Investment Arbitration and the Chimera of an Ideal Adjudicative Community

2021 ◽  
Vol 22 (5-6) ◽  
pp. 687-704
Author(s):  
Fernando Dias Simões
Keyword(s):  
Institutional Design ◽  
Prior Experience ◽  
Professional Community ◽  
Economic Incentives ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Arbitration ◽  
Professional Profile ◽  
Decision Making Processes ◽  
Object Of Study

Abstract Investment arbitrators – the men and women who adjudicate investor-State disputes – have become an object of study in their own right. Some stakeholders believe that investment arbitration’s institutional design creates perverse economic incentives, leading arbitrators to adopt strategic behaviours and biasing their decision-making processes. The United Nations Commission on International Trade Law is currently considering different models for reshaping the way adjudicators are selected and appointed. The rationale behind this reform seems to be to recruit a brand-new troupe, replete with new faces. But, more worryingly, there seems to be an obsession with the professional profile of adjudicators: prior experience in the field is increasingly perceived as a handicap, and repeat players are to be avoided like the plague. This article examines the evolution of the college of investment arbitrators and enquires about its potential future as a professional community.

Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Clodfelter Mark A ◽  
Tsutieva Diana
Keyword(s):  
International Trade ◽  
United Nations ◽  
Case Law ◽  
The Core ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Treaty Arbitration

The last decade has seen an increase in the efforts of respondent States to have their own claims against investor-claimants heard in investor-State proceedings commenced against them. The investment arbitration case law has revealed a host of legal and practical difficulties in admitting counterclaims. Most of these stem from the core requirement that parties must consent to submit their differences to investment arbitration. The applicable arbitration rules have also been cited as a bar to counterclaims. This chapter explores the functionality of applicable procedural rules as bases for an investment tribunal’s authority to hear counterclaims under the two main investment law regimes: the International Centre for Settlement of Investment Dispute (ICSID) Convention and Arbitration Rules and the United Nations Commission on International Trade Law Arbitration Rules. A review of the milestone cases under these two regimes reveals the major problems that have arisen.

Metanarratives as a Trap: Critique of Investor–State Arbitration Reform

2020 ◽  
Vol 23 (4) ◽  
pp. 949-971
Author(s):  
Ksenia Polonskaya
Keyword(s):  
International Trade ◽  
United Nations ◽  
International Investment ◽  
Investment Protection ◽  
Trade Law ◽  
International Trade Law ◽  
Procedural Approach ◽  
Investment Arbitration ◽  
The United Nations ◽  
Critical Conversation

ABSTRACT The ongoing reform of investment arbitration at the United Nations Commission on International Trade Law can have a lasting impact on international investment protection for the decades ahead. This paper examines the current discussions at the United Nations Commission on International Trade Law to explain why the current focus on reforming the procedural aspects of the system is too narrow. As a result of such a narrow approach, the reform risks to miss an opportunity to address the global challenges, e.g. climate change. In advancing its critique of the ongoing reform, the paper adopts the lens of metanarrative by Jean-François Lyotard. By relying on Lyotard, this paper cautions that such values as feasibility and efficiency in conducting the reform should not obscure the need for a critical conversation on the purpose of the reform, which is to ensure the legitimacy of investment arbitration in the future. As this paper argues, a current procedural approach to the reform cannot meaningfully contribute to this objective.

scholarly journals Proposed Regulation of Third-Party Funding in Investor-State Dispute Settlement

2021 ◽  
Vol 14 (1) ◽  
pp. 74-87
Author(s):  
Matias Tamlander
Keyword(s):  
International Trade ◽  
United Nations ◽  
Dispute Settlement ◽  
Third Party ◽  
Conflicts Of Interests ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Arbitration ◽  
Proposed Regulation ◽  
Party Funding

Third-party litigation funding is increasingly used to finance legal claims in investor-state dispute settlement, with financiers funding investor claims against sovereign states in exchange for a share of potentially substantial compensation rendered in eventual arbitral awards. A chiefly unregulated phenomenon, third-party funding has been perceived especially controversial in the context of the investment arbitration regime, a system some allege is already ingrained with inequities. Third-party funding raises numerous policy questions, such as conflicts of interests, disclosure, costs of the proceedings, and even the entire permissibility of the practice in investor-state dispute settlement. This review raises various issues and concerns related to third-party funding in investor-state dispute settlement and presents the regulatory efforts and criticism thereof with regards to the reform of rules of both the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law.

Empirical Perspectives on Investment Arbitration: What Do We Know? Does It Matter?

2020 ◽  
Vol 21 (2-3) ◽  
pp. 188-250
Author(s):  
Daniel Behn ◽  
Malcolm Langford ◽  
Laura Létourneau-Tremblay
Keyword(s):  
International Trade ◽  
United Nations ◽  
State Of The Art ◽  
Empirical Studies ◽  
Reform Process ◽  
Data Modelling ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Arbitration ◽  
Legal Cost

Abstract Due to the problem-centric nature of its mandate, empirical research has been relatively central in the United Nations Commission on International Trade Law (UNCITRAL) investment arbitration reform process. In this article, the authors seek to provide a state-of-the-art summary and assessment of empirical studies on the six identified concerns of states: legal cost, duration of proceedings, consistency, correctness, diversity and independence. The article asks: (1) What do we know? and (2) Does it matter? The survey of evidence reveals an emerging base of quantitative, qualitative and computational evidence for justifying some but not all concerns and understanding their causes. However, there are challenges in accessing all relevant data, modelling outcomes and evaluating whether there was normatively a problem. The article concludes by indicating that some concerns are clearly justified, others not, and others fall within an unknown category.

scholarly journals Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis

2020 ◽  
Vol 18 (3) ◽  
pp. 314-344 ◽  
Author(s):  
Stephan W. Schill ◽  
Geraldo Vidigal
Keyword(s):  
Dispute Settlement ◽  
Institutional Design ◽  
Design Analysis ◽  
Design Features ◽  
Settlement Systems ◽  
Trade Law ◽  
International Trade Law ◽  
International Dispute ◽  
Dispute Settlement System ◽  
A La Carte

Abstract The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as “dispute settlement à la carte”, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.

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.

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