Parallel Proceedings under Chinese BITs: The Case of Hela Schwarz GmbH v PR China

2020 ◽  
Vol 11 (2) ◽  
pp. 335-363
Author(s):  
Shen Wei
Keyword(s):  
Free Trade ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Careful Analysis ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Legal Certainty ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
Pr China

Abstract Classic issues in international commercial arbitration such as parallel proceedings also emerge in international investment arbitration. The parallel existence of international investment arbitration and domestic litigation deserves careful analysis for the sake of international legal certainty and security. Given a small number of international investment arbitration cases involving China and its bilateral investment treaties (BITs), the issue of parallel proceedings in Chinese BIT law and practice is underinvestigated. This article tries to look into this issue by reference to the case of Hela Schwarz GmbH v PR China, an ongoing BIT arbitration case registered with the International Centre for Settlement of Investment Disputes. Some improvements have been made to relevant jurisdictional clauses in China’s more recent free trade agreements filling the gap in this grey area.

Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

2019 ◽  
Vol 32 (4) ◽  
pp. 781-800 ◽  
Author(s):  
Joanna Lam ◽  
Güneş Ünüvar
Keyword(s):  
Free Trade ◽  
Public Interest ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Forum Shopping ◽  
New Wave ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
The Eu

AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

6 Non-Disputing Party Participation and Transparency

2018 ◽  
Author(s):  
Commission Jeffery ◽  
Moloo Rahim
Keyword(s):  
Free Trade ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Third Parties ◽  
Bilateral Investment Treaties ◽  
Investment Arbitration ◽  
Investment Treaties

This chapter examines the issue of transparency in treaty-based investment arbitration by focusing on the participation of third parties or non-disputing parties in disputes. More specifically, it considers the procedural issues that transparency mechanisms in bilateral-investment treaties and free-trade agreements, as well as in recently revised arbitral rules, create for arbitral tribunals and those appearing before them. After discussing non-disputing party practice in investment arbitrations, the chapter explains the practice of non-disputing state parties in UNCITRAL and International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It also analyses transparency mechanisms beyond the participation of non-disputing parties in investment arbitrations from the written procedure through to the oral procedure, culminating in a tribunal's decisions and award.

The contribution of free trade agreements and bilateral investment treaties to a sustainable future

2020 ◽  
Vol 23 (1) ◽  
pp. 3-76
Author(s):  
Rafael Leal-Arcas ◽  
Marek Anderle ◽  
Filipa da Silva Santos ◽  
Luuk Uilenbroek ◽  
◽  
...  
Keyword(s):  
Free Trade ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Bilateral Investment Treaties ◽  
Sustainable Future ◽  
Investment Treaties

scholarly journals Participatory Democracy in EU and Australia International Investment Law Policy Processes

2016 ◽  
Vol 18 (1) ◽  
pp. 20-71
Author(s):  
James Day
Keyword(s):  
Case Studies ◽  
Free Trade ◽  
Participatory Democracy ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
International Investment ◽  
International Investment Law ◽  
The People ◽  
Investment Law ◽  
The Eu

This paper turns to the popular field of international investment law, but rather than assessing the consequences of the various bilateral and free trade agreements that dominate this area, it looks at how these agreements are made. Particularly, in an area that is perceived as wanting in legitimacy, it analyses the structures that are involved in making these agreements and assesses them against principles of participatory democracy. Using three participatory sub-principles of openness, inclusiveness and responsiveness as benchmarks, it comments on just how involved the people of the EU and Australia are in making their respective international investment law policies. It uses the recent and ongoing TTIP and TTP negotiations as principal case studies. Ultimately, it concludes that, while both subjects inherit strong foundations for the participation of its people and their processes are not as dismissive as is perhaps publicly perceived, both have a way to go in being truly participatory.

The Evolution of Indirect Expropriation Clauses: Lessons from Singapore’s BITs/FTAs

2016 ◽  
Vol 7 (2) ◽  
pp. 319-336 ◽  
Author(s):  
Yvette ANTHONY
Keyword(s):  
International Law ◽  
Free Trade ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Bilateral Investment Treaties ◽  
Customary International Law ◽  
One Step ◽  
Investment Treaties ◽  
Exhaustive List

AbstractThis paper examines the evolution of expropriation provisions contained in Singapore’s bilateral investment treaties and free trade agreements from the 1970s until now. It will be seen that whilst earlier treaties contained skeletal expropriation provisions, the later treaties have sought to guide the exercise of tribunals’ discretion by providing a non-exhaustive list of factors to be taken into account when indirect expropriation is alleged. The consequences of this evolution in Singapore’s treaty-making practice are considered in the light of customary international law. The paper postulates a framework for analyzing Singapore’s treaty practice and this author concludes by submitting that the later treaties arguably go one step further in limiting the scope of indirect expropriation.

Special Issue: International Investment Arbitration in Southeast Asia

2017 ◽  
Vol 18 (5-6) ◽  
pp. 767-792 ◽  
Author(s):  
Luke Nottage ◽  
Sakda Thanitcul
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Case Law ◽  
International Investment ◽  
Member States ◽  
International Investment Law ◽  
Relative Paucity ◽  
Investment Arbitration ◽  
Investment Law

Abstract The dynamic economies of the Association of Southeast Asian Nations (ASEAN) have individually concluded many standalone bilateral investment treaties (BITs) and a growing number of bilateral and regional free trade agreements (FTAs), supplemented by intra-ASEAN and ‘ASEAN+’ agreements. These aim to facilitate and protect burgeoning foreign direct investment (FDI) flows, outlined in Part 2, including large outflows recently from several states. Part 3 outlines treaty-making trends, including considerable consistency from many member states as well as some interesting innovations, against the backdrop of persistent problems of poor governance. Part 4 highlights nonetheless the relative paucity of investor-state dispute settlement (ISDS) claims against ASEAN member states, with only a few adverse awards, which helps explain why treaty-based ISDS has not been abandoned. Part 5 also notes several contributions from this ISDS case law to international investment law, and Southeast Asia’s potential to keep influencing its trajectory.

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