The Rise of Investment Treaties and ISDS in the 1990s and Since

2021 ◽  
pp. 96-121
Author(s):  
Nicolás M. Perrone
Keyword(s):  
World Bank ◽  
Global Consensus ◽  
Investment Treaty ◽  
The World Bank ◽  
The World ◽  
Investment Treaties ◽  
The 1950S ◽  
Bar Association ◽  
The 1960S

In the early 1980s, many countries had not signed investment treaties or joined the ICSID Convention. Neither was there any ISDS practice. This situation changed quickly, however, as the views of the norm entrepreneurs of the 1950s and 1960s became part of the global consensus on development thinking. In the 1990s, the World Bank and UNCTAD put themselves at the forefront of efforts to promote investment treaties and ISDS, a task for which they had the support of organizations such as the American Bar Association. The investment treaty network rapidly expanded, most states joined ICSID, and the first ISDS cases emerged. Some arbitrators acted as pioneers of a new legal field, while others wrote in celebration of the fact that the proposals of the 1960s had now become law. Crucially, they also resolved the disputes in the background of the legal imagination.

Government Regulation on Trial: Expropriation Claims against Latin American States at icsid

2015 ◽  
Vol 14 (3) ◽  
pp. 407-416
Author(s):  
Tafadzwa Pasipanodya
Keyword(s):  
World Bank ◽  
Latin American ◽  
Government Regulation ◽  
International Agreement ◽  
Member States ◽  
Foreign Investors ◽  
The World Bank ◽  
American States ◽  
The World ◽  
The 1960S

In the 1960s, all Latin American member states of the World Bank rejected a resolution recommending an international agreement that would create a center for arbitration in which private foreign investors could settle their disputes with member states. Nevertheless, the resolution was approved and the icsid Convention was born. Ironically, Latin American states – which later became party to the icsid Convention – have had to defend themselves against more expropriation claims before icsid than any other region. This paper analyzes these expropriation claims with a twofold goal. First, to highlight the cases against Latin American states that have been most influential in defining expropriation. And, second, to draw attention to those cases that have revived apprehension about Latin American states’ consent to be adjudged by icsid tribunals.

9 ICSID from 1989 to 1999

2017 ◽  
Author(s):  
Parra Antonio R
Keyword(s):  
World Bank ◽  
World Bank Group ◽  
Large Section ◽  
The World Bank ◽  
The World ◽  
Investment Treaties ◽  
Multilateral Agreement On Investment ◽  
Bank Group ◽  
Growing Network ◽  
Tremendous Impact

This chapter deals with the last year of the 1980s and all of the subsequent decade. Though mostly placid for ICSID, the period was one of momentous change elsewhere in the World Bank Group and, of course, in the world at large. Section I describes the growing network of investment treaties, which was to have a tremendous impact on ICSID. The Multilateral Agreement on Investment episode is also discussed. There were many new signatures and ratifications of the ICSID Convention in the 1990s. They are recounted in Section II, which also looks at the working of the ICSID Secretariat during the decade. An overview of the cases submitted to ICSID between 1989 and 2000 is provided in Section III. Among them were the first Additional Facility cases. The Additional Facility cases, six of which were brought to the Centre under the investment chapter of the NAFTA, are examined in Section IV. The potential of bilateral investment treaties (BITs) to generate cases for ICSID started to be realized in earnest in this period. Several of the new BIT cases led to decisions that were particularly influential in the development of subsequent jurisprudence. These leading BIT cases are examined in Section V.

scholarly journals Resettlement Caused by Jatigede Dam Project -Consequence of Long Delayed Implementation of a Project

2019 ◽  
Vol 5 (1) ◽  
pp. 31 ◽  
Author(s):  
Opan Suhendi Suwartapradja ◽  
Ryo Fujikura ◽  
Sunardi Sunardi ◽  
Regina Hoi Yee Fu
Keyword(s):  
World Bank ◽  
Poverty Line ◽  
Local Economy ◽  
Land Acquisition ◽  
Chinese Government ◽  
Dam Construction ◽  
The World Bank ◽  
Cash Compensation ◽  
The World ◽  
The 1960S

Jatigede dam was constructed in Sumedang Regency of West Java Province, Indonesia. It was planned as early as the 1960s. The World Bank cancelled its financing for the reason of insufficient resettlement planning in 1986, but land acquisition for the dam continued and cash compensation was provided to affected villagers. In spite of the suspension of land acquisition in 1997, the Chinese Government became the new sponsor and dam construction started in 2005. Inundation began in 2015 and the villagers were resettled mainly to the vicinity of the reservoir. The construction was completed in 2015. Most of the cash compensation was provided during the mid-1980s. As three decades have passed since the provision of the compensation, resettlers who received the money conceived that the dam construction project has been cancelled. They spent the money at their original place and did not invest for the resettlement. Today, most of the resettlers are jobless and poor. Their incomes are below the international poverty line. Aquaculture at the reservoir is one of the possible options to improve local economy, but the local government prohibits it to avoid deterioration of water quality.

scholarly journals Good Faith - An ICSID Convention Requirement?

