The Diversity Deficit in International Investment Arbitration

2020 ◽  
Vol 21 (2-3) ◽  
pp. 410-440
Author(s):  
Andrea K. Bjorklund ◽  
Daniel Behn ◽  
Susan D. Franck ◽  
Chiara Giorgetti ◽  
Won Kidane ◽  
...  
Keyword(s):  
Dispute Settlement ◽  
World View ◽  
International Investment ◽  
Group Iii ◽  
Trade Law ◽  
International Trade Law ◽  
System 2 ◽  
Global North ◽  
Key Issues ◽  
Area Of Concern

Abstract The United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS (Investor-State Dispute Settlement) Reform considers issues of adjudicator diversity to be an area of concern for the legitimacy of the ISDS system. Studies show that nearly all of the most prominent and repeatedly appointed arbitrators in ISDS cases are men from the Global North with significant prior experience in ISDS cases. Rather than being seen as fair, just, and devoid of bias, decisions are sometimes suspected to be the products of adjudicators who share a particular world view. This article focuses on four key issues: (1) how a lack diversity affects the real and perceived legitimacy of the ISDS system; (2) empirical evidence on the current extent of the diversity problem in ISDS; (3) the causes of the perpetuation of the diversity deficit in ISDS; and (4) what can be done to improve diversity in ISDS.

scholarly journals Parsing and Managing Inconsistency in Investor-State Dispute Settlement

2020 ◽  
Vol 21 (2-3) ◽  
pp. 336-373
Author(s):  
Julian Arato ◽  
Chester Brown ◽  
Federico Ortino
Keyword(s):  
Dispute Settlement ◽  
Legal Interpretation ◽  
Structural Rules ◽  
Group Iii ◽  
Legal Rules ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Key Issues ◽  
Rules Of The Game

Abstract Inconsistency in legal interpretation is among the most salient problems in investor-State dispute settlement (ISDS) and it is one of the key issues being addressed by the reform efforts in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. While some degree of interpretive inconsistency is endemic to any legal order, systemic inconsistency tends to undermine the basic purposes of the investment treaty regime – namely protecting and promoting foreign direct investment through predictable international legal rules and institutions. This article seeks to parse the problem of inconsistency at a more granular level, in order to distinguish between types of norms where a degree of inconsistency is (relatively) manageable and (potentially) tolerable, and those where inconsistency is unacceptable. We argue that it is with regard to structural ‘rules of the game’ where inconsistency is most destructive.

13. International Economic Law

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Economic ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Protection ◽  
Economic Law ◽  
Trade Law ◽  
International Trade Law ◽  
International Economic Law ◽  
The World

This chapter begins by defining international economic law. It then discusses the main international economic institutions: the World Trade Organization, the International Monetary Fund and the World Bank. It goes on to elaborate on the key principles of international trade law: tariffication, binding tariffs, most favoured nation treatment and the national treatment obligation and discusses exceptions to these principles, anti-dumping and subsidies, regional trade arrangements, and developing States and dispute settlement within the WTO. The chapter also discusses the key principles of international investment law (including foreign direct investment, protection standards, expropriation and dispute settlement); the international financial architecture; and international economic law and State sovereignty.

Independence and Impartiality of Adjudicators in Investment Dispute Settlement: Assessing Challenges and Reform Options

2020 ◽  
Vol 21 (2-3) ◽  
pp. 441-474
Author(s):  
Chiara Giorgetti ◽  
Steven Ratner ◽  
Jeffrey Dunoff ◽  
Shotaro Hamamoto ◽  
Luke Nottage ◽  
...  
Keyword(s):  
Comparative Analysis ◽  
Dispute Settlement ◽  
Present System ◽  
Fundamental Issue ◽  
Policy Makers ◽  
International Courts ◽  
Group Iii ◽  
Trade Law ◽  
International Trade Law ◽  
Dispute Resolution Mechanism

Abstract As discussions on the reform of investor-State dispute settlement deepen and gather momentum at the United Nations Commission on International Trade Law (UNCITRAL), this article delves into a specific and fundamental issue: the requirement that adjudicators in investment disputes are and remain independent and impartial. It begins by explaining the principle of independence and impartiality in international courts and tribunals, with a focus on arbitral institutions. The article then highlights a range of specific concerns that the present system of investor-State arbitration raises in respect of independence and impartiality. Finally, it provides a comparative analysis of how different reform proposals presently discussed within UNCITRAL Working Group III would fare in terms of delivering a dispute resolution mechanism that ensures independence and impartiality. Rather than providing one specific solution, this article assesses the different options discussed, with the aim to help both policy-makers considering reform and other stakeholders and scholars.

scholarly journals Trends and ISDS Backlash Related to Non-Disputing Treaty Party Submissions

