries in the Pacific region: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.

Government Regulatory Space in the Shadow of BITs: The Case of Tanzania’s Natural Resource Regulatory Reform

Tanzania passed three new laws in July 2017 that significantly change the regulatory landscape governing natural resources. The reforms are aimed at ensuring that foreign investment benefits Tanzanian citizens.From an African perspective, this article argues that it is time to rethink investment treaty regimes to ensure that they do not hinder much-needed reforms.

UNCTAD’s 2017 High-level IIA Conference: Moving Forward on Addressing Older-Generation International Investment Agreements

Over 300 experts gathered in Geneva to take stock of the sustainable development-oriented reform of the investment treaty regime and discuss policy options for modernizing the existing stock of older-generation treaties. Participants recognized that multilateral collaboration would be key to addressing the complex IIA regime.

Review of The Political Economy of the Investment Treaty Regime

In their new book, Jonathan Bonnitcha, LaugePoulsen and Michael Waibel develop a coherent structure for policy analysis of investment treaties that should attract interest as governments review their treaty policies. It argues that investment treaties as currently applied often appear poorly tailored to address identifiable economic concerns.

News  |  December 21, 2017

UNCITRAL Working Group III holds first meeting on possible reform of ISDS

During the week of November 27–December 1, 2017, Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) held its first meeting on possible reform of investor–state dispute settlement (ISDS).

News  |  December 21, 2017

NAFTA 2.0: Canada, Mexico and U.S. negotiation rounds move into the first quarter of 2018

The three parties to the North American Free Trade Agreement (NAFTA) held the third, fourth and fifth rounds of renegotiation (Ottawa, September 23–27; Arlington, October 11–17; and Mexico City, November 17–21). The next round of NAFTA renegotiations is scheduled for January 23–28, 2018 in Montreal.

News  |  December 21, 2017

TPP-11 ministers agree on core elements of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

On November 11, 2017, in Da Nang, Vietnam, ministers of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam “agreed on the core elements of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).”

Awards  |  December 21, 2017

ICSID tribunal affirms jurisdiction over dispute between Chinese construction firm and Yemen

Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30

Awards  |  December 21, 2017

Claims brought by a company controlled by an Egyptian billionaire against Algeria are held inadmissible

Orascom TMT Investments S.à r.l. v. People’s Democratic Republic of Algeria, ICSID Case No. ARB/12/35

Awards  |  December 21, 2017

UNCITRAL tribunal dismisses allegations of Hungarian investor’s bribery and refuses to set aside contract with Croatia

The Republic of Croatia v. MOL Hungarian Oil and Gas Plc, PCA Case No 2014-15

Adjudicator Compensation Systems and Investor–State Dispute Settlement

This paper examines compensation systems for adjudicators and dispute settlement administrators in investor–state dispute settlement (ISDS).

Investor–State Arbitration and Human Rights

This book examines the interrelations between human rights and international investment law and discusses whether and how human rights arguments may be presented in the course of arbitral proceedings based on investment treaties.

A Look into China’s Slowly Increasing Appearance in ISDS Cases

China has sustained robust inbound and outbound flows of foreign direct investment and expanded its web of investment treaties. This note sheds light on the country’s appearance in investment treaty cases in the past decade, either as home or host state.

Investment Treaties and the Internal Vetting of Regulatory Proposals: A Case Study from Canada

Does the prospect of foreign investor claims against countries in investor–state arbitration lead to regulatory chill? The authors asked officials whether ISDS contributed to changes in the internal vetting of government decisions on environmental protection.

News  |  September 26, 2017

Report on third-party funding in international arbitration opened for public comment

The International Council for Commercial Arbitration (ICCA)–Queen Mary Task Force on Third-Party Funding in International Arbitration opened its draft report for public comment.

Awards  |  September 26, 2017

Argentina ordered to pay over USD320 million for unlawful expropriation in airlines case

Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID Case No. ARB/09/1

Awards  |  September 26, 2017

WNC v. Czechia: tribunal dismisses expropriation claim and determines that it has no jurisdiction over all other claims

WNC Factoring Limited v. The Czech Republic, PCA Case No. 2014-34

Can Bolivian State-Owned Companies Submit to International Arbitration? Analyzing Bolivia’s Intricate Legal Framework on Foreign Investment

The Bolivian government has enacted three laws—on investment, arbitration and state-owned companies—that reflect the country’s public policy on domestic and foreign investment. Investing in Bolivia requires a careful reading of the three new laws.

