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Phase 2 of the UNCITRAL ISDS Review: Why “other matters” really matter

UNCITRAL conferred a broad mandate on Working Group III to consider possible reform of ISDS. In Phase 1 governments identified and considered concerns about ISDS. Phase 2, where they consider whether reform is desirable in light of those concerns, is well advanced. The next meeting in New York in April 2019 is expected to conclude this phase and decide how to pursue the final phase, in which governments will develop any relevant solutions to recommend to the Commission. This note addresses three issues at the heart of the legitimacy crisis confronting the international investment regime that should inform the remainder of Phase 2.

The 2018 Draft Dutch Model BIT: A critical assessment

On May 16, 2018, the Dutch Ministry of Foreign Affairs published its new draft model bilateral investment treaty (BIT). The draft model, which remained available for public comment until June 18, 2018, is intended to replace the 2004 model BIT and be used for renegotiation of the 79 existing Dutch BITs with non-EU countries and negotiation of future agreements.

The Case Against Third-Party Funding in Investment Arbitration

Third-party litigation funding (TPF) is a rapidly expanding industry composed of speculative investors who invest in a legal claim for control of the case and a contingency in the recovery. In the wake of the global financial crisis and the demand by speculative finance for new investment vehicles, TPF has discovered the regime of bilateral investment treaties (BITs) with investor–state dispute settlement (ISDS) mechanisms.

Achmea: The Beginning of the End for ISDS in and with Europe?

Current and future investment treaties and chapters involving EU member states or the Union itself may be profoundly impacted by a landmark ruling of the European Court of Justice (ECJ). In this piece, the author explores the judgement from an EU constitutional point of view and analyzes potential consequences. Did the Achmea ruling come as a surprise to EU law insiders?

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.

Is ISDS in EU Trade Agreements Legal under EU Law?

Legality of investor–state dispute settlement (including in the form of an Investment Court System) in EU trade agreements under EU law is a contentious issue. This article details four legal objections raised by academics and legal experts, and discusses the potential for a legal challenge of ISDS under EU law.

The Law of Investment Treaties

The book examines the law of international investment treaties, specifically in relation to its origins, structure, content, and effect, as well as their impact on international investors and investments, and the governments that are parties to them.