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.

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

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.

Part IV Guide to Key Substantive Issues, 23 The MFN Clause and Its Evolving Boundaries

2018 ◽  
Author(s):  
Smutny Abby Cohen ◽  
Polášek Petr ◽  
Farrell Chad
Keyword(s):  
Dispute Settlement ◽  
Primary Concern ◽  
Dispute Settlement Mechanism ◽  
Investment Treaty ◽  
Trade Practice ◽  
Defined Benefits ◽  
The Right ◽  
Procedural Rights ◽  
Trade And Investment ◽  
Settlement Mechanism

This chapter discusses most-favoured-nation (MFN) clauses from early references in trade agreements to contemporary references in investor-state arbitrations. MFN clauses originated in early international trade practice and have continued to be incorporated in modern trade and investment treaties, both bilateral and multilateral. Their intended purpose is to lessen discrimination and encourage the growth of trade and foreign investment by ensuring that certain defined benefits accorded to one set of States (or their nationals, investments, goods, etc.) are extended to other States (or their nationals, investments, goods, etc.). In the investment treaty context, some commentators have observed that the right to a favourable dispute settlement mechanism is the primary concern of foreign investors, and investors often invoke MFN clauses to secure procedural rights that might otherwise be unavailable to them.

The Strategic Use of International Investment Law in Colombia – Textiles: Navigating within the International Regime Complex for Development

2020 ◽  
Vol 13 (1) ◽  
pp. 31-58
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
Dispute Settlement ◽  
Legal Protection ◽  
World Trade Organisation ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
International Investment Law ◽  
Investment Treaty ◽  
Wto Dispute Settlement ◽  
Investment Law ◽  
Settlement Mechanism

AbstractTrade-based money laundering (TBML) is a major concern in Colombia, where criminal organisations employ under-invoicing to conceal drug-trafficking proceeds. In response, Colombia imposed a compound tariff on certain Panamanian importations that were considered linked to this phenomenon. Alleging that the policy measure infringed Colombia’s tariff concessions, Panama activated the World Trade Organisation (WTO) dispute settlement mechanism. The dispute revolved around Article II:1 of the General Agreement on Tariff and Trade 1994. Colombia argued that this norm should be interpreted as to encompass licit trade only. Colombia looked for normative support in the investment treaty regime by establishing a parallel between undervalued imports and illegal investments. Therefore, just as investment treaty tribunals abstain from extending international legal protection to illegal investments, the WTO adjudicating bodies should not extend tariff concessions to importations linked to TBML activities. This article contends that by transplanting a more favourable doctrine of legality from the investment treaty regime to the multilateral trade regime, Colombia engaged in strategic regime shifting. Accordingly, drawing on regime complexes analysis, the article argues that by considering development a common issue-area, it is possible to articulate strategic connections between both regimes.

Reconsideration of Proper Remedies in Investment Arbitration in Light of Recent Cases: Should the Remedy Follow the Primary Obligation?

2021 ◽  
Vol 22 (1) ◽  
pp. 129-159
Author(s):  
Berk Demirkol
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Dispute Settlement Mechanism ◽  
Private Interests ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Settlement Of Disputes ◽  
Settlement Mechanism

Abstract Remedies available within a particular system are closely connected with the types and diversity of disputes brought to, and with the purpose and the structure of, the special dispute settlement mechanism. Investment arbitration is a mechanism for settlement of disputes between States and foreign investors who have made by definition mid- to long-term projects in the State concerned. Such claims are brought for the protection of private interests of investors, but they are mostly based on public international law obligations and subject to State responsibility principles. Institutional and procedural rules, as well as systemic features of investment arbitration play an important role in the determination of which remedies are available and provide suitable relief within this dispute settlement mechanism. The main argument of this article is that substantive characteristics of primary obligations should be taken into account, along with procedural considerations, in the determination of which remedies are available in investment treaty arbitration.

scholarly journals China (Shanghai) Pilot Free Trade Zone Investor-State Dispute Settlement: An Uncertain Experiment

2017 ◽  
pp. 673-711
Author(s):  
Gonzalo Villalta Puig ◽  
Sabrina Leung Tsam Tai
Keyword(s):  
Free Trade ◽  
Foreign Investment ◽  
Legal Status ◽  
Dispute Settlement ◽  
Free Trade Zone ◽  
Dispute Settlement Mechanism ◽  
Republic Of China ◽  
Management Method ◽  
Legal Uncertainty ◽  
Settlement Mechanism

The China (Shanghai) Pilot Free Trade Zone (PFTZ) is the first free trade zone of the People’s Republic of China (PRC). It seeks to reform the national economy and open it up to foreign investment. This article argues that the suite of legal instruments that establish the PFTZ – the Framework Plan, the Negative List, the Decision, and the Management Method – are legally uncertain and that their legal uncertainty could cause disputes between PFTZ investors and the PRC. To address the problem of legal uncertainty, the article proposes, first, the adoption of a rational connection to the PFTZ as the test for jurisdiction of the PFTZ Court and the PFTZ Court of Arbitration; secondly, the enactment of the Negative List and the Decision as laws in order to clarify their legal status; and, thirdly, a reform of the PFTZ dispute settlement mechanism under the Management Method into an arbitral system.

The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective

2019 ◽  
Vol 4 (1) ◽  
pp. 124-146
Author(s):  
Lorraine de Germiny ◽  
Nhu-Hoang Tran Thang ◽  
Duong Ba Trinh
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
Investment Protection ◽  
Investment Treaty ◽  
Resolution System ◽  
Definition Of ◽  
Settlement Mechanism ◽  
Dispute Resolution System ◽  
The Eu

The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remainsto be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the evipa drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The evipa may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.

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