2019 ◽  
Vol 8 (1) ◽  
Author(s):  
Bruno Zeller ◽  
Richard Lightfoot
Keyword(s):  
World Bank ◽  
Autonomous System ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
Good Faith ◽  
International Convention ◽  
Investment Treaty ◽  
The World Bank ◽  
The World ◽  
Private Investors

The International Convention for the Settlement of Investment Disputes (“ICSID”) or the “Washington Convention of 1965” was implemented by the World Bank to facilitate global investment.  It provides for the settlement of investment disputes by establishing an autonomous system of conciliation and arbitration between foreign private investors and host states administered by ICSID. This paper investigates whether good faith plays a role in the resolution of investment disputes between states and investors.  The issue is complicated as in effect three contracts are at play.  To start with there is the contract between the investor and the state. This is supported by a Free Trade Agreement (FTA) or a Bi-lateral Investment Treaty (BIT)[1]which in most cases provides the impetus and the basic rules of the investment being the second contract.  Importantly FTA’s or BIT’s can also contain a method of dispute resolution.  Thirdly, in general any disputes between a state and an investor are submitted to ICSID for a resolution. 

Intergovernmental Bargaining

2018 ◽  
Author(s):  
Taylor St John
Keyword(s):  
World Bank ◽  
Agenda Setting ◽  
Personal Experience ◽  
West Germany ◽  
Investment Protection ◽  
Multilateral Negotiations ◽  
The World Bank ◽  
The World ◽  
The 1960S ◽  
The Uk

This chapter discusses the three proposals for investment protection discussed during the 1960s: a substantive code, an insurance organization, and an investor–state arbitration convention. Investors were largely uninterested in arbitration, except for a few individuals with personal experience of expropriation. While proposals for individual standing existed before, Hermann Abs’ proposals had a new resonance in West Germany during the 1950s. Abs’ proposals, even after modifications by Hartley Shawcross and others, had little chance multilaterally, however: America and the UK were opposed. By 1963, Germany and Switzerland lost interest in multilateral negotiations, as they realized they could get higher standards in bilateral investment treaties. German and Swiss treaties provided access to investment insurance, not investor–state arbitration. Proposals for a multilateral insurance agency were widely supported, but were not realized in large part because the World Bank refused to play an agenda-setting or brokering role for insurance during the 1960s.

VISUALIZING UNCERTAINTIES, OR HOW ALBERT HIRSCHMAN AND THE WORLD BANK DISAGREED ON PROJECT APPRAISAL AND WHAT THIS SAYS ABOUT THE END OF “HIGH DEVELOPMENT THEORY”

2014 ◽  
Vol 36 (2) ◽  
pp. 137-168 ◽  
Author(s):  
Michele Alacevich
Keyword(s):  
World Bank ◽  
Development Economics ◽  
Development Theory ◽  
Project Design ◽  
Project Appraisal ◽  
Albert Hirschman ◽  
The World Bank ◽  
The World ◽  
History Of ◽  
The 1960S

Since its birth in 1944, the World Bank has had a strong focus on development projects. Yet, a project evaluation function was not made operational until the early 1970s. An early attempt to conceptualize project appraisal had been initiated in the 1960s by Albert Hirschman, whose undertaking raised high expectations at the Bank. Yet, Hirschman’s conclusions—published first in internal Bank reports and finally as a book in 1967—disappointed many at the Bank, primarily because they were found impractical. Hirschman attempted to offer the Bank a new Weltanschauung by transforming the Bank’s approach to project design, project management, and project appraisal. Instead, what the Bank expected from Hirschman was not a revolution, but rather an examination of the Bank’s projects and advice on how to make project design and management more measurable, more controllable, and more suitable for replication.The history of this failed collaboration gives useful insights on the unstable equilibrium between operations and evaluation within the Bank. In addition, it shows that the Bank was active in the development economics debates of the 1960s. These insights should be of interest for those development economists today who reflect on the future of the discipline and emphasize the need for a non-dogmatic approach to the study of development issues. It should also be of interest for the Bank itself, with its renewed attention to the importance of evaluation for effective development policies. The history of the practice of development economics, together with the use of archival material, can bring new perspectives that contribute to a better understanding of the evolution of this discipline.

