scholarly journals Cortec Mining Kenya Limited, Cortec (Pty) Limited, and Stirling Capital Limited v. Republic of Kenya

2019 ◽  
Vol 113 (3) ◽  
pp. 574-581
Author(s):  
Lorenzo Cotula ◽  
James T. Gathii
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
International Investment ◽  
Arbitral Tribunal ◽  
Public International Law ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Legal Implications ◽  
Mining Project

In Cortec v. Kenya, an investor-state arbitral tribunal established under a bilateral investment treaty (BIT) held it lacked jurisdiction to hear a dispute concerning a mining project that the tribunal found did not comply with domestic environmental law. The award raises significant issues of public international law, including how questions of investor compliance are considered in investor-state dispute settlement and the legal implications of investor noncompliance. The issues resonate with wider debates about balancing investor rights and obligations in the international investment regime.

scholarly journals eu Law Constraints on Intra-eu Investment Arbitration?

2017 ◽  
Vol 16 (1) ◽  
pp. 71-86 ◽  
Author(s):  
Eirik Bjorge
Keyword(s):  
European Union ◽  
International Law ◽  
Arbitral Tribunal ◽  
Eu Law ◽  
The European Union ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Energy Charter Treaty ◽  
The Law

This article questions whether the law of the European Union (eu) can impose jurisdictional constraints on so-called intra-eu investment arbitration proceedings. Would an arbitral tribunal hearing an intra-eu case under either a bilateral investment treaty (bit) or under the Energy Charter Treaty (ect) have to declare itself incompetent to conduct the case proceedings owing to the operation of eu law? This article subjects that proposition to criticism, finding that, for a number of reasons, connected either with the drafting of the bit or the ect or the operation of general principles of international law, it does not withstand scrutiny. An arbitral tribunal seized of a treaty claim under a bit or the ect cannot rely on eu law to negate rights expressly granted under the instrument providing for its jurisdiction.

Attribution in International Investment Law

2020 ◽  
pp. 96-178
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Critical Discussion ◽  
Single Test ◽  
Public International Law ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law

Chapter III elucidates the application of attribution rules by international investment tribunals. This chapter is similar in structure to Chapter II, which is a consequence of the proximity of international investment law to public international law with regard to the topic of attribution of conduct to a party. In addition, this chapter contains critical discussion on investor–State dispute settlement (ISDS), chiefly on the dialectics between lex generalis (customary international law) and lex specialis (international investment law) as to the resolution of attribution issues, and on the distinction between treaty claims and contract claims for the purposes of the operation of so-called ‘umbrella clauses’. More generally, the chapter critiques the reasoning of arbitrators who have applied the test for attribution of conduct under ARSIWA Articles 4, 5, and 8 in a holistic way, rather than implementing each single test autonomously.

Expropriation and the Settlement of Investment Disputes: An Account of the Controversy between Repsol and Argentina

Global Jurist ◽  
2015 ◽  
Vol 15 (1) ◽  
Author(s):  
Alexis Rodrigo Laborías
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
Bilateral Investment Treaty ◽  
International Standard ◽  
Investment Treaty ◽  
Oil Company

AbstractThe article analyzes the controversy between Argentina and the Spanish corporation Repsol, arisen from the expropriation in 2012 of the latter’s shares in the local oil company YPF. From the standpoint of the international law on foreign investment, two issues are considered. Firstly, whether this taking fulfilled the requirements acknowledged as international standard for a valid expropriation, as well as the conditions laid out in the Bilateral Investment Treaty between Argentina and Spain. Secondly, the shifting process of dispute settlement, represented as an interaction between negotiation and arbitration, which finally led to a mutually accepted agreement.

Non-treaty Claims in Investment Treaty Arbitration

2017 ◽  
Vol 31 (1) ◽  
pp. 59-91
Author(s):  
BERK DEMIRKOL
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
International Treaty ◽  
Exclusive Jurisdiction ◽  
Investment Treaty ◽  
Investment Agreement ◽  
Legal Entitlement ◽  
Investment Treaty Arbitration

AbstractThis article explores the conditions under which it is possible to bring claims based on non-international investment agreement (IIA) norms of international law in investment treaty arbitration. For that purpose, it analyzes in the first instance broad dispute settlement clauses incorporated in IIAs that make reference to the settlement of ‘any investment dispute’. Such clauses grant jurisdiction to investment treaty tribunals to hear non-IIA claims. However, at least two additional conditions need to be satisfied for the investor to bring a self-standing claim based on a non-IIA norm of international law. First, the non-IIA instrument (a contract or another international treaty) may include a dispute settlement clause envisaging exclusive jurisdiction in favour of another forum. Second, the investor's standing to bring a claim based on a non-IIA norm of international law depends on whether this norm attributes any legal entitlement in the benefit of the investor.

scholarly journals LEGAL PROTECTION AGAINST THE FAILURE TO COMPENSATE ON INTERNATIONAL INVESTMENT DISPUTE

2019 ◽  
Vol 8 (2) ◽  
pp. 205
Author(s):  
Vunieta . ◽  
Walida Ahsana Haque
Keyword(s):  
Foreign Investment ◽  
Dispute Settlement ◽  
Legal Protection ◽  
International Investment ◽  
Bilateral Investment Treaty ◽  
Arbitral Award ◽  
Investment Treaty ◽  
Arbitration Proceeding ◽  
Investment Agreement ◽  
Arbitration Award

