Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator

AbstractInvestment treaty arbitration, unlike commercial arbitration, is not a purely private dispute settlement mechanism that is entirely subject to party autonomy and limited in its effects to the parties to the proceedings. Rather, it fulfils a public function in influencing the behaviour of foreign investors, states, and civil society more generally by crafting and concretizing international standards of investment protection. Investment treaty arbitration thus implements and operates as part of a public system of investment protection. Arbitrators, as a result, incur obligations not only towards the parties to the proceedings, but vis-à-vis the whole system of investment protection. These obligations can be conceptualized as part of the public law implications of investment treaty arbitration and affect, inter alia, the role and status of arbitrators in investment treaty disputes, the procedural maxims that such arbitrations should follow, and the way arbitral awards should be crafted.

Download Full-text

Part IV Guide to Key Substantive Issues, 19 The Law Applicable in Investment Treaty Arbitration

10.1093/law/9780198758082.003.0019 ◽

2018 ◽

Author(s):

Banifatemi Yas

Keyword(s):

Specific Nature ◽

Commercial Arbitration ◽

Party Autonomy ◽

Applicable Law ◽

Investment Protection ◽

Investment Treaty ◽

Primary Rule ◽

The Law ◽

Investment Treaty Arbitration

Investment treaty arbitration, being an arbitral process, in no way differs from international commercial arbitration in that the principle of party autonomy is the primary rule governing the arbitration, including as regards the law applicable to the substance of the dispute. When the applicable law has been chosen by the parties, the arbitrators have a duty to apply such law and nothing but such law. It is only in the absence of a choice by the parties that the arbitrators are entitled to exercise a degree of discretion in the determination of the applicable law. This chapter examines each of these situations in turn, before considering whether the specific nature of investment protection treaties has implications in terms of choice of law process.

Download Full-text

icsid’s Neoliberal Approach to Environmental Regulation in Developing Countries

International Community Law Review ◽

10.1163/18719732-12340018 ◽

2017 ◽

Vol 19 (4-5) ◽

pp. 401-442

Author(s):

Antonius R. Hippolyte

Keyword(s):

Latin American ◽

Foreign Investment ◽

Dispute Settlement ◽

Dispute Settlement Mechanism ◽

Investment Treaty ◽

American States ◽

Physical Environments ◽

Hazardous Waste Landfills ◽

Settlement Mechanism ◽

Investment Treaty Arbitration

Abstract With the intensification of their participation in the foreign investment regime, Latin American States are finding it difficult to implement measures beneficial to protecting their environments due to their obligations to third States. This governance deficit is further compounded by the regime’s neoliberal predisposition in favour of property protection, which has penetrated the system and implicated the system of investment treaty arbitration, the regime’s primary dispute settlement mechanism. The International Centre for Settlement of Investment Disputes (icsid) has also been implicated. This is seen in the momentous diversity in investor-State disputes resolved by various icsid tribunals, which concern attempts by Latin American States to protect their physical environments such as the protection of wildlife or other matters such as the regulation of hazardous waste landfills and ensuring that citizens have access to clean water. Tribunals have approached such disputes primarily from a commercial standpoint, ignoring non-market alternatives such as environmental considerations.

Download Full-text

Notion of investment under the ICSID Arbitration: A jurisdictional dilemma between subjective and objective approaches

International Conference on Advances in Business Management and Law (ICABML) ◽

10.30585/icabml-cp.v1i1.16 ◽

2017 ◽

Vol 1 (1) ◽

pp. 120-142

Author(s):

Nasiruddeen Muhammad

Keyword(s):

Dispute Settlement ◽

Controversial Issues ◽

Dispute Settlement Mechanism ◽

Bilateral Investment Treaty ◽

Investment Treaty ◽

Definition Of ◽

Settlement Mechanism ◽

Exact Definition ◽

Investment Treaty Arbitration

The notion of Investment is one of the most controversial issues trailing the dispute settlement mechanism of International Center for Settlement of Investment Dispute (ICSID). One notable issue surrounding the controversy is identifying an exact definition of investment for the purposes of ICSID Jurisdiction. While some tribunals tend to give effect to the agreement of the parties contained in their contracts or the underlying bilateral investment treaty as giving rise to the ICSID jurisdiction by consent, others tend to subject parties consent into a filtering mechanism based on a certain developed criteria. The aim of the paper is to add clarity to the corpus juris of investment treaty arbitration and provide guidance to the investment treaty tribunals regarding the determination of notion of investment. In doing so, the paper typifies the problem with the notable case of MHS v Malaysia. It then analyzes the two approaches from subjective and objective perspectives. The paper concludes with the proposition that ICSID notion of investment may not necessary lie with either of the two approaches. Keyywords : Investment, treaties, jurisdiction

Download Full-text

Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

10.26686/wgtn.17007421 ◽

2021 ◽

Author(s):

◽

Johanna McDavitt

Keyword(s):

