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.
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.
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.
On July 17, 2018, EC President Jean-Claude Juncker and Japanese Prime Minister Shinzo Abe signed the Japan–European Union (EU) Economic Partnership Agreement (JEEPA).
Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) continued discussions on possible reform of investor–state dispute settlement (ISDS) at its 35th session, held April 23–27, 2018 in New York.
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?
It will take time for dialogues on ISDS reform to produce results. In the interim, rather than continue to assume the unjustified risks associated with the flawed ISDS system, states could consider two near-term options. This piece looks at the advantages and disadvantages of each.
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.
The 35th session of Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) takes place April 23–27, 2018
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.
Lighthouse Corporation Pty Ltd and Lighthouse Corporation Ltd, IBC v. Democratic Republic of Timor-Leste, ICSID Case No. ARB/15/2
FÁBRICA DE VIDRIOS LOS ANDES, C.A. AND OWENS-ILLINOIS DE VENEZUELA, C.A. V. BOLIVARIAN REPUBLIC OF VENEZUELA, ICSID CASE NO. ARB/12/21
Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic, PCA Case No. 2014-03
Koch Minerals Sárl and Koch Nitrogen International Sárl v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/19
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.
Argentina and Ecuador are now well experienced in ISDS and have had some success in defending domestic interests from investor claims. Lessons from these prior experiences could benefit other countries, particularly in the developing world, as they devise their legal defence strategies.
Trans-Pacific Partnership agreement signed in Auckland; UN independent expert calls on states to safeguard regulatory space
On February 4, 2016, trade ministers from twelve Pacific Rim nations met in Auckland, New Zealand, to sign the Trans-Pacific Partnership (TPP) agreement.
On December 2, 2015, the European Union and Vietnam signed a free trade agreement (FTA), closing three years of negotiations.
Three reports by CAITISA, Ecuador’s citizen audit commission on bilateral investment treaties (BITs), were leaked by online newspaper Diagonal on January 24, 2016.
On December 17, 2015, a tribunal at the Permanent Court of Arbitration (PCA) issued its jurisdictional award in the case of tobacco giant Philip Morris against Australia over the country’s tobacco plain packaging legislation.
ICSID tribunal dismisses final claim for compensation in relation to Hungary’s 2008 termination of power purchase agreement
Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/1
Adel A. Hamadi Al Tamimi v. Sultanate of Oman, ICSID Case No. ARB/11/33
ICSID tribunal declines jurisdiction in case against Macedonia and orders investor to reimburse 80% of Macedonia’s legal fees and expenses
Guardian Fiduciary Trust Ltd, f/k/a Capital Conservator Savings & Loan Ltd v. Former Yugoslav Republic of Macedonia, ICSID Case No. ARB/12/31
Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified
The book analyses how the investment treaty regime has changed and how it ought to be changing to reconcile private property interests and the state’s duty to regulate in the public interest.
The online database contains information on 696 publicly known international arbitration cases initiated by investors against states pursuant to international investment agreements (IIAs).
Those that propose that the environment needs “more investment protection” are recommending a very long-term solution (of questionable efficacy) to what is essentially a short-term problem.
In a report circulated on August 5, 2015, UN Independent Expert on the promotion of a democratic and equitable international order, Alfred-Maurice de Zayas, recommended that states abolish the existing investor–state dispute settlement (ISDS) system.
On September 16, 2015, the European Commission published its proposal on Investment Protection and Resolution of Investment Disputes and Investment Court System.
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.
Proportionality and Deference in Investor-State Arbitration: Balancing investment protection and regulatory autonomy
The study examines how investment tribunals have balanced the interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power.
On June 25, 2015, Bolivian President Evo Morales promulgated Law No. 708 on Conciliation and Arbitration, creating a Special Arbitration Regime for resolving investor-state disputes.