scholarly journals What Roles Can Constitutional Law Play in Investment Arbitration?

2014 ◽  
Vol 15 (5-6) ◽  
pp. 862-888
Author(s):  
Laurence Boisson de Chazournes ◽  
Brian McGarry
Keyword(s):  
Constitutional Law ◽  
Dispute Settlement ◽  
Case Law ◽  
Recent Case ◽  
Treaty Ratification ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Per Se ◽  
Equitable Treatment ◽  
Domestic Law

Interplays between international and domestic legal spheres have attracted increased attention in investor-State dispute settlement. From the treaty ratification process to award execution, constitutional norms play recurring roles before, during and after investment arbitrations. This contribution deals with the manner in which parties to such disputes can rely upon constitutional law or, more broadly speaking, domestic law. Notably, major hurdles to the application of domestic law in transnational fora have not necessarily constrained the arbitral profile of constitutional principles. This is because they may gain prominence through informal paths. Rather than directly applying constitutional law per se, tribunals may utilize other paths such as deferring to domestic interpretations of constitutional principles, or to constitutional procedures that appear, for example, to protect fair and equitable treatment. Reexamining recent case law through this lens of informal application, we can then envision other synergies that intermingle these regimes.

African States, Investor–State Arbitration and the ICSID Dispute Resolution System: Continuities, Changes and Challenges 

2019 ◽  
Vol 34 (2) ◽  
pp. 296-364
Author(s):  
Uché Ewelukwa Ofodile
Keyword(s):  
Public Discourse ◽  
Dispute Settlement ◽  
Case Law ◽  
International Investment ◽  
Investment Arbitration ◽  
Resolution System ◽  
Fair And Equitable Treatment ◽  
The Status ◽  
Equitable Treatment ◽  
Dispute Resolution System

Abstract Against the backdrop of growing public discourse about the usefulness, legitimacy and effectiveness of the investor-State dispute settlement (ISDS) system, this article reviews the participation of African States in international investment arbitration and analyzes some of the cases involving African States in claims initiated under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “ICSID Convention”). Specifically, the article reviews ICSID cases involving African States in which decisions were reached on the merit [i.e. the tribunal determined whether the challenged measure breached any substantive obligation in an international investment agreement (IIA)]. Focus is on cases where claimants alleged violation of the fair and equitable treatment (FET) obligation and cases where expropriation, both direct and indirect were alleged. A review of cases involving African States suggests that there is no African peculiarity or specialty in terms of the awards and analysis of arbitral tribunals. In cases involving African States, ICSID tribunals appear to be guided primarily by the provisions of applicable texts (IIAs, contracts, and legislation) and ICSID case law rather than by the status of a Respondent State as developing or least developed. The paper raises important questions about the development dimension of the ISDS system or the lack thereof, and could contribute to current debates about ISDS reform and the need for sustainable development-oriented reform of IIAs more broadly. The paper also sheds light on the risks that broad and vague provisions in IIAs pose for host States and calls attention to the capacity constraints that limit meaningful IIA reform in Africa.

Part II The International Law Framework of Investment Protection and Political Risk, 6 The Substantive Law of Contemporary International Investment Protection

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
International Law ◽  
Transition Economy ◽  
International Investment ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Substantive Law ◽  
Equitable Treatment ◽  
National Investment ◽  
Domestic Law

Investors increasingly rely on the substantive protections provided in a growing number of investment treaties. This chapter covers the modern international law of investment protection as embodied in multilateral and bilateral investment treaties, including principles such as fair and equitable treatment, and full protection and security. The substantive protections investment treaties described in this chapter are often echoed in the national investment laws of developing and transition-economy countries. In particular, many recent national investment codes place limitations on the State’s authority to expropriate foreign assets, sometimes granting rights superior to those provided at customary international law. International investment treaties also guarantee proper application of domestic law by government authorities, national treatment, repatriation of profits, compensation for breach and other standards of treatment.