The Settlement of Investment Disputes: A Discussion of Democratic Accountability and the Public Interest

In the context of disputes involving governments, settlement agreements threaten accountability, respect for the rule of law, transparency and respect for citizens’ rights and interests. Any reform agenda must cover settlements and the policy issues they raise.

News  |  March 13, 2017

SIAC Investment Arbitration Rules come into effect; new SCC rules include appendix on investment treaty disputes

On January 1, 2017, the Investment Arbitration Rules of the Singapore Investment Arbitration Centre (SIAC) came into effect. Among the highlights are provisions on early dismissal of claims and defences, submissions by non-disputing parties and mandatory disclosure of third-party funding arrangements. The tribunal may consider such arrangements when apportioning costs. The 2017 Arbitration Rules of the Stockholm Chamber […]

News  |  March 13, 2017

European Union and Canada co-host discussions on a multilateral investment court

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 […]

ITN  |  March 13, 2017

Awards and Decisions

ICSID tribunal dismisses claims brought against Indonesia based on forged mining licences Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and ICSID Case No. ARB/12/40 Inaê Siqueira de Oliveira [*] After rendering separate decisions on jurisdiction¾one for the case brought by British company Churchill Mining PLC under the United […]

ICSID tribunal dismisses claims brought against Indonesia based on forged mining licences

Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and ICSID Case No. ARB/12/40  After rendering separate decisions on jurisdiction—one for the case brought by British company Churchill Mining PLC under the United Kingdom–Indonesia bilateral investment treaty (BIT), and another for Australian company Planet Mining Pty. Ltd.’s case under […]

Pac Rim v. El Salvador: all claims dismissed; OceanaGold to pay US$8 million in costs

Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12 On October 14, 2016, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) dismissed on their merits all claims by Pac Rim Cayman LLC (Pac Rim) against El Salvador. The tribunal ordered the mining company—currently owned by Australian-Canadian OceanaGold—to […]

India’s Joint Interpretive Statement for BITs: An Attempt to Slay the Ghosts of the Past

The Government of India has proposed a Joint Interpretative Statement to its bilateral investment treaty (BIT) partners. The statement clarifies key substantive and procedural provisions, bringing them more in line with India’s new foreign investment policy.

UNCTAD’s International Investment Agreements Conference 2016: Taking IIA Reform to the Next Level

As part of the World Investment Forum (WIF) 2016,[1] negotiators of international investment agreements (IIAs) and various stakeholders convened at the High-Level IIA Conference on July 19, 2016 in Nairobi, Kenya. Some 50 country delegates, parliamentarians, officials of international organizations and civil society representatives discussed the first phase of IIA reform and how to move […]

ITN  |  December 12, 2016

News in Brief

Trump election affects mega-regional negotiations including TTIP, TPP and RCEP

Brazil and India initial Bilateral Investment Treaty (BIT); text yet to be published

CETA signed; Canada and European Union to “work expeditiously” on creating a Multilateral Investment Court

News  |  December 12, 2016

Brazil and India initial bilateral investment treaty (BIT); text yet to be published 

During the 10th Annual Forum of Developing Country Investment Negotiators, held in Colombo, Sri Lanka, from November 7 to 10, representatives from Brazil and India announced that they had recently initialled a bilateral investment agreement (BIT).

News  |  December 12, 2016

CETA signed; Canada and European Union to “work expeditiously” on creating a Multilateral Investment Court

On October 30, during the 16th European Union–Canada Summit held in Brussels, the two negotiating partners signed the Comprehensive Economic and Trade Agreement (CETA), after seven years of negotiations.

