The Role of Amici Curiae in Light of Recent Developments in Investment Treaty Arbitration: Legitimizing the System?

Group Iii ◽

Investment Treaty ◽

Investment Arbitration ◽

Recent Developments ◽

New Generation

Abstarct Recent developments in investment arbitration and international investment law, in general, are prompting the review of the role of amici curiae in investment arbitration proceedings. The latest initiatives addressing the challenges to the investor-State dispute settlement (‘ISDS’) system, including under the auspices of the UNCITRAL Working Group III, alluded to the participation of the amici in ISDS proceedings. The new generation of international investment agreements (‘IIAs’) is also tackling an enhanced role of amicus curiae, whereas the proposal for the amendment of the ICSID Arbitration Rules includes sizeable amendments to Rule 37(2), to reflect these developments and other concerns raised so far in the practice. This paper addresses the role of amici curiae in these turbulent times for ISDS, emphasizing that, before anything, the role of these non-disputing parties is to assist arbitral tribunals.

Civil Society and International Investment Arbitration

The Oxford Handbook of International Arbitration ◽

10.1093/law/9780198796190.003.0012 ◽

2020 ◽

pp. 303-327

Author(s):

Nathalie Bernasconi ◽

Martin Dietrich Brauch ◽

Howard Mann

Keyword(s):

Civil Society ◽

Dispute Settlement ◽

International Investment Agreements

Public Law ◽

International Arbitration ◽

Commercial Arbitration ◽

Investment Treaty ◽

Investment Arbitration ◽

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.

The Role of Proportionality in International Investment Law and Arbitration: A System-Specific Perspective

Nordic Journal of International Law ◽

10.1163/15718107-89030012 ◽

2020 ◽

Vol 89 (3-4) ◽

pp. 471-491

Author(s):

Eric De Brabandere ◽

Paula Baldini Miranda da Cruz

Keyword(s):

Dispute Settlement ◽

Ad Hoc ◽

Uniform Approach ◽

Investment Arbitration ◽

Investment Law ◽

Investment Agreements

Abstract In this article, we examine the place of proportionality and related tests in international investment law and arbitration by looking specifically at the challenges faced by this field on applying proportionality coherently and consistently. We also assess where proportionality has been used in international investment law and arbitration. We argue that a sound appreciation of proportionality in international investment law requires taking into account the inherently imbalanced conception of international investment agreements, the incoherence of the international investment law regime, and the ad hoc dispute settlement method tasked with applying and interpreting a variety of imprecise and diverging norms. Therefore, international investment law and arbitration have not developed an institutionalised approach towards proportionality. Since investment agreements and international investment arbitration form a rather incoherent collective of cases and, as a result, have not developed a single or uniform approach towards proportionality, there is a tendency to individually approach cases.

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

Asian Journal of International Law ◽

10.1017/s2044251316000187 ◽

2016 ◽

Vol 7 (2) ◽

pp. 287-318

Author(s):

Dilini PATHIRANA

Keyword(s):

Sri Lanka ◽

Dispute Settlement ◽

Status Quo ◽

Global Context ◽

Investment Treaty ◽

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.

The future of environmental counterclaims in ICSID arbitration: challenges, treaties and interpretations

Cambridge International Law Journal ◽

10.4337/cilj.2020.02.04 ◽

2020 ◽

Vol 9 (2) ◽

pp. 176-200

Author(s):

Godwin Tan ◽

Andrea Chong

Keyword(s):

Dispute Settlement ◽

Careful Analysis ◽

Environmental Risks ◽

Global Environmental ◽

The Future ◽

Recent Developments ◽

New Generation ◽

Near Future

This article considers the potential of addressing global environmental risks through the investor–State dispute settlement regime, specifically arbitration under the International Centre for Settlement of Investment Disputes. It examines the viability of States raising environmental counterclaims against investors for breaches of environmental norms through an analysis of the jurisdictional and substantive issues in Burlington v Ecuador and Perenco v Ecuador. The article then assesses broader challenges in using such counterclaims to address environmental risks. However, it also tracks recent developments, such as the rise of new generation treaties that directly impose environmental obligations on investors and tribunal pronouncements that reflect environmental concerns, which demonstrate that international investment law is evolving in a way that will encourage and strengthen environmental counterclaims in the future. The article notes that these developments come with their own set of limitations, some of which are underexamined in practice and in existing literature. While the viability of environmental counterclaims will turn on a careful analysis of the circumstances of each case, the article concludes that such counterclaims will likely play a greater role in supporting global environmental protection in the near future.

