Dispute Settlement in EU International Investment Agreements with Third States: Three Salient Problems

2014 ◽  
Vol 15 (3-4) ◽  
pp. 551-569 ◽  
Author(s):  
Markus Burgstaller
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Preliminary Ruling ◽  
International Investment Agreements ◽  
Investment Agreements

The eu institutions are committed to include investor-State arbitration clauses in eu iias with third States. However, there are at least three unresolved problems in doing so. First, the eu is not, and is unlikely to become, a Contracting Party to the icsid Convention. While this deficiency may be remedied by replicating relevant provisions of the icsid Convention, eu investors cannot benefit from icsid’s institutional clout which could facilitate enforcement of awards. Secondly, there may be problems from an eu law perspective. Arguably, the eu could only include investor-State arbitration clauses in eu iias with third States following a change in eu primary law such that investment tribunals could request a preliminary ruling from the cjeu in accordance with Article 267 tfeu. Thirdly, to date there appears to be no agreement within the eu on the question who will be the proper respondent in an arbitration.

Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?

2021 ◽  
pp. 1-26
Author(s):  
CÉLINE LÉVESQUE
Keyword(s):  
Working Group ◽  
Dispute Settlement ◽  
Code Of Conduct ◽  
International Investment ◽  
Group Iii ◽  
Investment Promotion ◽  
Long Run ◽  
International Investment Agreements ◽  
The Subject ◽  
Investment Agreements

Abstract The practice of arbitrators and counsel in investor-state dispute settlement (ISDS) cases simultaneously playing both roles — known as “double-hatting” — has been the subject of much controversy in recent debates on ISDS reform, notably, at the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III where a Draft Code of Conduct for Adjudicators in International Investment Disputes is under discussion. While Canada has been less than consistent in its approaches to ISDS in recent international investment agreements (IIAs), its position against double-hatting has been rather constant. This article explores whether this stance reveals a commitment on the part of Canada towards increased judicialization of ISDS or reflects a “flavour of the month” reform likely to change with differing IIAs and negotiating partners. Analysis of Canada’s recent IIA practices, including its model Foreign Investment Promotion and Protection Agreement, released in May 2021, and the positions it has taken at UNCITRAL’s Working Group III, lead the author to conclude that Canada appears committed to increased judicialization of ISDS in the long run.

Investment Protection in Disputed Maritime Areas

2018 ◽  
Vol 19 (5-6) ◽  
pp. 828-859
Author(s):  
Peter Tzeng
Keyword(s):  
Dispute Settlement ◽  
Political Risk ◽  
International Investment ◽  
Joint Development ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Protection Mechanisms ◽  
United Nations Convention ◽  
Risk Insurance ◽  
Investment Agreements

Abstract Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

Africa and the Rethinking of International Investment Law

2018 ◽  
Author(s):  
Makane Moïse Mbengue ◽  
Stefanie Schacherer
Keyword(s):  
Sustainable Development ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Reform Process ◽  
International Investment Law ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter seeks to present and to contextualize the Pan-African Investment Code (PAIC) by taking a comparative international law approach. Such approach allows us to assess whether the PAIC is an Africa-specific instrument and whether it is unique today in how it incorporates sustainable development concerns. This is particularly interesting for the ongoing global reform process of international investment law. The chapter is divided into five main sections. Section II provides an overview of international investment agreements concluded by African States. Section III presents the origins of the PAIC. Section IV addresses the important question as to what extent the PAIC incorporates traditional investment standards or breaks with them. Section V explores the most innovative aspects of the PAIC. Section VI examines the PAIC and dispute settlement.