ITN  |  December 12, 2016

Awards and Decisions

Venezuela to Pay Us$1 Billion For Expropriating Canadian Mining Company’s Investment

ICSID Tribunal dismisses MFN Clause in WTO GATS as a means of importing Senegal’s consent to arbitration from third party BIT

PCA tribunal deemed acts of Polish Agricultural Property Agency not attributable to Poland

Claimant not considered Investor due to interpretation of “Seat” under Cyprus–Montenegro BIT

Ecuador’s Levy on extraordinary oil profits at a 99% rate has breached Murphy’s legitimate expectations, decides PCA tribunal

Ecuador ordered by PCA tribunal to pay $24 million to Canadian Mining Company

Awards  |  December 12, 2016

ICSID tribunal dismisses MFN clause in WTO GATS as a means of importing Senegal’s consent to arbitration from third party BIT

Menzies Middle East and Africa S.A. and Aviation Handling Services International Ltd. v.
 Republic of Senegal, ICSID Case No. ARB/15/21- Suzy H. Nikièma

An interview with Lauge Poulsen, author of Bounded Rationality and Economic Diplomacy

The popularity of BITs in large parts of the developing world was due to a failure to appreciate their bite. Why would so many governments sign up to some of the most potent instruments in international economic law without even caring to check what the treaties meant?

ITN  |  May 16, 2016

News in Brief

US$50 billion awards against Russia in Yukos Cases are set aside by Dutch Court

TTIP draft to be prepared by July; ISDS being built based on both EU and US proposals

China – US BIT: ISDS to be included; ongoing negotiations on negative lists

Three mining disputes: The first investment disputes against Colombia come to light

Canada-European Union CETA re-concluded in February to incorporate the EU ICS proposal

Second ICSID claim filed against Uruguay; Philip Morris decision still pending

Singapore International Arbitration centre releases investment arbitration rules

News  |  May 16, 2016

TTIP draft to be prepared by July; ISDS being built based on both EU and U.S. proposals

Officials from the European Union and the United States gathered in Brussels for the 12th round of negotiations over the Transatlantic Trade and Investment Partnership (TTIP) from February 22 to 26.

News  |  May 16, 2016

China–United States BIT: ISDS to be included; ongoing negotiations on negative lists

Since 2008, China and the United States have undergone 24 negotiation rounds for a bilateral investment treaty (BIT).

News  |  May 16, 2016

Three mining disputes: the first investment disputes against Colombia come to light

On February 19, 2016, Cosigo Resources (Canada) and Tobie Mining and Energy (United States) submitted an arbitration request against Colombia under the Free Trade Agreements (FTAs) concluded by Colombia with the United States and Canada.

News  |  May 16, 2016

Canada–European Union CETA re-concluded in February to incorporate EU ICS proposal

Responding to EU requests, Canadian and EU officials reopened negotiations of the Comprehensive Economic and Trade Agreement (CETA) concluded in 2014 to reformulate the agreement’s investor–state dispute settlement (ISDS) clause. Re-concluded on February 29, the CETA now includes a standing tribunal and an appeals mechanism, in line with the EU ICS proposal, also included in the […]

News  |  May 16, 2016

Second ICSID claim filed against Uruguay; Philip Morris decision still pending 

On March 24, the International Centre for Settlement of Investment Disputes (ICSID) registered (Case No. ARB/16/9) a request for arbitration filed by U.S. telecom company Italba against Uruguay.

Awards  |  November 26, 2015

ICSID tribunal renders interim decision on Ecuador’s environmental counterclaim in long-running dispute

Perenco Ecuador Limited v. Republic of Ecuador, ICSID Case No. ARB/08/6

News  |  May 21, 2015

European Commission addresses TTIP concerns at European Parliament meeting

At a March 18, 2015 meeting at the European Parliament’s International Trade Committee, EU Trade Commissioner Cecilia Malmström presented four “preliminary ideas” to address public concerns about investment in the Transatlantic Trade and Investment Partnership (TTIP) in negotiation between the European Union and the United States. To prevent conflicts of interest resulting from the dual […]

News  |  May 21, 2015

TPP Investment Chapter: Re-edition of U.S. BIT, with ISDS carve-outs

A January 20, 2015 negotiating draft of the Investment Chapter of the Trans-Pacific Partnership Agreement (TPP) was leaked on March 25, 2015. The TPP has been under negotiation for five years by Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. Since the draft texts are not shared […]

UNCITRAL tribunal finds Canada’s environmental assessment breached international minimum standard of treatment and national treatment standard

William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL

The SADC MODEL BIT Template: Investment for Sustainable Development

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.