2021 ◽  
pp. 79-96
Author(s):  
Kendra Magraw
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Apparent Lack ◽  
Trade Law ◽  
International Trade Law ◽  
The North ◽  
International Investment Agreements ◽  
Limited Basis ◽  
The Many

AbstractSome international investment agreements (IIAs) allow states that are parties to a treaty, but are not party to a specific dispute under that treaty, to intervene on a limited basis in order to make submissions on matters of treaty interpretation. Such mechanisms have proved to be highly valued by treaty parties, as evident by the many recently-concluded IIAs containing increasingly sophisticated non-disputing treaty party (NDTP) provisions. This chapter: (1) provides the background on NDTPs mechanisms, with a focus on the North American Free Trade Agreement (NAFTA) (the first-known IIA to contain such a provision); (2) examines the possible connection between tribunals failing to give due regard to treaty parties’ interpretive positions (again focusing on NAFTA) and the current backlash against investor-state dispute settlement (ISDS); and (3) analyses trends in recently-concluded IIAs. It is argued that the apparent lack of deference given by tribunals to NDTP submissions may be contributing to the current backlash against ISDS, based on two discernible trends: (1) an increase in the number of IIAs containing NDTPs provisions; and (2) provisions that now state that not only are treaty interpretations made by treaty parties binding on tribunals (such provisions also have their genesis in NAFTA), but that, in addition, tribunals’ decisions must be consistent with such agreed interpretations (the latter an innovation of a NAFTA party in 2003). Such trends are also visible at the institutional and multilateral levels, such as the revision of the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) and the Mauritius Convention on Transparency in ISDS of the United Nations Commission on International Trade Law (UNCITRAL), and show no sign of slowing down.

Part IV The Impact of International Investment Law, 17 Investor–State Dispute Settlement

2021 ◽  
Author(s):  
Muchlinski Peter T
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Principal Characteristics ◽  
International Investment Law ◽  
Trade Law ◽  
International Trade Law ◽  
International Investment Agreements ◽  
Procedural Costs ◽  
New Generation ◽  
The Impact

This chapter studies investor–state dispute settlement (ISDS) in International Investment Agreements (IIAs), the primary method of which is investor–state arbitration. It outlines the nature of investor–state disputes and the main types of dispute settlement techniques. The chapter also considers the principal characteristics of investor–state arbitration and examines arbitration under the Washington Convention on Settlement of Investment Disputes between States and Nationals of Other States 1965 (the ICSID Convention), which established the International Centre for Settlement of Investment Disputes (ICSID). Most Bilateral Investment Treaties (BITs) refer to ICSID arbitration as the sole, or optional, method of dispute settlement. ICSID Tribunals have acted in a wide range of disputes, adopting expansive interpretations of personal and subject-matter jurisdiction. This has led to criticism that investor–state arbitration has become too pervasive and a threat to the states’ ‘right to regulate’, given the risk of high procedural costs and compensation. ‘New-generation’ IIAs have responded by limiting the jurisdiction of tribunals over investment disputes. Moreover, recourse to alternative dispute resolution (ADR) and dispute avoidance techniques is being encouraged. The United Nations Commission on International Trade Law (UNCITRAL) has also taken up ISDS reform and is in the process of formulating a multilateral reform package.

Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 3 International Investment Dispute Settlement Mechanisms

2018 ◽  
Author(s):  
Onwuamaegbu Ucheora
Keyword(s):  
International Trade ◽  
United Nations ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
Chamber Of Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
International Court ◽  
International Chamber Of Commerce

This chapter begins by introducing the three institutions under whose auspices treaty-based investor-state arbitration proceedings have most commonly been conducted: the International Centre for Settlement of Investment Disputes (ICSID), the International Court of Arbitration of the International Chamber of Commerce (ICC), and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). Following a general overview of the three institutions, it examines certain procedural issues that may be considered by parties in deciding among them, assuming that consent exists. The intention is to highlight certain provisions in their arbitration rules that best demonstrate the main differences between them. Finally, the chapter examines the Rules of the United Nations Commission on International Trade Law under which the majority of ad hoc investor-state arbitrations have so far been conducted and draws certain contrasts between them and the rules of the institutions earlier discussed.

