Portigon v Spain: new frontiers for financial institutions in investor–state arbitration?

2020 ◽  
Vol 36 (4) ◽  
pp. 601-609
Author(s):  
Kate Apostolova
Keyword(s):  
Financial Institutions ◽  
Financial Institution ◽  
International Investment ◽  
Project Finance ◽  
International Arbitration ◽  
Investment Treaty ◽  
Investment Treaties ◽  
Dispute Resolution Mechanism ◽  
First Time

Abstract Historically, financial institutions have preferred litigation over arbitration as a dispute resolution mechanism. In recent years, however, financial institutions have turned to international arbitration more often. This is reflected in the 2018 Queen Mary International Arbitration Survey which concluded that financial institutions are ‘contemplating arbitration with much greater interest than ever before’. In addition to incorporating international arbitration clauses more often in their contracts, financial institutions have become increasingly aware of the protections established by international investment treaties and are more actively seeking to benefit from the rights they establish for qualifying investors. A recent decision has revealed how important those rights could be. In August 2020, for the first time in investor–state arbitration, in Portigon v Spain, a tribunal found that a financial institution may seek protection under an investment treaty for project finance because project finance, in the form of long-term loans and swaps, constitutes a protected ‘investment’ under the relevant investment treaty. While the decision remains confidential as of the publication of this article, it is an opportune moment to review the proposition that project financiers may seek protection under investment treaties against state actions that affect adversely the projects they are financing.

Hesitant Embrace: China’s Recent Approach to International Investment Rule-Making

2015 ◽  
Vol 16 (5-6) ◽  
pp. 843-868 ◽  
Author(s):  
Axel Berger
Keyword(s):  
Policy Making ◽  
Significant Contribution ◽  
International Investment ◽  
Investment Policy ◽  
Recent Period ◽  
Investment Treaty ◽  
Key Stakeholders ◽  
Recent Approach ◽  
Investment Treaties ◽  
Rule Making

China is becoming one of the key stakeholders in the international investment regime. It is, however, still unclear what role China can play in the ongoing reform of the international investment regime. Starting from this overall focus, this article analyses the most recent period of China’s international investment policy-making. Mapping the contents of investment treaties signed since 2008 it argues that China undertook a partial ‘NAFTA-ization’. Whilst China has adopted a number of clauses invented by the NAFTA countries, it introduced these clauses in an incoherent fashion. Looking at the drivers of this peculiar policy, this article argues that China’s investment treaty-making practice is largely inspired by its partner countries. As a result of this particular negotiation policy, Beijing’s approach to international investment rule-making is inconsistent. This belies the argument that China can make a significant contribution to reforming the international investment regime.

scholarly journals RECALIBRATING THE INTERNATIONAL INVESTMENT REGIME THROUGH NARROWED JURISDICTION

2020 ◽  
Vol 69 (2) ◽  
pp. 301-334
Author(s):  
Javier García Olmedo
Keyword(s):  
International Investment ◽  
The Novel ◽  
Investment Treaty ◽  
Planning Approach ◽  
Investment Treaties ◽  
Investor Protections ◽  
Legitimacy Crisis ◽  
Personal Jurisdiction ◽  
Dutch Model

AbstractThe legitimacy crisis confronting the international investment regime has called for reforms to eliminate the asymmetric and troubled nature of investment treaties. These instruments grant extensive investor protections without offering reciprocal safeguards for host States wishing to preserve regulatory space. This article argues that any reform designed to redress imbalances in the existing regime should first aim at narrowing the personal jurisdiction of investment tribunals. Problematically, access to most investment treaties depends on broad nationality requirements, which have enabled investors to use corporations or passports of convenience to obtain treaty protection. This practice exacerbates the unbalanced relationship between host States and investors. It increases host States’ exposure to investment treaty claims and allows investors to circumvent newer, more State-oriented investment treaties. Using as an example the novel anti-nationality planning approach embraced in the 2019 Dutch Model BIT, this article suggests effective treaty mechanisms that States can adopt to restrict the range of investors that are entitled to claim.

