Inter-State Investment Dispute Settlement in Latin America: Is There Space for Transparency?

2016 ◽  
Vol 17 (4) ◽  
pp. 634-657
Author(s):  
María José Luque Macías
Keyword(s):  
Latin America ◽  
Dispute Settlement ◽  
International Investment ◽  
Attractive Alternative ◽  
Wto Dispute Settlement ◽  
International Investment Agreements ◽  
Treaty Interpretation ◽  
Dispute Settlement System ◽  
Investment Agreements ◽  
Inter State

Reinforcing inter-State dispute settlement gradually constitutes an attractive alternative in Latin America to overcome the lack of predictability in the interpretation and application of international investment agreements (IIA). Procedural transparency should certainly be part of this development. An initial question is whether, and if so to which extent, this approach serves reform. The next question is whether relying on the practice of the World Trade Organization (WTO) is appropriate to enhance transparency, considering that the WTO dispute settlement system has served as a model for introducing reforms in inter-State and investor-State dispute settlement (ISDS). This article shows that resorting to inter-State mechanisms may not remedy deficits of treaty interpretation or application. Furthermore, the WTO experience on procedural transparency reveals that transparency has not become an essential standard, so that other means shall be devised for ensuring, in inter-State dispute settlement, the degree of transparency attained so far in ISDS.

scholarly journals Multilateral Investment Court – a Cure for Investor-State Disputes Under Extra-EU International Investment Agreements?

2021 ◽  
Vol 9 (1) ◽  
pp. 195-211
Author(s):  
Agata Zwolankiewicz
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Trade Law ◽  
Wto Dispute Settlement ◽  
International Investment Agreements ◽  
International Economic Law ◽  
Dispute Settlement System ◽  
Investment Agreements

Both branches of international economic law – international investment and trade law are currently in crisis. Many reforms have been proposed to cure the shortcomings of their dispute resolution mechanisms. Distinctive though they are, it seems that the newest EU’s proposal to establish the Multilateral Investment Court is heavily inspired by the dispute settlement system which exists in the World Trade Organization. The new system has been introduced to replace the investor-State dispute settlement mechanism existing in most investment treaties. In this article, the author assesses the objectives of the reform through the prism of successes and failures of the WTO dispute settlement system. 

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.

The Proliferation of Joint Interpretation Clauses in New International Investment Agreements: A Mixed Blessing?

2020 ◽  
Author(s):  
Loris Marotti
Keyword(s):  
Dispute Settlement ◽  
General Rule ◽  
International Investment ◽  
Vienna Convention ◽  
Control Mechanisms ◽  
International Investment Agreements ◽  
Joint Interpretation ◽  
Dispute Settlement System ◽  
The Impact ◽  
Investment Agreements

Abstract Joint interpretation clauses (JICs) are among the most controversial control mechanisms on the interpretative powers of tribunals brought by the current wave of reform of the investor–State dispute settlement system (ISDS). Literally proliferating in the new generation of international investment agreements (IIAs), these clauses give contracting States the power to issue joint interpretations (JIs) that are expressly recognized as binding upon dispute settlement bodies and may even be issued in relation to matters pending before such bodies. This article discusses several issues raised by the ‘authentic interpretation’ enhanced by JICs. In the first part, JICs are assessed against the background of the general rule on treaty interpretation, including, in particular, subsequent agreements under article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties. The second part of the article addresses the tensions between judicial bodies and treaty parties sharing the interpretative authority over IIAs and investigates whether there are any limitations on the interpretative powers of States under JICs. The third part is devoted to the impact of JIs on the proper conduct of investment arbitration proceedings, considering the participation of private actors (the investors) in the proceedings and the ‘dual role’ of States (as treaty parties and respondents) in this field. The concluding part of the article speculates whether a greater institutionalization of the international investment regime is likely to prompt more frequent forms of judicial reactions against ‘ill-perceived’ JIs and fuel the tension between States and dispute settlement bodies.

scholarly journals International Investment Law and ISDS: Mapping Contemporary Latin America

2016 ◽  
Vol 17 (4) ◽  
pp. 515-535 ◽  
Author(s):  
Katia Fach Gómez ◽  
Catharine Titi
Keyword(s):  
Latin America ◽  
Latin American ◽  
Dispute Settlement ◽  
International Investment ◽  
South American ◽  
International Investment Law ◽  
Future Design ◽  
International Investment Agreements ◽  
Investment Agreements ◽  
Latin American Countries

In recent years, the negotiation and conclusion of international investment agreements (IIAs) in Latin America has gone hand-in-hand with a rethinking of investment standards and the elaboration of new IIA models. This is evident, among others, in Brazil’s cooperation and facilitation investment agreements (CFIAs), the continuing negotiations on the creation of a regional dispute settlement centre under the aegis of the Union of South American Nations (UNASUR), some recently-released investment policy documents and amendments to national arbitration laws for disputes involving the State. The article highlights such developments emphasising the broad spectrum of local approaches that vary from convergence to divergence in order to interpret Latin American countries’ position in the existing investor-State dispute settlement (ISDS) system and reveal the role that the sub-continent can play in the future design of ISDS.

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.

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.

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.

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