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.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

Selecting and Removing Arbitrators in International Investment Arbitration

2018 ◽  
Vol 2 (4) ◽  
pp. 1-93
Author(s):  
Chiara Giorgetti
Keyword(s):  
European Commission ◽  
Dispute Resolution ◽  
Working Group ◽  
International Investment ◽  
Critical Assessment ◽  
Reform Process ◽  
Policy Issues ◽  
Investment Arbitration ◽  
Selection And Appointment ◽  
Selection Of

AbstractThis book explores and assesses two essential features in investor state dispute resolution (ISDS): the selection and the removal of arbitrators. Both topics have received increasing scrutiny and criticism, that have in turn generated calls for reforms. In its first part, this book explains the selection of arbitrators procedurally and comparatively under the most-often used arbitration rules. It then reviews critically the necessary and desirable qualities for arbitrators’ selection and appointment, and addresses some important and related policy issues, such diversity and repeat appointments. Finally, it discusses the recent calls to review the methodologies used to appoint arbitrators, and specifically the proposal by the European Commission to create a permanent tribunal to resolve international investment disputes, the UNCITRAL Working Group III Reform Process and the rules amendment proposal undertaken by the Secretariat of the International Center for Settlement of Investment Disputes (ICSID Secretariat). In its second part, the book addresses the companion and similarly important issue of challenging and removing arbitrators. It does so by reviewing first the provisions that are appplied under a variety of arbitration rules to remove arbitrators who fail to possess the necessary qualities to sit in arbitral proceedings. It then evaluates the reasons for challenge and discusses some important cases that addressed challenges. The book assesses appointments and removals in a multifaceted and comprehensive way, and includes a critical assessment of the reasons and calls for reform of the ISDS system.

Tobacco Regulation, International Investment Arbitration and the Fragmentation of International Law – The Grand River Enterprises Case

2011 ◽  
Vol 2 (2) ◽  
pp. 267-273
Author(s):  
Benedikt Pirker
Keyword(s):  
Native American ◽  
International Law ◽  
United States Public Health ◽  
International Investment ◽  
Tobacco Regulation ◽  
Canadian Native ◽  
Grand River ◽  
Nafta Chapter 11 ◽  
Fragmentation Of International Law

In the recent Grand River Enterprises case, United States public health regulations on protection from tobacco products successfully withstood a challenge by Canadian Native American investors under NAFTA chapter 11 arbitration. The arbitrators carefully weighed the investors’ rights and the regulatory freedom of the host state under the NAFTA rules. The treatment of other norms of international law on the protection of indigenous peoples, however, merits some criticism.

The Role of Regional Courts in the Development of International Investment Law: The Case of NAFTA Chapter 11 Dispute Settlement Framework and ECtHR

2018 ◽  
Vol 11 (1) ◽  
pp. 77-95
Author(s):  
Collins C. Ajibo
Keyword(s):  
Human Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
European Court ◽  
Margin Of Appreciation ◽  
Investment Law ◽  
Nafta Chapter 11

AbstractRegional courts have synthesized, articulated, and elucidated certain principles of law that influence the development of international investment law. The contributions of NAFTA Chapter 11 dispute settlement framework and European Court of Human Rights (ECtHR), in particular, have been outstanding. For instance, NAFTA jurisprudence has guided investor-state dispute settlement (ISDS) tribunals through influential precedents. Similarly, the doctrine of proportionality and the margin of appreciation doctrine which emerged from the ECtHR jurisprudence have become embedded in international investment law. Indeed, given the unique contributions of regional courts and their rapid proliferation, it can be predicted that they will play even more significant roles in the future development of principles of international investment law. Arguably, such emergent principles should be subjected to a prior scrutiny and filtering by ISDS institutions as a precondition to full incorporation into international investment law to foster their legitimacy and credibility.

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.

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.

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