Foreign Investors, Domestic Courts and Investment Treaty Arbitration

2022 ◽  
pp. 171-229
Author(s):  
Szilárd Gáspár-Szilágyi
Keyword(s):  
Foreign Investors ◽  
Investment Treaty ◽  
Domestic Courts ◽  
Investment Treaty Arbitration

scholarly journals Let Us Not Forget about the Role of Domestic Courts in Settling Investor-State Disputes

2020 ◽  
Vol 18 (3) ◽  
pp. 389-415
Author(s):  
Szilárd Gáspár-Szilágyi
Keyword(s):  
Subject Matter ◽  
Working Group ◽  
Reform Process ◽  
Foreign Investors ◽  
Host State ◽  
Investment Treaty ◽  
Domestic Courts ◽  
The Relationship ◽  
Investment Treaty Arbitration

Abstract This overview illustrates that there is a gap in our knowledge of how domestic courts handle investor-State disputes. As it turns out, some foreign investors use the domestic courts of the host State prior to initiating investment treaty arbitration. Subject matter-wise, these cases are very diverse and not all of them are initiated by investors against the host State. Moreover, in the four countries analysed, investors often appealed to the highest courts of the land, but they lost more cases than they won. These findings should help UNCITRAL Working Group III conceptualize the meaning of “investor-State dispute” and the relationship between domestic and international methods of ISDS. This overview concludes by inviting further empirical research to understand how domestic courts handle investor-State disputes. This in turn can help us develop normative arguments as to why domestic courts should be included in the reform process.

3 Investment Treaty Arbitration

2017 ◽  
Author(s):  
Bonnitcha Jonathan ◽  
Skovgaard Poulsen Lauge N ◽  
Waibel Michael
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
International Courts ◽  
Investment Treaty ◽  
Arbitration Process ◽  
Domestic Courts ◽  
Basic Features ◽  
Resolution Processes ◽  
Core Features ◽  
Investment Treaty Arbitration

This chapter provides an overview of investment treaty arbitration, where a host state’s consent to investor–state arbitration is contained in an investment treaty. The first section explains the basic features of investment treaty arbitration, and compares it to other dispute resolution processes—such as domestic and international courts, investor–state arbitration based on contracts, as well as state-to-state arbitration. The second section describes different institutions and arbitral rules for investment treaty arbitrations. It outlines the phases of investment treaty arbitrations and the core features of the arbitration process, such as the choice of remedies. The third section deals with issues that arise following the conclusion of an investment treaty arbitration—notably, the review, enforcement, and compliance with arbitral awards. The fourth section evaluates two potential alternatives to investment treaty arbitration—alternative dispute resolution (ADR) and litigation in domestic courts.

Part V Remedies and Costs, 24 Interim Relief in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Kaufmann-Kohler Gabrielle ◽  
Antonietti Aurélia ◽  
Potestà Michele
Keyword(s):  
International Trade ◽  
United Nations ◽  
High Threshold ◽  
Arbitral Tribunal ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Temporary Protection ◽  
Domestic Courts ◽  
Investment Treaty Arbitration

This chapter reviews the requirements for a party to obtain interim relief from an arbitral tribunal, the measures that can be ordered, their nature, and effects. It also considers whether the parties to the dispute can seek interim relief from domestic courts rather than from the arbitral tribunal. The scope of the interim relief available in the context of investor-state disputes is broad enough to meet the parties’ legitimate needs for temporary protection, subject to limitations which may be found in the relevant treaty, such as the ones contained in NAFTA Article 1134. However, applicants are also faced with a high threshold when seeking to establish that the interim relief requested is urgent and needed. This may explain the reluctance of many tribunals to grant interim relief in the context of investor-state arbitration, whether in the International Centre for Settlement of Investment Dispute (ICSID) system or under the United Nations Commission on International Trade Law Rules.

Making International Legal Persons in Investment Treaty Arbitration: State-owned Enterprises along the Person/Thing Distinction

2017 ◽  
Vol 18 (5) ◽  
pp. 1183-1228 ◽  
Author(s):  
Mikko Rajavuori
Keyword(s):  
Political Philosophy ◽  
International Law ◽  
Legal Person ◽  
Foreign Investors ◽  
Legal Personality ◽  
Investment Treaty ◽  
Investment Law ◽  
New Perspective ◽  
International Legal Personality ◽  
Investment Treaty Arbitration

Investment treaty arbitration (ITA) has emerged as a space where the international legal personality of states and foreign investors is continuously created, maintained, and redefined. Focusing on treatment of state-owned enterprises (SOEs), this Article juxtaposes investment law's doctrinal foundations with Roberto Esposito's political philosophy to explore the dynamics, porosity, and ramifications of international legal personality in ITA. Skeptical of gradual conceptualizations of legal personality, this Article frames investment law in terms of Esposito's person/thing distinction and argues for SOEs to form a liminal category that exposes malleability of legal doctrines when ITA tribunals make or break international legal persons. Ultimately, the ITA cases seem to open a distinct dispositif of a SOE that both delineates the exact normative demarcation of the state as international legal person and creates pockets of indistinguishability and politics at its borders—often to the detriment of the Global South. This insight provides a new perspective on the creation of international legal persons in ITA and international law more generally but, at the same time, also adds a new dimension to Esposito's overarching framework resting on the asymmetric relationship between persons and things.