Bilateral Investment Treaties and the Increase in Egyptian Appearances before International Arbitration Tribunals

2021 ◽  
Vol 29 (1) ◽  
pp. 40-61
Author(s):  
Ashraf M. A. Elfakharani ◽  
Rohana Abdul Rahman ◽  
Hamza E. Albaheth ◽  
Nor Anita Abdullah
Keyword(s):  
International Investment ◽  
Vital Role ◽  
Legal Issues ◽  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Foreign Investors ◽  
Investment Treaties ◽  
Very High

Bilateral investment treaties (BITs), as the name indicates, are meant to govern investment relations between two signatory states. In this context, Egypt holds a significant place among all respondent states, having to face a very high number of legal issues from foreign investors. These cases are pending before several international investment tribunals and Egypt is facing claims of over USD 20 billion annually from its foreign investors. In spite of such a grim situation, there are legal arbitrations that have increased the appearance of Egypt in international arbitration forums. There are several reasons for such a situation to arise, mainly because of the governmental measures towards foreign investors and interests. This article argues that in spite of the unspecified criteria shown towards foreign investors, the Bilateral Investment Treaty's items have played a vital role in increasing Egyptian appearances.

15 Investment Treaty Dispute Settlement

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
State Governments ◽  
Rule Based ◽  
Host State ◽  
Rule Based System ◽  
Investment Treaty ◽  
Diplomatic Protection ◽  
Domestic Courts ◽  
Investment Treaties

This chapter focuses on investment treaty dispute settlement, examining the nature of conflicts between investors and states and the various means provided by treaties to resolve them. In general, investor–state disputes governed by treaties occur because a host state has taken a ‘measure’ that allegedly violates that state's treaty commitments on the treatment it has promised to accord to investments protected by that treaty. Before the advent of investment treaties, investors basically had three methods to seek resolution of their disputes with host states: (a) direct negotiation with host state governments; (b) domestic courts in the host country; and (c) diplomatic protection by their home states. In order to establish a stable, rule-based system for international investment, treaties provide means to resolve disputes about the interpretation and application of treaty provisions. Most investment treaties provide four separate dispute settlement methods: (1) consultations and negotiations between contracting states; (2) arbitration between contracting states; (3) consultations and negotiations between covered investors and host governments; and (4) investor–state arbitration.

Part II Guide to Key Preliminary and Procedural Issues, 7 The Fate of Frivolous and Unmeritorious Claims

2018 ◽  
Author(s):  
Yannaca-Small Katia ◽  
Earnest David
Keyword(s):  
Current Trend ◽  
International Investment ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Agreements

The term ‘frivolous’ is sometimes used to describe a claim which is filed with knowledge that it has little or no chance of succeeding. This chapter examines the procedures available under international investment agreements and international arbitration rules to address on a preliminary and expedited basis claims that are frivolous in the sense of being baseless and unmeritorious, regardless of claimant’s motives. The current trend towards preliminary and expedited consideration of a request that an application in investor-state arbitration be dismissed as frivolous is rooted in the 2004 US Model Bilateral Investment Treaty and the 2006 amendment to the International Centre for Settlement of Investment Dispute (ICSID) Rule 41(5). There is also an emerging focus on the summary disposition of such frivolous claims in international arbitration rules traditionally concerned with commercial arbitration.

Part II Guide to Key Preliminary and Procedural Issues, 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Kostadinova Milanka
Keyword(s):  
International Investment ◽  
Chamber Of Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Treaties ◽  
International Chamber Of Commerce ◽  
Investment Agreements ◽  
Investment Treaty Arbitration

The institution of treaty-based proceedings in a particular forum or under particular set of arbitration rules depends on the consent provisions of the underlying investment treaty. Some 767 arbitration cases have been initiated so far under the total of 3,324 bilateral investment treaties and other international investment agreements signed to date. This chapter provides an overview of the technical and fairly complex procedures for initiating proceedings and constituting tribunals in investment treaty arbitration. It examines the prevalent practices from the perspective of the International Centre for Settlement of Investment Dispute (ICSID) Convention and Rules, and other leading sets of international arbitration rules such as the United Nations Commission on International Trade Law Arbitration Rules, the Rules of Arbitration of the International Chamber of Commerce, and the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, which are among the non-ICSID Rules more commonly referenced in investment treaties.