A dispute between two or more countries involved in a foreign investment may arises<br />from investment agreement agreed upon by the parties. If one of the parties breaches<br />the agreement, the parties will automatically agree to resolve the dispute to the agreed<br />arbitration forum based on the dispute settlement clause on the agreement, those<br />forum such as the ICSID arbitration. Therefore, the existence of dispute settlement<br />clause on an investment agreement (Bilateral Investment Treaty) is very necessary.<br />The result of the above-mentioned arbitration proceeding is a binding and final<br />decision for the parties. An arbitral award, should contain relief or compensation<br />set by the arbitrator as the result of the proceeding. The reliefs are given as orders to<br />indemnify the damages obtained by Claimant. Issues arises when Respondent has been<br />proven to have done detrimental damage to the Claimant yet Respondent deliberately<br />neglected his/her obligation to compensate Claimant accordingly based on the relief/<br />compensation specified in the award. The non-compliance of the Respondent to<br />fulfill the compensation obligation is due to the fact that the party habitually assume<br />that the arbitration award does not have the legal force equivalent to the decision<br />of general court, even though the nature of the award is final and binding. Thus the<br />interests and rights of the Applicant who has been declared entitled to compensation<br />based on the arbitration award must be protected so that their rights can be fulfilled<br />according to the law.

scholarly journals INDONESIA’S NEW MODEL OF BILATERAL INVESTMENT TREATY: COMPARISON WITH BRAZIL

2019 ◽  
Vol 3 (2) ◽  
pp. 235-254
Author(s):  
Resha Roshana Putri
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investors ◽  
Bilateral Investment Treaty ◽  
Healthy Environment ◽  
The Past ◽  
Investment Treaty ◽  
The People ◽  
The Right ◽  
Investment Facilitation

AbstractIn the past few years, there has been a surge in lawsuits against the mechanism for resolving international investment disputes through the Investors State Dispute Settlement (ISDS) forum proposed by foreign investors who are host states, including Indonesia. Most of the claims are caused by the policies of the host country which are intended to protect the basic rights of the people such as the right to health, the right to a healthy environment, taxes, as well as the minimum standard of wages for workers. This policy provides a loss for foreign investors and is considered a violation of the Bilateral Investment Treaty (BIT). BIT is often recognized to be detrimental to Indonesia, because it can disrupt the sovereignty of the country, especially when dealing with international disputes with foreign investors. This study uses a comparative juridical approach, comparing the BIT model in Indonesia with Brazil, namely Cooperation and Investment Facilitation Agreement (CIFA). Brazil was chosen because it succeeds to reform its investment regime, specifically on its BITs. The results obtained were that Indonesia had to change several provisions in its BITs, which has been regulated CIFA provisions in Brazil, which is not member of the ICSID Convention.Keywords: BIT, CIFA, Investor State Dispute Settlement. AbstrakBeberapa tahun terakhir, ada lonjakan tuntutan hukum terhadap mekanisme penyelesaian sengketa investasi internasional melalui Investor State Dispute Settlement (ISDS) forum yang diusulkan oleh investor asing yang menjadi host states, termasuk Indonesia. Sebagian besar klaim disebabkan oleh kebijakan negara tuan rumah yang dimaksudkan untuk melindungi hak-hak dasar masyarakatnya seperti hak atas kesehatan, hak atas lingkungan yang sehat, pajak, juga standar minimum upah pekerja. Kebijakan ini memberikan kerugian bagi investor asing dan dianggap sebagai pelanggaran Bilateral Investment Treaty (BIT). BIT seringkali dianggap merugikan bagi Indonesia, karena dapat mengganggu kedaulatan negara, khususnya ketika berhadapan dengan sengketa internasional dengan investor asing. Penelitian ini menggunakan pendekatan yuridis normatif dengan metode perbandingan, yaitu dengan membandingkan model BIT di Indonesia dengan Brazilia, yaitu Cooperation and Investment Facilitation Agreement (CIFA). Brazil dipilih karena merupakan negara yang berhasil melakukan reformasi terhadap rezim investasinya, khususnya pada BIT. Hasil yang diperoleh adalah bahwa Indonesia harus merubah beberapa ketentuan dalam BITs nya, seperti yang terkadung dalam CIFA di Brazil, yang bukan merupakan negara anggota dari Konvensi ICSID. Kata Kunci: BIT, CIFA, Penyelesaian Sengketa Investor-Negara

scholarly journals International Investment Law as International Law: Russian and Western Approaches

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 202-206 ◽  
Author(s):  
Dmitry K. Labin ◽  
Alena V. Soloveva
Keyword(s):  
Comparative Study ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Practical Relevance ◽  
Private International Law ◽  
The West ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Law

No Western publication on international investment law (IIL) has ever specifically undertaken a comparative study of Russian and Western doctrines of IIL. Although Russian scholars often contrast Western and Russian approaches to international law, scholars in the West mostly proceed without any discussion of Russian practice and perspectives. To fill this gap, this essay introduces the Russian approach to IIL and contrasts it with its Western counterpart. In particular, we show that the Russian approach focuses far more extensively on the nature and categorization of IIL and treats IIL primarily as private international law rather than public international law. The distinctive Russian approach has practical relevance for states and scholars, in part because it helps to explain why Russia has resisted efforts to reform investor-state dispute settlement.

International Law

2017 ◽  
Author(s):  
Anders Henriksen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Prior Knowledge ◽  
Armed Conflict ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Use Of Force ◽  
Critical Perspective ◽  
Public International Law ◽  
Economic Law

International Law provides comprehensive and concise coverage of the central issues in public international law. The text takes a critical perspective on various aspects of international law, introducing the controversies and areas of debate without assuming prior knowledge of the topics discussed. Supporting learning features, including central issues boxes, chapter summaries, recommended reading, and discussion questions highlight the essential points. Topics covered include sources of international law, the law of treaties, actors, and jurisdiction. The text also looks at human rights, environmental law, economic law, dispute settlement, the use of force, and armed conflict in an international law setting.

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