Korea’s Experience with International Investment Agreements and Investor-State Dispute Settlement

2015 ◽  
Vol 16 (5-6) ◽  
pp. 952-980 ◽  
Author(s):  
Hi-Taek Shin ◽  
Liz (Kyo-Hwa) Chung
Keyword(s):  
Dispute Settlement ◽  
Developing Economies ◽  
International Investment ◽  
International Investment Law ◽  
International Investment Agreements ◽  
The Face ◽  
Public Scrutiny ◽  
Investment Law ◽  
Investment Agreements ◽  
Korus Fta

Korea’s network of international investment agreements (IIAs), comprising 94 BITs and nine FTAs with investment chapters, demonstrates that attracting foreign investment to Korea and protecting Korean investors overseas has been an important policy aspect. However, little attention was paid to these agreements until 2006 when negotiations for the Korea-United States (KORUS) FTA began. These negotiations sparked public criticism and heated debates of investor-State dispute settlement. Whereas Korea had routinely accepted the IIA provisions presented by developed counter-parties and used them as a template when negotiating with developing economies in the past, Korean IIA practice changed substantially following the KORUS FTA. In the face of heightened public scrutiny, Korea began to critically review key features of its IIAs and developed its own position on some important issues. This article examines these developments, considering that Korea will play a key role in shaping international investment law in the future, particularly in Asia.

Local Litigation Requirements in International Investment Agreements: Their Characteristics and Potential in Times of Reform in Latin America

2016 ◽  
Vol 17 (4) ◽  
pp. 536-561
Author(s):  
Facundo Pérez Aznar
Keyword(s):  
Latin America ◽  
Latin American ◽  
Dispute Settlement ◽  
Good Governance ◽  
International Investment ◽  
International Investment Agreements ◽  
Domestic Courts ◽  
Investment Agreements ◽  
Latin American Countries

A number of international investment agreements (IIAs) set out a ‘local litigation requirement’, i.e. specify that recourse to investor-State arbitration becomes possible only after a certain period of time spent litigating in domestic courts. Numerous tribunals have dealt with this type of provision but they have followed different approaches as to its nature, function and scope, or as to whether non-compliance with it can be excused. This article focuses on the different aspects of local litigation requirement clauses in search of an interpretation that gives effectiveness to the provision, paying particular attention to the experience of Latin American countries and arbitral decisions discussing this topic, which in most cases involve countries from this region. It is argued that this precondition has an enormous potential to foster good governance and could serve to achieve a better coexistence between investor-State dispute settlement (ISDS) and local tribunals.

scholarly journals The Energy Charter Treaty, Frivolous Claims and the Looming Threat of Investor-state Dispute Settlement: Any Hope from the EU’s Modernisation Proposal?

2021 ◽  
Vol 8 (2) ◽  
pp. 270-287
Author(s):  
Oskari Vaaranmaa
Keyword(s):  
Dispute Settlement ◽  
Fossil Fuel ◽  
International Investment ◽  
Legal Action ◽  
Energy Company ◽  
International Investment Agreements ◽  
Energy Charter Treaty ◽  
Phase Out ◽  
Investment Agreements ◽  
Complex Cases

The system of investor-state dispute settlement (‘ISDS’) is being increasingly perceived as a hindrance to States’ efforts to regulate against climate change. A potential scenario for this concern is that, as more robust environmental regulation is made, investors who have been adversely impacted in the fossil fuel sector, will threaten to sue States under international investment agreements (‘IIAs’). This is not just a hypothetical concern. Recently, German energy company Uniper has threatened to take legal action against Netherlands for its coal phase out plan. Against this backdrop, contracting parties to the Energy Charter Treaty (‘ECT’), the world’s most widely invoked IIA, are attempting to modernise the ECT to, inter alia, better accommodate States’ right to regulate. Amongst the proposed amendments is the inclusion of a provision on frivolous claims, under which claims that are found to be legally untenable can be summarily dismissed. This paper will put forward the argument that, based on existing jurisprudence on frivolous claims and the European Union’s (‘EU’) proposal, the provision will likely be too weak to effectively address the types of cases that ECT contracting parties are concerned about. In other words, as far as the prevailing line of jurisprudence is concerned, the vast majority of the anticipated cases will be too legally and factually complicated to be addressed on a summary basis. That is unless Tribunals interpreting the modernised ECT make a conscious effort to broaden the provision’s applicability to more complex cases.

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