Chinese Investment Treaties

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Local Governments ◽  
International Investment ◽  
Foreign Economic Policy ◽  
Continuous Growth ◽  
Chinese Investment ◽  
Investment Treaty ◽  
Dramatic Rise ◽  
Investment Treaties

China's success in attracting foreign direct investment (FDI) in the last decade is undisputed and unprecedented. It is currently the second largest FDI recipient in the world, a success partially due to China's efforts to enter into bilateral investment treaties (BITs) and other international investment instruments. This book is a comprehensive commentary on Chinese BITs. Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Given the continuous growth of FDI in China, the emergence of state-investor disagreements in China, and the dramatic rise of investment treaty based arbitrations world wide in recent years, it is anticipated that there will be an increasing number of investment arbitrations involving the central and local governments of China. This book reviews and analyzes China's approach to foreign investment. It considers the current role of investment treaties in China's foreign economic policy, analyzes and interprets the key provisions of the BITs, and discusses the future agenda of China's investment program. It looks at how this investment regime interconnects with the domestic system and considers the implications for a foreign investor in China.

Canadian Investment Treaties with African Countries: What Do They Tell Us About Investment Treaty Making in Africa?

2017 ◽  
Vol 18 (3) ◽  
pp. 556-584 ◽  
Author(s):  
J. Anthony VanDuzer
Keyword(s):  
Sustainable Development ◽  
International Investment ◽  
Economic Power ◽  
African Countries ◽  
Investment Policies ◽  
Investment Treaty ◽  
Investment Treaties ◽  
Work Done ◽  
Made In ◽  
Do So

Between 2013 and 2015, Canada signed nine bilateral investment treaties (BITs) with countries in Africa. Canada was remarkably successful in imposing its model investment treaty on its African partners. Canada’s success might be considered surprising. Investor-state arbitration cases have shown the strong binding character of BITs and the corresponding need for host states to ensure that treaties reflect their distinctive priorities. In seeking to do so, African countries could have looked to African regional initiatives for expressions of made in African investment policies. African negotiators could have benefited from the substantial work done by UNCTAD and others to provide new forms of international investment rules that make BITS more supportive of sustainable development. Despite stronger incentives for African countries to assert themselves in BIT negotiations and resources for them to draw on, however, Canada’s recent BITs suggest that political and economic power continue to define the outcome of negotiations.

Civil Society and International Investment Arbitration

2020 ◽  
pp. 303-327
Author(s):  
Nathalie Bernasconi ◽  
Martin Dietrich Brauch ◽  
Howard Mann
Keyword(s):  
Civil Society ◽  
Dispute Settlement ◽  
International Investment ◽  
Public Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Investment Agreements

This chapter discusses the role of civil society in international investment arbitration. Much of the civil society focus on international arbitration has been on the investor–state dispute settlement (ISDS) process included in many international investment agreements. However, the historical role of commercial arbitration as the progenitor of investment treaty arbitration and the procedural and structural links between ISDS and commercial arbitration are important for the discussions on civil society engagement. Civil society recognized early on the problems of using a commercial arbitration model for investment arbitration, which involves public law matters, and concluded that this created a misappropriation of a tool that up to that time had only been used for private commercial purposes or very well-defined state-to-state purposes. The crossing of these purposes and actors to create public law arbitration between investors and states is what created this sense of misappropriation and led to a spotlight being shone on the regime by civil society. The chapter then looks back at the beginnings of civil society engagement with international arbitration through the experience with investment treaties, including the advancement of transparency and the ability to submit amicus curiae briefs.

scholarly journals Putting the MFN Genie Back in the Bottle

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 60-63
Author(s):  
Michael Waibel
Keyword(s):  
International Law ◽  
International Investment ◽  
Third Party ◽  
Most Favored Nation ◽  
Trade Regime ◽  
Investment Treaty ◽  
Limited Role ◽  
Investment Treaties ◽  
Text Context

This essay underscores the importance of background understandings in general international law for interpreting brief, open-ended clauses such as most favored nation (MFN) clauses. Contrary to Simon Batifort and J. Benton Heath's claim, I suggest that often interpreters of MFN clauses cannot limit themselves to the text, context, and preparatory materials of a specific MFN clause. A common international negotiating technique, including for investment treaties, is to rely on the general background understanding of what a clause typically means in international law—its default meaning. I also argue that MFN clauses have played a surprisingly limited role in the international investment regime to date. In the main, they have functioned as a stepping stone for procedural and substantive guarantees found in third-party investment treaties. This use, and the limited role of MFN clauses in investment treaty awards, stands in sharp contrast to MFN clauses in the trade regime.

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