Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?

2021 ◽  
pp. 1-26
Author(s):  
CÉLINE LÉVESQUE
Keyword(s):  
Working Group ◽  
Dispute Settlement ◽  
Code Of Conduct ◽  
International Investment ◽  
Group Iii ◽  
Investment Promotion ◽  
Long Run ◽  
International Investment Agreements ◽  
The Subject ◽  
Investment Agreements

Abstract The practice of arbitrators and counsel in investor-state dispute settlement (ISDS) cases simultaneously playing both roles — known as “double-hatting” — has been the subject of much controversy in recent debates on ISDS reform, notably, at the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III where a Draft Code of Conduct for Adjudicators in International Investment Disputes is under discussion. While Canada has been less than consistent in its approaches to ISDS in recent international investment agreements (IIAs), its position against double-hatting has been rather constant. This article explores whether this stance reveals a commitment on the part of Canada towards increased judicialization of ISDS or reflects a “flavour of the month” reform likely to change with differing IIAs and negotiating partners. Analysis of Canada’s recent IIA practices, including its model Foreign Investment Promotion and Protection Agreement, released in May 2021, and the positions it has taken at UNCITRAL’s Working Group III, lead the author to conclude that Canada appears committed to increased judicialization of ISDS in the long run.

Administrative Review Provisions in Chinese Investment Treaties: ‘Gilding the Lily’?

2021 ◽  
Author(s):  
Manjiao Chi ◽  
Zongyao Li
Keyword(s):  
Legal System ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Chinese Investment ◽  
Long Run ◽  
International Investment Agreements ◽  
Administrative Review ◽  
Review Mechanism ◽  
Investment Agreements

Abstract Despite the popularization of investor-state arbitration (ISA), administrative review remains a helpful local remedy for investment-state dispute settlement (ISDS) in some states. China has a complicated and comprehensive legal system of administrative review. It has concluded a large number of international investment agreements (IIAs), and nearly half of them contain an administrative review provision. These provisions could be considered as an expropriation review mechanism, a standalone ISDS option, an ISA supporting measure or a pre-ISA requirement. Given that administrative review has legal and practical limits, and that China’s national law on dispute settlement and foreign investment governance keeps changing, the attractiveness and significance of administrative review for ISDS are diminishing. In China’s recent IIA-making, there appears an emerging trend of abandoning administrative review. In the long run, it remains to be seen how China will balance local remedies and ISA in IIA-making and foreign investment governance in the future.

Application of MFN to investment dispute settlement: rule of law issues

2021 ◽  
Vol 20 (1) ◽  
pp. 21-41
Author(s):  
Tanjina Sharmin ◽  
Emmanuel Laryea
Keyword(s):  
Rule Of Law ◽  
Design Methodology ◽  
Dispute Settlement ◽  
International Investment ◽  
Content Type ◽  
The Rule Of Law ◽  
The Past ◽  
International Investment Agreements ◽  
The Subject ◽  
Investment Agreements

Purpose Over the past two decades, the application of most-favoured-nation (MFN) clauses in international investment agreements (IIAs) to dispute settlement matters has generated controversy. The purpose of this paper is to help resolve some of the controversies by examining the rule of law issues that may arise from such application of MFN. Design/methodology/approach The study describes controversies regarding the application of MFN to dispute settlement as per the extant literature on the subject. It explores the elements of rule of law in investor-state arbitration. The paper then analyses the implications of applying MFN to dispute settlement matters for the elements of rule of law. Based on such analysis, the study argues that the application of MFN to dispute settlement matters undermines certain elements of rule of law. Findings The paper has outlined the relevant elements of rule of law in investor-state arbitration as access to dispute settlement; judicial (or tribunal) independence, fairness and impartiality; consistency and predictability of law and decisions; transparency; accountability and subjection of dispute forums and systems to law. It found that the application of MFN undermines various components of rule of law, in particular of consistency and predictability and the requirement of tribunals to adjudicate within the limits of the law. Originality/value The findings of this study will help future investor-state arbitral tribunals to decide on the application of MFN to dispute settlement matters.

Investment Protection in Disputed Maritime Areas

2018 ◽  
Vol 19 (5-6) ◽  
pp. 828-859
Author(s):  
Peter Tzeng
Keyword(s):  
Dispute Settlement ◽  
Political Risk ◽  
International Investment ◽  
Joint Development ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Protection Mechanisms ◽  
United Nations Convention ◽  
Risk Insurance ◽  
Investment Agreements

Abstract Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.

