The New Gold Standard? Empirically Situating the Trans-Pacific Partnership in the Investment Treaty Universe

2016 ◽  
pp. 339-373 ◽  
Author(s):  
Wolfgang Alschner ◽  
Dmitriy Skougarevskiy
Keyword(s):  
High Standard ◽  
Trade Agreement ◽  
International Investment ◽  
Legal Analysis ◽  
Investment Protection ◽  
Brics Countries ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Agreements

The Trans-Pacific Partnership (TPP) has been labeled a ‘new, high-standard trade agreement’. But just how ‘new’ and ‘high’ are the standards it sets? To answer that question we combine traditional legal analysis with computational text comparisons situating the TPP in the universe of international investment agreements (IIAs). We find that the TPP investment chapter offers few truly novel features — 81% of its text is taken from prior American treaties. Compared to the majority of IIAs, however, the TPP goes beyond existing practice: it sets high levels of investment protection, explicitly safeguards host state sovereignty and establishes a sophisticated investment arbitration architecture. Nevertheless, the TPP is unlikely to revolutionize the IIA universe. Its innovations are open to circumvention given that older treaties remain in force parallel to the TPP. Moreover, as disagreement persists with Europe and BRICS countries, the TPP is unlikely to serve as a template for future multilateralization.

Investment Arbitration in East Asia and the Pacific

2015 ◽  
Vol 16 (5-6) ◽  
pp. 800-842 ◽  
Author(s):  
Claudia T. Salomon ◽  
Sandra Friedrich
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Investment Protection ◽  
The Past ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
The Pacific ◽  
Investment Patterns ◽  
Investment Agreements ◽  
Trade And Investment

Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region’s continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IIAs. On the heels of this development, the region has seen a rising number of investment arbitrations. As of December 2014, at least 49 investment arbitrations have been brought against EAP countries and/or by EAP investors. Most recently, the number of new cases has picked up pace significantly, making the region a veritable ‘hot bed’ of investment arbitration.

scholarly journals Constitutionality of the Colombia-France Bilateral Investment Treaty

2020 ◽  
Vol 114 (3) ◽  
pp. 471-478
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
International Investment ◽  
Constitutional Court ◽  
Investment Treaty ◽  
Adverse Impacts ◽  
International Investment Agreements ◽  
The Government ◽  
Benefits And Costs ◽  
Investment Agreements ◽  
Practical Implications

In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.

HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA BILATERAL INVESTMENT TREATY

2019 ◽  
Vol 68 (3) ◽  
pp. 761-770 ◽  
Author(s):  
Niccolò Zugliani
Keyword(s):  
Human Rights ◽  
International Investment ◽  
African Countries ◽  
Socially Responsible ◽  
Bilateral Investment Treaty ◽  
International Investment Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Fertile Ground ◽  
Investment Agreements

AbstractThe 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

Part II Guide to Key Preliminary and Procedural Issues, 7 The Fate of Frivolous and Unmeritorious Claims

2018 ◽  
Author(s):  
Yannaca-Small Katia ◽  
Earnest David
Keyword(s):  
Current Trend ◽  
International Investment ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Agreements

The term ‘frivolous’ is sometimes used to describe a claim which is filed with knowledge that it has little or no chance of succeeding. This chapter examines the procedures available under international investment agreements and international arbitration rules to address on a preliminary and expedited basis claims that are frivolous in the sense of being baseless and unmeritorious, regardless of claimant’s motives. The current trend towards preliminary and expedited consideration of a request that an application in investor-state arbitration be dismissed as frivolous is rooted in the 2004 US Model Bilateral Investment Treaty and the 2006 amendment to the International Centre for Settlement of Investment Dispute (ICSID) Rule 41(5). There is also an emerging focus on the summary disposition of such frivolous claims in international arbitration rules traditionally concerned with commercial arbitration.

Part II Guide to Key Preliminary and Procedural Issues, 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Kostadinova Milanka
Keyword(s):  
International Investment ◽  
Chamber Of Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Treaties ◽  
International Chamber Of Commerce ◽  
Investment Agreements ◽  
Investment Treaty Arbitration

The institution of treaty-based proceedings in a particular forum or under particular set of arbitration rules depends on the consent provisions of the underlying investment treaty. Some 767 arbitration cases have been initiated so far under the total of 3,324 bilateral investment treaties and other international investment agreements signed to date. This chapter provides an overview of the technical and fairly complex procedures for initiating proceedings and constituting tribunals in investment treaty arbitration. It examines the prevalent practices from the perspective of the International Centre for Settlement of Investment Dispute (ICSID) Convention and Rules, and other leading sets of international arbitration rules such as the United Nations Commission on International Trade Law Arbitration Rules, the Rules of Arbitration of the International Chamber of Commerce, and the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, which are among the non-ICSID Rules more commonly referenced in investment treaties.

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.

scholarly journals Potential Investor Claims and Possible State Defences During the Covid-19 Emergency

2021 ◽  
Vol 5 (2) ◽  
pp. 236
Author(s):  
Sefriani Sefriani ◽  
Seguito Monteiro
Keyword(s):  
Public Transportation ◽  
International Investment ◽  
Equal Treatment ◽  
National Treatment ◽  
Investment Treaty ◽  
International Solidarity ◽  
International Investment Agreements ◽  
Force Majeure ◽  
The Government ◽  
Investment Agreements

Since it was announced as a public health emergency of international concern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are numerous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of investors. This study has three purposes: investors' potential claims to challenge state measures addressed to Covid-19, the legal defences of states, and the possibility of an international investment dispute. This study shows that investors' potential claims may be delivered based on violations of the principles of fair and equal treatment, full protection and security, and national treatment and the most favoured nations. While a state can defend itself based on the principles of force majeure and state necessity, states can also defence through Non preclude measures or right to regulate clause in international investment agreements. In addition, it would also be better to build international solidarity and cooperation to mitigate and defeat the Covid-19 pandemic than sue the government before ISDS. States need collective action to avoid a surge of investor-state Arbitration. Governments’ policy to combat Covid-19 is to be considered as acting in necessity and therefore cannot be found in breach of their investment treaty obligations as long as that policy meet the necessity, proportionate, and non-discrimination requirements.

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