scholarly journals Klausula Counter-claim dalam Bilateral Investment Treaty Indonesia

2019 ◽  
Vol 2 (6) ◽  
pp. 2219
Author(s):  
Nabilla Zelda Nasution
Keyword(s):  
Dispute Settlement ◽  
National Treatment ◽  
Bilateral Investment Treaty ◽  
Host State ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

Investor-State Dispute Settlement (ISDS) merupakan suatu mekanisme penyelesaian sengketa antara investor dan negara penerima investasi (host state) karena suatu pelanggaran terhadap Hukum Investasi Internasional. Berdasarkan data UNCTAD, alasan yang sering diajukan dalam gugatan ISDS umumnya meliputi empat hal permasalahan yakni Most Favoured Nations, National Treatment, Non Exproriation, dan Fair and Equitable Treatment. Namun pengaturan penyelesaian sengketa investasi dengan mekanisme ISDS dianggap lebih berpihak kepada pihak investor dibandingkan kepada host state karena sebagian besar IIA mengijinkan ISDS diajukan oleh investor, dan dalam prakteknya investor merupakan satu-satunya penggugat yang diizinkan. Ketidakseimbangan kedudukan para pihak dalam mekanisme ISDS memberikan pemikiran counter-claim sebagai upaya menyeimbangkan kedudukan investor dan host state dalam mekanisme ISDS. Selain itu pentingnya counter-claiim dalam mekanisme ISDS antara lain karena belum ada aturan yang seragam mengenai counter-claim, counter-claim memungkinkan responden untuk mencari keadilan di forum yang sama sehingga lebih efisien. Serta bagi host state, counter-claim dapat digunakan untuk membersihkan reputasi host state atas gugatan yang diajukan oleh investor. Penelitian ini mengkaji klausula counterclaim yang dapat diadopsi dalam BIT Indonesia sehingga dapat menyeimbangkan kedudukan para pihak dalam mekanisme ISDS, khususnya Indonesia sebagai host state. Penelitian hukum yang digunakan adalah pendekatan konseptual (conseptual approach), pendekatan perundang-udangan (statute approach), dan pendekatan kasus (case approach) dalam membahas counterclaim dalam mekanisme ISDS serta dalam menganalisa rumusan klausula counterclaim yang dapat di adopsi dalam Bilateral Investment Treaty (BIT) Indonesia.

The Application of the Principle of Proportionality to Assess Compensation: Some Reflections Arising from the Case of Joseph Charles Lemire v. Ukraine

2014 ◽  
Vol 13 (2) ◽  
pp. 199-222
Author(s):  
Sondra Faccio
Keyword(s):  
Case Law ◽  
International Investment ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Principle Of Proportionality ◽  
Equitable Treatment

In the last few years, the principle of proportionality has appeared with a certain frequency in international investment case law: arbitrators have employed it to determine whether the State’s regulatory measure under scrutiny represents a form of indirect expropriation, to assess violations of the fair and equitable treatment (‘fet’) standard, to counterbalance competing obligations drawn from international investment law and international human rights law, and to assess compensation. This article will focus on the so-called “quantum phase” – the part of the award devoted to the assessment of the monetary compensation due to the foreign investor for the breach of the investment treaty provision – and will discuss whether the principle of proportionality can effectively play a role in the assessment of compensation. The work will start from the analysis of the case of Joseph Charles Lemire v. Ukraine, where arbitrators expressly resorted to proportionality to verify whether the indemnity awarded to the claimant for the breach of the fet standard was adequate in light of the specific characteristics of the investment lato sensu and the investor, to then approach the issue of proportionality more in detail.