The Creation of Investor–State Arbitration

2020 ◽  
pp. 791-814
Author(s):  
Taylor St. John
Keyword(s):  
Twentieth Century ◽  
World Bank ◽  
The World Bank ◽  
Primary Documents ◽  
National Archives ◽  
The World ◽  
The Creation ◽  
Investment Treaties ◽  
Do So

This chapter explores the creation of investor–state arbitration. There is no shortage of antecedents for investor–state arbitration. So why is it perceived as ‘dramatically different’ from what had gone before? In the second half of the twentieth century, consent to investor–state arbitration was provided prospectively (before disputes arose) and pursuant to generalized jurisdiction (for any treaty breach); this is profoundly different from previous practices. Two institutional developments were crucial for creating prospective, generalized consent. First, the ICSID Convention emerged. Second, provisions providing consent to investor–state arbitration were added to investment treaties. The chapter then focuses on these two developments. It reconstructs the choices that officials faced, their constraints, and the reasons why they made the choice for investor–state arbitration against other alternatives. To do so, it uses primary documents from five archives: the American, British, German, and Swiss national archives as well as the World Bank archives.

International Organizations and Development as a Global Mission

2019 ◽  
pp. 89-106
Author(s):  
Sara Lorenzini
Keyword(s):  
United Nations ◽  
World Bank ◽  
International Organizations ◽  
Modernization Theory ◽  
Black And White ◽  
Global Mission ◽  
The World Bank ◽  
The World ◽  
The United Nations ◽  
The 1950S

This chapter explores how the growing awareness of the global dimensions of development had made international organizations, especially the United Nations, crucial to development thinking and practice. International organizations' involvement in development proceeded in stages, converging toward “one size fits all,” universal technocratic knowledge, and solutions unconnected to cultural specificities, even if distinctive in their ideological orientation. In the 1990s, the naturalized French diplomat Stéphane Hessel wrote that development was a concept that informed the whole structure of the United Nations and gave it meaning. He claimed it took forty years to move from the black-and-white reasoning of the 1950s toward a more nuanced view. The chapter tells the story of this transformation. International organizations that had acted as agencies of civilization in late colonial times became arenas in which different ideas of modernity were articulated. Some, like the World Bank, were clearly the expression of a Western capitalist mindset, whereas others, like the United Nations, provided a home for both technocratic thinking and anti-imperialist ideas that differed from the prevailing modernization theory.

The World Bank in the Battles of the ‘Decolonization Era’

2019 ◽  
pp. 278-294
Author(s):  
Philipp Dann
Keyword(s):  
International Development ◽  
World Bank ◽  
Financial Support ◽  
The World Bank ◽  
The World ◽  
Independent States ◽  
The 1960S ◽  
Far Eastern ◽  
Newly Independent States ◽  
North And South

The story of the World Bank and the discussions over redistribution and financial support for the ‘newly independent states’ in the 1950s and 1960s is ambivalent and seems almost paradigmatic for a larger strategy of Northern governments in those years. This chapter analyses three layers of the story. It first recounts the political battle to institutionalize development financing, placing the creation of the International Development Association (IDA) as a new branch of the Bank in 1960 and main turning point in the broader context of the larger battle between North and South. It then looks at a distinct discursive turn that the Bank took in the 1960s and that seem to have served as rhetorical recognition but also mere placation of the South. Finally, the chapter investigates the legal dimension of the battle, observing that institutional law played an important role in deflecting Southern demands and shielding the Bank against further expectations. In analysing political, rhetorical and legal layers, the chapter argues that one can discern a certain strategy of the Bank and its dominant Northern governments that is reminiscent of classic hegemonic moves. Southern demands were not simply rejected or blocked, but rather redirected, diverted, and ultimately subverted—almost like in the far-Eastern fighting technique of Aikido, where the energy and dynamic of an attack is not absorbed but returned and redirected against the attacker.

Layering

2018 ◽  
Author(s):  
Taylor St John
Keyword(s):  
World Bank ◽  
Pivotal Role ◽  
Direct Access ◽  
Privileged Access ◽  
Standard Practice ◽  
Investment Treaty ◽  
The World Bank ◽  
The World ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Chapter six probes how investor–state arbitration was layered into investment treaties. The ICSID Secretariat played a pivotal role in the initial spread of clauses providing access to arbitration in treaties, and the available evidence does not bring forth any other actors that could have played this role. Shortly after the ICSID Convention came into force, the ICSID Secretariat released Model Clauses providing guidance on how to consent to ICSID’s jurisdiction, and as part of the World Bank, the Secretariat had privileged access to governments. At the Secretariat’s recommendation, governments even enshrined direct access to ICSID in their domestic law. The Secretariat’s promotion of advance consent in BITs was crucial for creating “investment treaty arbitration”: following the Secretariat’s advice, several European states inserted advance consent clauses in their model BITs, and these clauses subsequently became standard practice for BITs around the world.

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