International Law ◽

Public Interest ◽

Commercial Arbitration ◽

Public International Law ◽

The Public ◽

Investment Treaty ◽

Investment Arbitration ◽

Theoretical Conception ◽

Looking Glass ◽

Investment Treaty Arbitration

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

Download Full-text

Part II The Jurisprudence on Corruption in International Investment Arbitration: Case and Trend Analysis, 5 The Scope of Inquiry: Treaty vs. Contract 'Investment Arbitration'

10.1093/law/9780198714262.003.0005 ◽

2014 ◽

Cited By ~ 1

Author(s):

Llamzon Aloysius P

Keyword(s):

Trend Analysis ◽

Dispute Settlement ◽

International Investment ◽

Commercial Arbitration ◽

International Commercial Arbitration ◽

Investment Treaty ◽

Investment Arbitration ◽

Investment Treaty Arbitration

This chapter analyzes the nature of international investment arbitration and how that modality of dispute settlement differs from international commercial arbitration. The most obvious difference between investment and commercial arbitration is the nature of the parties' consent to arbitrate. In contract-based commercial arbitration, consent is expressed in a mutual, largely contemporaneous exchange of promises to bring a present or future dispute to arbitration. But in investment treaty arbitration, the host State's consent is usually expressed as an open offer of arbitration for all nationals of the counterparty State to the investment treaty. Investment arbitration proceedings also operate at high levels of transparency relative to commercial arbitration.

Download Full-text

System-Building in Investment Treaty Arbitration and Lawmaking

German Law Journal ◽

10.1017/s2071832200017235 ◽

2011 ◽

Vol 12 (5) ◽

pp. 1083-1110 ◽

Cited By ~ 12

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.

Download Full-text

THIRD PARTY PARTICIPATION IN INVESTMENT TREATY ARBITRATION

International and Comparative Law Quarterly ◽

10.1017/s0020589310000059 ◽

2010 ◽

Vol 59 (2) ◽

pp. 373-412 ◽

Cited By ~ 9

Author(s):

Tomoko Ishikawa

Keyword(s):

Third Party ◽

Amicus Curiae ◽

Commercial Arbitration ◽

International Commercial Arbitration ◽

The Public ◽

Investment Treaty ◽

Public Nature ◽

Effective Use ◽

Investment Treaty Arbitration

AbstractWhile the public nature of investment treaty arbitration has been increasingly recognized, its procedures are modelled on those of international commercial arbitration. This creates a gap between (public) substance and (private) procedure in investment treaty arbitration. Against this background, this article examines the increasing acceptance ofamicus curiaesubmissions in investment treaty arbitration. It argues that investment treaty arbitration tribunals should make effective use ofamicus curiaesubmissions in order to include neglected perspectives of the issues raised in arbitration, which may bridge this public/private gap.

Download Full-text

Part VI Emergency Arbitration in Investment Treaty Arbitration, 11 Emergency Arbitration in Investment Treaty Arbitration

10.1093/law/9780198831051.003.0011 ◽

2021 ◽

Author(s):

Sim Cameron

Keyword(s):

Dispute Settlement ◽

State Sovereignty ◽

Commercial Arbitration ◽

Investment Treaty ◽

State Consent ◽

Investment Treaty Arbitration

This chapter discusses emergency arbitration in the context of investor-State dispute settlement (ISDS), and specifically, investment treaty arbitration. The key distinction between emergency arbitration in commercial arbitration and in investment treaty arbitration concerns the application of the second principle of emergency arbitration, namely that the parties must consent to emergency arbitration. Several jurisdictional issues may arise in an investment treaty emergency arbitration, which will not arise in the commercial context. Aside from various preliminary issues, including whether the claimant is a qualifying investor with a protected investment under the applicable treaty, these include issues of State consent, the application of cooling-off periods, and the treatment of most-favoured-nation (MFN) clauses. In addition, the principles applicable in an emergency arbitration in the commercial context to the standards applied to determine the application, and the measures that the emergency arbitrator may impose, are equally applicable in the ISDS context. Finally, the same enforcement issues which arise for an emergency arbitration decision in the commercial context are likely to arise in the ISDS context, and concerns surrounding State sovereignty might also be invoked as an additional shield in enforcement proceedings.

Download Full-text

The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective

European Investment Law and Arbitration Review ◽

10.1163/24689017_00401006 ◽

2019 ◽

Vol 4 (1) ◽

pp. 124-146

Author(s):

Lorraine de Germiny ◽

Nhu-Hoang Tran Thang ◽

Duong Ba Trinh

Keyword(s):

Dispute Settlement ◽

International Investment ◽

Dispute Settlement Mechanism ◽

Investment Protection ◽

Investment Treaty ◽

Resolution System ◽

Definition Of ◽

Settlement Mechanism ◽

Dispute Resolution System ◽

The Eu

The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remainsto be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the evipa drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The evipa may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.

Download Full-text