5. The politics of arbitration against governments

2021 ◽  
pp. 73-96
Author(s):  
Thomas Schultz ◽  
Thomas Grant
Keyword(s):  
Rule Of Law ◽  
Legal Rights ◽  
International Affairs ◽  
Government Investment ◽  
Investment Arbitration ◽  
Foreign Government ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Great Step ◽  
Full Protection

This chapter focuses on the most politically charged type of arbitration: arbitration between an investor and a foreign government. Investment arbitration marks a great step forward for rule of law in international affairs. A government does not escape responsibility by saying that its own law or courts have declared a given abuse against an investor to be lawful. Investment treaties set out substantive protections, such as fair and equitable treatment, full protection and security, and a guarantee against discriminatory expropriation. They give investors legal rights independent of domestic rules that an unfriendly government might have manipulated at the investor’s cost. The chapter then considers the emerging critique of investment arbitration.

Incitement in international criminal law

2006 ◽  
Vol 88 (864) ◽  
pp. 823-852 ◽  
Author(s):  
Wibke Kristin Timmermann
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Genocide Convention ◽  
International Criminal Tribunals ◽  
The Status ◽  
Per Se ◽  
Domestic Law

AbstractThe author critically analyses in this article the status of incitement in international criminal law. After a discussion of the relevant judgments by the Nuremberg Tribunal and related courts, including German de-Nazification courts, the travaux préparatoires of the Genocide Convention and the case-law of the International Criminal Tribunals, the international approach is criticized, particularly its practice of regarding only direct and public incitement to genocide as inchoate, whilst instigation generally is treated as not inchoate. The author recommends the adoption of an approach modelled on German and Swiss domestic law and argues that instigation per se should also be regarded as an inchoate crime.

scholarly journals ‘Caveat Investor’? The Relevance of the Conduct of the Investor Under the Fair and Equitable Treatment Standard

2006 ◽  
Vol 55 (3) ◽  
pp. 527-558 ◽  
Author(s):  
Peter Muchlinski
Keyword(s):  
Host Country ◽  
Conceptual Analysis ◽  
Case Law ◽  
Investment Risk ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

AbstractThe role that investor conduct plays in applying the fair and equitable treatment standard is relatively unexplored. On the basis of conceptual analysis, and emerging international judicial and arbitral case law, this article suggests that investor conduct is an important consideration. Investor duties are being accepted in relation to the avoidance of unconscionable conduct, the reasonable assessment of investment risk in the host country, and a duty to operate an investment reasonably. These requirements may be said to lead to a new limit upon the fair and equitable treatment standard encapsulated in the phrase ‘Caveat Investor’.

scholarly journals Is the Trans-Pacific Partnership's Investment Chapter the new "Gold Standard"?

2016 ◽  
Vol 47 (4) ◽  
pp. 503 ◽  
Author(s):  
José E Alvarez
Keyword(s):  
United States ◽  
Gold Standard ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
The United States ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

The Trans-Pacific Partnership's Investment Chapter, and particularly its inclusion of investor-state dispute settlement (ISDS), has been the focus of considerable criticism both in the United States and New Zealand. Despite huge differences between these two potential TPP partners, the anticipated economic and political benefits offered by the pact – but also the threats to democracy posed – have been expressed in similar ways by distinct stakeholders in both countries. This essay describes how this chapter is the culmination of reforms to United States investment protection treaties that began with the investment chapter of the North American Free Trade Agreement in 1994 and that are now evident in the latest United States Model Bilateral Investment Treaty (of 2012). The TPP's Investment Chapter borrows heavily from prior United States efforts to narrow investor rights (as with respect to fair and equitable treatment), expand sovereign policy space, and incorporate certain rule of law reforms. For its critics, the pact falls far short of achieving a new "gold standard" precisely because it merely reforms – but does not abandon – ISDS for its enforcement.Editor's note: The text of this article was originally accepted for publication in March 2016. Recent statements by President-elect Donald Trump indicate that the United States will likely withdraw from further participation in the Trans Pacific Partnership and refrain from ratifying the agreed text. Without the United States' ratification, the agreement will not come into force. Despite this apparent ending to the Trans Pacific Partnership, the editors consider that Professor Alvarez's article remains an extremely useful analysis of investment provisions that may well serve as a model for the negotiation of such provisions in other mega-regional trade agreements in the future.

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