The Outcomes of Investment Treaty Arbitration

2017 ◽  
Author(s):  
Remmer Karen L
Keyword(s):  
Political Institutions ◽  
Dispute Settlement ◽  
Full Range ◽  
Investment Treaty ◽  
Legal Expertise ◽  
Time Sector ◽  
The Universe ◽  
Role Of Information ◽  
Investment Treaty Arbitration

This chapter explores variations in dispute outcomes in investment treaty arbitration. Building on the literature on political institutions, the study places the theoretical importance of actor information about the rules of the game and the resources of the participants at the centre of analysis. Such information shapes the strategy of the players and their relative ability to compete successfully, establishing the basis for hypotheses about variations in dispute outcomes. Drawing on the universe of known disputes, the analysis relies on statistical models and data capable of addressing concurrently the full range of potential dispute outcomes rather than particular categories of wins and losses. States do not just win or lose treaty-based investment disputes; disputes can also be concluded by decisions to discontinue arbitral proceedings and by settlements negotiated between states and investors prior to an arbitral award. Consistent with theoretical expectation, the findings indicate that dispute outcomes vary in response to the evolution of the system of dispute settlement over time, sector of investment, and access to international legal expertise, thereby underlining the pivotal role of information flows in investment dispute settlement.

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

2010 ◽  
Vol 23 (2) ◽  
pp. 401-430 ◽  
Author(s):  
STEPHAN W. SCHILL
Keyword(s):  
Dispute Settlement ◽  
International Economic Order ◽  
International Standards ◽  
Dispute Settlement Mechanism ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
The Public ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

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.

icsid’s Neoliberal Approach to Environmental Regulation in Developing Countries

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.

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.

Environmental Claims by States in Investment Treaty Arbitration

2020 ◽  
Vol 5 (1) ◽  
pp. 412-425
Author(s):  
Gaurav Sharma
Keyword(s):  
International Law ◽  
Paradigm Shift ◽  
Public Discourse ◽  
Critical Role ◽  
Case Law ◽  
New Era ◽  
Investment Treaty ◽  
Local Resources ◽  
Investment Treaty Arbitration

Recent years have witnessed a number of counterclaims by State parties in investment treaty arbitrations based on environmental concerns and the need to protect local resources and safeguard the associated human rights of local communities. This article charts the development of the case law in this context, starting with the Urbaser v. Argentina award of December 2016, before examining its impact on the cases that followed in its wake, notably including the respective 2017 and 2018 awards in Burlington v. Ecuador and Aven v. Costa Rica. It concludes by considering whether these recent cases mark the beginning of a new era of international law claims which finds a parallel in the broader paradigm shift in public discourse on the critical role of all stakeholders in the conservation of the environment, and which may one day result in investors facing standalone claims as the respondent in future investment treaty claims brought by States.

Time Reversibility and the Logical Structure of the Universe

1996 ◽  
Vol 51 (8) ◽  
pp. 960-962 ◽  
Author(s):  
Hans H. Diebner ◽  
Thomas Kirner ◽  
Otto E. Rössler
Keyword(s):  
Information Needs ◽  
Logical Structure ◽  
Dynamics Simulation ◽  
The Novel ◽  
Time Reversibility ◽  
Recent Proposal ◽  
Logical Operations ◽  
The Universe ◽  
Role Of Information

Abstract Both Fredkin's findings on the reversibility of logical operations and the novel capability to integrate Newton's equation of motion in an exactly reversible manner enables one to perform a gedankenexperiment in the form of a molecular dynamics simulation of the universe. This leads to a new validation of the reversible structure of the universe. Alternatively, the role of information needs to be upgraded in accordance with a recent proposal by Stonier.

Non-treaty Claims in Investment Treaty Arbitration

2017 ◽  
Vol 31 (1) ◽  
pp. 59-91
Author(s):  
BERK DEMIRKOL
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
International Treaty ◽  
Exclusive Jurisdiction ◽  
Investment Treaty ◽  
Investment Agreement ◽  
Legal Entitlement ◽  
Investment Treaty Arbitration

AbstractThis article explores the conditions under which it is possible to bring claims based on non-international investment agreement (IIA) norms of international law in investment treaty arbitration. For that purpose, it analyzes in the first instance broad dispute settlement clauses incorporated in IIAs that make reference to the settlement of ‘any investment dispute’. Such clauses grant jurisdiction to investment treaty tribunals to hear non-IIA claims. However, at least two additional conditions need to be satisfied for the investor to bring a self-standing claim based on a non-IIA norm of international law. First, the non-IIA instrument (a contract or another international treaty) may include a dispute settlement clause envisaging exclusive jurisdiction in favour of another forum. Second, the investor's standing to bring a claim based on a non-IIA norm of international law depends on whether this norm attributes any legal entitlement in the benefit of the investor.

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

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

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