Part II Guide to Key Preliminary and Procedural Issues, 9 Piercing the Veil of Confidentiality: The Recent Trend towards Greater Public Participation and Transparency in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Menaker Andrea J ◽  
Hellbeck Eckhard
Keyword(s):  
Public Access ◽  
Third Party ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Us ◽  
The Status ◽  
Investment Treaties ◽  
Nafta Chapter 11 ◽  
The Veil

Over the past few years, the US, Canada, and the EU have incorporated ‘transparency’ provisions into their investment treaties. Arbitration under those treaties thus will not be confidential, regardless of the arbitral rules governing them. By contrast, Russia’s 2016 regulation for the negotiation of investment treaties expressly provides for confidentiality of arbitration, including the award, unless both parties consent in writing to disclose information. This chapter traces the development of public disclosure and participation in investment arbitration. It is divided into three sections: public access to arbitral documents, third-party written submissions, and public access to arbitration hearings. Each section addresses developments under NAFTA Chapter 11, the evolution of the practice under the International Centre for Settlement of Investment Dispute (ICSID) Arbitration Rules, the approach taken by the new UNCITRAL Rules on Transparency, the status of other arbitration rules, and the practice of certain States as shown in their recent agreements.

Rebus sic stantibus as a Stabilizing Doctrine in the Climate Crisis

Climate Law ◽  
2021 ◽  
Vol 11 (3-4) ◽  
pp. 211-244
Author(s):  
Diana Azarnoush Arsanjani Reisman
Keyword(s):  
World Order ◽  
Third Party ◽  
International Tribunal ◽  
Bilateral Investment Treaty ◽  
Changing Climate ◽  
Investment Treaty ◽  
The Us ◽  
Orderly Fashion ◽  
The Face ◽  
Climate Crisis

Abstract In the face of massive, unanticipated and even disjunctive changes, the balance of the respective interests of the state parties to existing treaties may no longer survive the changed—or changing—climate landscape. While, ideally, the co-contracting states to such treaties could mutually agree to terminate or revise their treaty obligations to accommodate such changes and redress the now imbalance of interests in the treaty, some scenarios are bound to be contentious. In such cases, is there any other procedure that can provide for an orderly and fair adjustment of treaties so as to avert a breakdown of the network of treaties and a destabilization of world order? This article proposes that the rebus sic stantibus doctrine may function as a stabilizing doctrine for maintaining and possibly adjusting treaty regimes in an orderly fashion. Unlike the doctrine of necessity or many explicit treaty carve-outs, such as the security exception of the US Model Bilateral Investment Treaty, the doctrine of rebus sic stantibus may allow for both an objective test and also one that must be pleaded before a third-party arbiter. For this reason, rebus operates within controlled limits. Rebus offers an international tribunal the opportunity to set out a fair termination or revision of a climate-impacted treaty. I trace the evolution of rebus as a stabilizing doctrine and illustrate the potentialities of its application to the climate crisis.

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.

The Life and Death of BITs: Legal Issues Concerning Survival Clauses and the Termination of Investment Treaties

2012 ◽  
pp. 928-950 ◽  
Author(s):  
James Harrison
Keyword(s):  
International Law ◽  
Legal Issues ◽  
Third Party ◽  
Legal Certainty ◽  
Foreign Investors ◽  
Life And Death ◽  
Investment Treaty ◽  
Unilateral Termination ◽  
State Practice ◽  
Investment Treaties

This article considers a number of legal issues that arise when states decide to terminate treaties providing protection to foreign investors. This is an area that is governed both by specific provisions in investment treaties, as well as by principles of general international law. The article considers two particular mechanisms that seek to promote legal certainty for investors by limiting the ability of states to peremptorily revoke the protection offered by investment treaties. Firstly, it considers minimum periods of application. Secondly, it analyzes so-called survival clauses, which serve to extend the application of a treaty to established investors for a particular period of time after its unilateral termination. The article compares the scope of these provisions under a variety of investment treaties in order to identify differences in state practice. It also discusses the limits of these mechanisms against the backdrop of general international law. Finally, the article considers whether protection is also available for established investors when both parties to an investment treaty mutually agree to terminate the treaty. In this context, the article looks at the theory of third party rights and its application in the context of investment treaties.

Part V Remedies and Costs, 26 Third-party Funding in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Blackaby Nigel ◽  
Wilbraham Alex
Keyword(s):  
International Investment ◽  
Third Party ◽  
Access To Justice ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Legal Costs ◽  
Party Funding ◽  
Investment Treaty Arbitration

This chapter discusses the issue of third-party funding in international investment arbitration. Third-party funding has become an established part of the investment arbitration landscape. Despite criticism in some quarters, tribunals and international arbitral bodies have tended to favour the view that third-party funding promotes access to justice rather than encouraging frivolous claims. Tribunals have consistently held that receipt of third-party funding is unlikely to affect a claimant’s position from a jurisdictional perspective and will not affect a claimant’s ability to recover legal costs in cases where tribunals make costs awards. The costs of third-party funding itself may be recoverable in some circumstances. There is a growing tendency among tribunals to require disclosure by funded claimants of the existence and identity of third-party funders. It is, however, unlikely that claimants will commonly be required to disclose the terms of any funding agreement except in rare cases when security for costs is being considered.

Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 2 The Energy Charter Treaty

2018 ◽  
Author(s):  
Gaillard Emmanuel ◽  
McNeill Mark
Keyword(s):  
Dispute Resolution ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Energy Charter Treaty ◽  
Subsequent Section ◽  
Investment Agreement ◽  
Investment Treaties ◽  
Investment Agreements

The landscape of investment arbitration has shifted dramatically, with Europe — and the Energy Charter Treaty (ECT) — playing important roles in that transition. As the number of investment treaty arbitrations continues to mount, the ECT remains the most frequently invoked investment agreement with over 100 publicly known arbitrations filed to date. This chapter begins with some brief remarks on the genesis of the ECT. Each subsequent section focuses on a different aspect of the Treaty’s investment-related features, including the definitions of ‘Investor’ and ‘Investment’ in Article 1 of the ECT; the denial of benefits provision in Article 17(1), the Treaty’s substantive investment protections in Part III; and the dispute resolution mechanisms in Articles 26 and 27. Where useful, the chapter compares the Treaty’s text with analogous provisions in other investment agreements and addresses relevant arbitral decisions under the ECT.

scholarly journals ‘The Making of an Investment’ in the Context of the Temporal Scope of Investment Treaty Protection. Does the Indian Metals & Ferro Alloys Ltd v. Republic of Indonesia Award of 29 March 2019 Constitute a Breakthrough?

2021 ◽  
Vol 10 (1) ◽  
pp. 9-42
Author(s):  
Michał Pyka
Keyword(s):  
Legal Framework ◽  
International Investment ◽  
Arbitral Tribunal ◽  
Host State ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Future ◽  
Legitimate Expectations ◽  
Investment Treaties ◽  
Legal Character

This contribution deals with the question of the legal character of investment treaty claims, brought to international investment arbitration, when alleged breaches of investment treaty obligations towards an investor occurred after the entry into force of an investment treaty but before the making of an investment by an investor. The analysis of the existing legal framework allows for the conclusion that the said acts of a host state are generally excluded from the scope of investment treaty protection. An arbitral tribunal neither has jurisdiction over these acts nor is it allowed to apply substantive treaty provisions thereto. This conclusion stems from the principle of intertemporal law and numerous provisions of investment treaties constituting the implementation or modification of this principle. Nevertheless, an arbitral tribunal is not fully deprived of the possibility of considering the acts of a host state preceding the making of an investmentand undertaken before any activity of the future investor took place. It can consider them as evidence of the intent of a host state, acts creating legitimate expectations of an investor or acts constituting elements of what is termed a continuing act.

Transparency versus Confidentiality in International Investment Arbitration – The Biwater Gauff Compromise

2007 ◽  
Vol 6 (1) ◽  
pp. 97-118 ◽  
Author(s):  
August Reinisch ◽  
Christina Knahr
Keyword(s):  
International Investment ◽  
Amicus Curiae ◽  
Policy Issues ◽  
The Core ◽  
Investment Arbitration ◽  
Important Policy ◽  
Nafta Chapter 11

AbstractRecent years have seen a trend towards increasing transparency in international investment arbitration. This trend has been reflected in arbitral practice and in the amendments to the ICSID Arbitration Rules in 2006, which now expressly allow for participation of non-disputing parties as amicus curiae. Still more problematic, however, is the publication of arbitral documents, which has recently been controversial in Biwater Gauff v. Tanzania. This paper will discuss the core provisions on the publication of documents of the UNCITRAL Arbitration Rules, the ICSID Arbitration Rules and NAFTA Chapter 11. It will analyze the reasoning and the findings of the Biwater Tribunal in this regard as well as the pertinent practice of previous investment tribunals. Important policy issues underlying the decision of the Biwater Tribunal will also be analyzed.

Influences on the Canadian FIPA Model and the US Model BIT: NAFTA Chapter 11 and Beyond

2007 ◽  
Vol 44 ◽  
pp. 249-298 ◽  
Author(s):  
Céline Lévesque
Keyword(s):  
United States ◽  
The United States ◽  
International Investment ◽  
International Investment Law ◽  
The Us ◽  
Nafta Chapter 11 ◽  
Systemic Nature ◽  
Domestic Law ◽  
Different Sources

SummaryIn recent years, Canada and the United States have modified their model bilateral investment treaties (BITs). If NAFTA Chapter 11 cases have provided the new lens through which investment issues are considered, the solutions to problems experienced in this context have come from different sources. This article explores three influences on the model BITs: the NAFTA Free Trade Commission's interpretation and statements, World Trade Organization law and cases, and US domestic law and principles. A range of interpretation issues is raised, from the effects of changes in wording in successive treaties, to the “transferability” of law across systems (international and domestic), to the use of arbitral awards as precedent. Issues of a systemic nature are also raised, including attempts at limiting the discretion of arbitral tribunals through state interpretations, the possibility of creating an appellate mechanism, and a push for expedited preliminary procedures. The article illustrates the fast-paced evolution of international investment law and highlights the influence of the United States on this evolution.

International Investment Arbitration in Myanmar: Bounded Rationality, But Not as We Know It

2017 ◽  
Vol 18 (5-6) ◽  
pp. 974-1000
Author(s):  
Jonathan Bonnitcha
Keyword(s):  
Developing Countries ◽  
Foreign Investment ◽  
International Investment ◽  
Current Approach ◽  
Legal Environment ◽  
Military Rule ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Treaties ◽  
The Government

Abstract In 2011, following almost fifty years of one-party military rule, Myanmar began a process of transition toward democracy. Alongside this process, the Government of Myanmar is pursuing a variety of reforms in the hope of attracting new foreign investment. This article examines elements of the national and international legal environment governing foreign investment in Myanmar. The focus is on Myanmar’s current approach to investment treaties and Myanmar’s experience of investor-state arbitration under such treaties to date, although the article also reviews Myanmar’s national laws that are relevant to international investment arbitration, notably its laws on foreign investment and on arbitration. The article highlights Myanmar’s position to date as a ‘rule-taker’ in the investment treaty regime. It draws attention to important differences between Myanmar’s experience with investment treaties and the experiences of other developing countries, as well as possible points of similarity.

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