Expropriation in Transition: Evolving Chinese Investment Treaty Practices in Local and Global Contexts

Leiden Journal of International Law ◽

10.1017/s0922156515000308 ◽

2015 ◽

Vol 28 (3) ◽

pp. 579-604 ◽

Cited By ~ 2

Author(s):

SHEN WEI

Keyword(s):

Trade Agreement ◽

Chinese Investment ◽

Cultural Concepts ◽

Investment Treaty ◽

Investment Arbitration ◽

Role Of The State ◽

The Republic

AbstractThe doctrine and case law on expropriation in international investment law is an unsettled area due to a variety of factors such as the diversity of interests between capital importing and exporting states, the divergence in legal, economic, and cultural concepts of property rights, and, more importantly, the regulatory role of the state in cross-border investment activities. Although China has been an active ‘treaty-maker’ in the universe of international investment arbitration, evidenced by its nearly 130 bilateral investment treaties (BITs), the notion of expropriation in these BITs is in a state of flux. This article scrutinizes the expropriation clauses in China's BITs, in particular, the Peru–China BIT and the Peru–China free trade agreement, by reference to the final award of Tza Yap Shum v. The Republic of Peru, the first Chinese BIT arbitration case. This article attempts, in a comparative context, to understand the underlying rationale for China's evolving stance on expropriation.

Part IV The Impact of International Investment Law, 17 Investor–State Dispute Settlement

Multinational Enterprises and the Law ◽

10.1093/law/9780198824138.003.0017 ◽

2021 ◽

Author(s):

Muchlinski Peter T

Keyword(s):

Dispute Settlement ◽

Principal Characteristics ◽

Trade Law ◽

International Trade Law ◽

Procedural Costs ◽

New Generation ◽

The Impact

This chapter studies investor–state dispute settlement (ISDS) in International Investment Agreements (IIAs), the primary method of which is investor–state arbitration. It outlines the nature of investor–state disputes and the main types of dispute settlement techniques. The chapter also considers the principal characteristics of investor–state arbitration and examines arbitration under the Washington Convention on Settlement of Investment Disputes between States and Nationals of Other States 1965 (the ICSID Convention), which established the International Centre for Settlement of Investment Disputes (ICSID). Most Bilateral Investment Treaties (BITs) refer to ICSID arbitration as the sole, or optional, method of dispute settlement. ICSID Tribunals have acted in a wide range of disputes, adopting expansive interpretations of personal and subject-matter jurisdiction. This has led to criticism that investor–state arbitration has become too pervasive and a threat to the states’ ‘right to regulate’, given the risk of high procedural costs and compensation. ‘New-generation’ IIAs have responded by limiting the jurisdiction of tribunals over investment disputes. Moreover, recourse to alternative dispute resolution (ADR) and dispute avoidance techniques is being encouraged. The United Nations Commission on International Trade Law (UNCITRAL) has also taken up ISDS reform and is in the process of formulating a multilateral reform package.

International Investment Agreements, 2015–2016

10.1093/law-iic/9780198809722.016.0002 ◽

2017 ◽

Cited By ~ 2

Author(s):

Coleman Jesse ◽

Johnson Lise ◽

Sachs Lisa ◽

Gupta Kanika

Keyword(s):

Dispute Settlement ◽

Codes Of Conduct ◽

Decision Makers ◽

Investment Treaty ◽

The Right ◽

Investment Agreements ◽

The Eu

This chapter considers developments in 2015 and 2016 that illustrate trends and features in recent treaty drafting. It first discusses the expanded awareness of, and interest in, the investment regime that has emerged in recent years, followed by the role of ratification in the context of investment treaty drafting and policy. It then discusses four drafting trends: (1) constraining investor access to dispute settlement and limiting arbitral discretion; (2) better protecting the right to regulate; (3) establishing investor obligations; and (4) introducing codes of conduct for decision makers in investment disputes. Finally, the chapter provides a brief overview of new provisions regarding the conduct and qualifications of arbitrators, including a glimpse at the EU proposal for a multilateral court.

Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

Leiden Journal of International Law ◽

10.1017/s0922156520000643 ◽

2020 ◽

pp. 1-28

Author(s):

Moshe Hirsch

Keyword(s):

Human Rights ◽

Social Movements ◽

Human Rights Law ◽

Investment Arbitration ◽

Public Pressure ◽

Local Actors ◽

Investment Law

Abstract The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

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

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/cyl.2021.18 ◽

2021 ◽

pp. 1-26

Author(s):

CÉLINE LÉVESQUE

Keyword(s):

Working Group ◽

Dispute Settlement ◽

Code Of Conduct ◽

Group Iii ◽

Investment Promotion ◽

Long Run ◽

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.

Constitutionality of the Colombia-France Bilateral Investment Treaty

The American Journal of International Law ◽

10.1017/ajil.2020.37 ◽

2020 ◽

Vol 114 (3) ◽

pp. 471-478

Author(s):

Rafael Tamayo-Álvarez

Keyword(s):

Constitutional Court ◽

Investment Treaty ◽

Adverse Impacts ◽

The Government ◽

Benefits And Costs ◽

Investment Agreements ◽

Practical Implications

In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.