Fragmentation in international trade law: insights from the global investment regime

2013 ◽  
Vol 12 (4) ◽  
pp. 621-652 ◽  
Author(s):  
ADRIAN M. JOHNSTON ◽  
MICHAEL J. TREBILCOCK
Keyword(s):  
International Trade ◽  
Dispute Settlement ◽  
Legal Framework ◽  
International Investment ◽  
Institutional Dynamics ◽  
Trade Regime ◽  
Trade Relations ◽  
Trade Law ◽  
International Trade Law ◽  
Treaty Interpretation

AbstractWith World Trade Organization negotiations stagnant, and preferential trade agreements (PTAs) rapidly proliferating, international trade relations are shifting markedly toward bilateralism. The resulting fragmentation in the international trade regime poses serious risks to economic welfare and the coherence of international trade law. Similar challenges have been faced in the international investment regime, which is comprised of a highly fragmented network of bilateral investment treaties (BITs). However, scholars have identified several mechanisms that promote harmonization in the international investment regime. Among these are cross-treaty interpretation in dispute settlement and the inclusion of most-favoured nation (MFN) clauses in BITs. This paper assesses the scope for these two mechanisms to emerge in the international trade regime by comparing the legal framework, institutional dynamics, and political economy of the trade and investment regimes. The analysis suggests that cross-treaty interpretation is likely to emerge in the trade regime as PTA dispute settlement activity increases and that greater use of MFN clauses in PTAs is a viable possibility. These developments would mitigate the effects of fragmentation and advance harmonization in the international trade regime.

scholarly journals Kierunki reformy arbitrażu inwestycyjnego w ramach prac Grupy Roboczej III UNCITRAL

2020 ◽  
pp. 253-281
Author(s):  
Jacek Zrałek
Keyword(s):  
Working Group ◽  
International Investment ◽  
Historical Background ◽  
Current Crisis ◽  
Polish Literature ◽  
Group Iii ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Arbitration ◽  
Future Direction

The goal of the study is to briefly present the work on the reform of investment arbitration under the auspices of the United Nations Commission on International Trade Law (UNCITRAL) and to indicate the directions in which further discussion on this reform could potentially go. The Commission entrusted to Working Group III to work on the reform of international investment dispute resolution mechanisms. The ongoing debate in this area has met with very little interest in Polish literature. It is surprising since its outcome may have an impact on future investment policy also in Poland. The work is divided into five parts. The first part presents the scope of the work and the research methodology. The second one presents a very concise historical background for the establishment of investment arbitration, taking into account the key features underlying current crisis of this institution. The third part briefly outlines the course of work of UNCITRAL Working Group III. This section provides a background to show how negotiations are progressing, what major obstacles negotiators are facing and what the future direction of the Working Group’s work might be. These issues are discussed in the fourth part of the study. Author’s opinion on anticipated development of further discussion is presented in the closing remarks.

scholarly journals Special Issue: UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions

2020 ◽  
Vol 21 (2-3) ◽  
pp. 167-187
Author(s):  
Malcolm Langford ◽  
Michele Potestà ◽  
Gabrielle Kaufmann-Kohler ◽  
Daniel Behn
Keyword(s):  
Dispute Settlement ◽  
Reform Process ◽  
Potential Contribution ◽  
Special Issue ◽  
Group Iii ◽  
Trade Law ◽  
International Trade Law ◽  
Wide Range ◽  
Treaty Reform ◽  
Legitimacy Crisis

Abstract The ongoing ‘legitimacy crisis’ in investor-State dispute settlement (ISDS) has triggered a comprehensive attempt at multilateral reform. In 2017, Working Group III at the United Nations Commission on International Trade Law (UNCITRAL) was entrusted with a broad, open-ended and problem-driven mandate. The reform process aims to tackle particular concerns with ISDS: excessive costs and lengthy proceedings, inconsistent and incorrect decisions, and a lack of arbitral diversity and independence. The exclusion of substantive treaty reform has met critique but states are considering a wide range of procedural options from incremental reform to a multilateral court, appellate mechanism, and ISDS alternatives. In this article, we introduce the reform process and the seven articles that follow in this Special Issue of the Journal on World and Investment and Trade. In these contributions, ISDS Academic Forum members analyse the basis for each concern and the potential contribution of leading reform models.

On Inter-Disciplinary and Inter-Systemic Approaches to International Investment Law

2015 ◽  
pp. 557-572 ◽  
Author(s):  
Jürgen Kurtz
Keyword(s):  
International Investment ◽  
State Regulation ◽  
Expiry Date ◽  
International Investment Law ◽  
Secondary Literature ◽  
Trade Law ◽  
International Trade Law ◽  
Law And Policy ◽  
State Practice ◽  
Investment Law

This review essay identifies two fundamental flaws in much of the secondary literature examining international investment law. The first is a clear attention to disciplines other than law in identifying and understanding the justifications for constraints on state regulation vis-à-vis foreign investment. Secondly, there are stubborn vestiges of self-containment among a sizeable set of legal commentators in this field. This typically reaches its apotheosis in instinctive and hostile opposition to usage of lessons and techniques employed in international trade law. Measured against the direction and nature of contemporary state practice, this type of older commentary is rapidly approaching an overdue expiry date. Prospects in International Investment Law and Policy marks a welcome and significant break from these flawed pathologies. Many of the contributions will shape the contours of innovative and important scholarship in this field. It is a collection that merits careful and repeated consideration.

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