Dispute Settlement in EU International Investment Agreements with Third States: Three Salient Problems

2014 ◽  
Vol 15 (3-4) ◽  
pp. 551-569 ◽  
Author(s):  
Markus Burgstaller
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Preliminary Ruling ◽  
International Investment Agreements ◽  
Investment Agreements

The eu institutions are committed to include investor-State arbitration clauses in eu iias with third States. However, there are at least three unresolved problems in doing so. First, the eu is not, and is unlikely to become, a Contracting Party to the icsid Convention. While this deficiency may be remedied by replicating relevant provisions of the icsid Convention, eu investors cannot benefit from icsid’s institutional clout which could facilitate enforcement of awards. Secondly, there may be problems from an eu law perspective. Arguably, the eu could only include investor-State arbitration clauses in eu iias with third States following a change in eu primary law such that investment tribunals could request a preliminary ruling from the cjeu in accordance with Article 267 tfeu. Thirdly, to date there appears to be no agreement within the eu on the question who will be the proper respondent in an arbitration.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

scholarly journals Lo que se está discutiendo en la CNUDMI: evolución o revolución en el sistema de solución de controversias inversor-Estado = What is being discussed in the UNCITRAL: evolution or revolution in the investor-State dispute

2020 ◽  
Vol 12 (1) ◽  
pp. 203
Author(s):  
Enrique Fernández Masiá ◽  
Margherita Salvadori
Keyword(s):  
Working Group ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Institutional Reform ◽  
International Investment ◽  
Access To Justice ◽  
Group Iii ◽  
International Investment Law ◽  
El Sistema ◽  
The Eu

Resumen: La principal iniciativa para reformar el sistema de solución de controversias inversor-Estado está siendo debatida en el Grupo de Trabajo III de la CNUDMI. Se están discutiendo propuestas específicas tanto para una reforma procesal como institucional. En lo que se refiere a la reforma institucional, la Unión Europea propone el establecimiento de un tribunal multilateral de inversiones, que rompería con el sistema actual ad-hoc. Con independencia de estas propuestas, cada vez parece existir un mayor acuerdo para la adopción de un Centro de asesoramiento sobre el Derecho internacional de inversiones, que podría solventar la cuestión de la duración y costes de los procedimientos, facilitar el acceso a la justicia y, mejorar la elaboración de los futuros Acuerdos internacionales.Palabras clave: Arbitraje inversor-Estado , Grupo de Trabajo III de la CNUDMI, Tribunal Multilateral de Inversiones, Mecanismo de Apelación, Centro de Asesoramiento.Abstract: The main initiative to reform the system of investor-State dispute settlement is being debated by Working Group III appointed by the UNCITRAL. Specific proposals for a procedural and institutional reform of the system are being discussed. As concerns the institutional reform, the EU proposes the establishment of a multilateral investment court, which would break the current ad hoc-based system. Independent from these proposals, there appears to be a growing consensus on the establishment of an Advisory Centre on International Investment Law, which could address the issue of costs and duration of procedures, enhance access to justice issues, apart from improving the future treaty law-making.Keywords: Investor-State Arbitration,UNCITRAL Working Group III, Multilateral Investment Court, Appellate Mechanism, Advisory Centre.

Africa and the Rethinking of International Investment Law

2018 ◽  
Author(s):  
Makane Moïse Mbengue ◽  
Stefanie Schacherer
Keyword(s):  
Sustainable Development ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Reform Process ◽  
International Investment Law ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter seeks to present and to contextualize the Pan-African Investment Code (PAIC) by taking a comparative international law approach. Such approach allows us to assess whether the PAIC is an Africa-specific instrument and whether it is unique today in how it incorporates sustainable development concerns. This is particularly interesting for the ongoing global reform process of international investment law. The chapter is divided into five main sections. Section II provides an overview of international investment agreements concluded by African States. Section III presents the origins of the PAIC. Section IV addresses the important question as to what extent the PAIC incorporates traditional investment standards or breaks with them. Section V explores the most innovative aspects of the PAIC. Section VI examines the PAIC and dispute settlement.

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