System-Building in Investment Treaty Arbitration and Lawmaking

2011 ◽  
Vol 12 (5) ◽  
pp. 1083-1110 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
Free Trade ◽  
Dispute Settlement ◽  
State Level ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

scholarly journals Bilateral Investment Treaty Negotiations between India and U.S: Problems and Prospects

2016 ◽  
Vol 4 (1) ◽  
Author(s):  
Rajesh Kumar
Keyword(s):  
Prime Minister ◽  
Foreign Investors ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Treaty Negotiations ◽  
Technology Control ◽  
The Relationship ◽  
Control Regime ◽  
Australian Company ◽  
Investment Treaty Arbitration

<p><em>Relationship between U.S. and India is at the best phase, especially after former unequivocal support in NSG (Nuclear Supply Group) and helping inclusion in MTCR (Missile Technology Control Regime). The relationship between two oldest and biggest democracies has matured under the headship of Mr. Barak Obama as President and Mr. Nardendra Modi as prime minister. In the recent visit of Indian prime minister, the warm gesture shown by U.S. congress members have further cemented the strength of tie up between two nations. However, despite great chemistry between two nation and its leaders from last many years, both have failed to enter into Bilateral Investment Treaty. India is having Bilateral Investment treaty with more than 80 countries including U.K. and Russia, of which 72 treaties are operational. <a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftn1">[1]</a>  U.S. is having Bilateral Investment treaties with more than 46  countries including Russia and Bangladesh.<a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftn2">[2]</a> Since 2008, the two countries have been engaged in sporadic discussions to conclude the Investment treaty. Negotiations on its wording, based on each country’s revised model treaty texts, will begin soon. Both the leaders Indian Prime Minister Narendra Modi and U.S President Barack Obama affirmed their mutual commitment to facilitating increased bilateral investment flows and fostering an open and predictable climate for investment many a times , But consensus has not been reached till today on certain term and conditions.   In the absence of BIT , the rights of investors of both the countries are at the stake. Further, MFN or nationality treatment clause cannot be invoked or granted in the event of any regulatory or other action. Obligations imposed by BIT to protect interest of foreign investors are absent. Further, after losing its first Investment Treaty Arbitration (ITA) claim in 2012 against White Industries, an Australian company and pending 17 cases, India has recently adopted new BIT in 2015 . It also has reflections of pending claims of Vodafone and other cases involving Intellectual Property Rights( Hereinafter refereed as IPR) and the cases of compulsory licences.   </em></p><div><br clear="all" /><hr align="left" size="1" width="33%" /><div><p><em><a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftnref1">[1]</a> Details Avaialble at <a href="http://www.finmin.nic.in/bipa/bipa_index.asp">http://www.finmin.nic.in/bipa/bipa_index.asp</a>.</em></p></div><div><p><em><a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftnref2">[2]</a> Details Avialable at <a href="http://www.state.gov/e/eb/ifd/bit/117402.htm">http://www.state.gov/e/eb/ifd/bit/117402.htm</a>.</em></p></div></div>

Exploring the prospects of host-state counterclaims in corruption disputes

2020 ◽  
Vol 36 (4) ◽  
pp. 583-600
Author(s):  
Chitransh Vijayvergia ◽  
Pavan Belmannu
Keyword(s):  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Public Officials ◽  
Foreign Investors ◽  
The Public ◽  
Host State ◽  
Investment Treaty ◽  
Investment Treaties ◽  
Investment Treaty Arbitration

Abstract While the regime of investment treaty arbitration has evolved manifold over the decades, has the position of the host-states as a Respondent improved? The authors argue that it has not. Bilateral Investment Treaties (hereinafter BIT(s)) are still asymmetrical in nature where the states are obliged to protect the rights of the foreign investors but are not provided with any remedy against the corrupt activities of the investors. While tribunals have denied jurisdiction over the investors’ claims tainted with corruption, they have provided states with no consequent remedy against such investors. Consequently, the states have to first bear the loss of a failed investment in its territory and then pay for the exorbitant costs of international arbitration as well. Where scholars are arguing for attribution of liability of corrupt activities of the public officials to the states, the authors here raise an important question of what if the liability cannot be attributed to the states due to lack of apparent authority? Should the states be then allowed to move forward from the jurisdictional stage to raise counterclaims to seek damages for the loss caused by the investors? In this article, the authors explore these questions and present arguments in favour of the inclusion of corruption-based counterclaims.

The Politics of Investment Treaty Arbitration

2020 ◽  
pp. 739-766
Author(s):  
Lauge N. Skovgaard Poulsen
Keyword(s):  
State Politics ◽  
Unintended Consequences ◽  
State Governments ◽  
Foreign Investors ◽  
Host State ◽  
Home State ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

This chapter describes the politics of investment treaty arbitration. It first looks at two core political justifications for investment treaty arbitration. The first relates to home state politics and diplomacy: the ability of investment treaty arbitration to depoliticize investor–state disputes. The second justification relates to host state politics and institutions: the ability of investment treaty arbitration to convince certain types of foreign investors to commit capital into certain types of jurisdictions due to its effects on host state governments. On this basis, the chapter then discusses the politics of investment treaty arbitration in recent years, particularly surrounding the unintended consequences of the investment treaty regime as well as the controversy about investment arbitrators themselves.

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