The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective

2019 ◽  
Vol 4 (1) ◽  
pp. 124-146
Author(s):  
Lorraine de Germiny ◽  
Nhu-Hoang Tran Thang ◽  
Duong Ba Trinh
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
Investment Protection ◽  
Investment Treaty ◽  
Resolution System ◽  
Definition Of ◽  
Settlement Mechanism ◽  
Dispute Resolution System ◽  
The Eu

The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remainsto be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the evipa drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The evipa may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.

The Strategic Use of International Investment Law in Colombia – Textiles: Navigating within the International Regime Complex for Development

2020 ◽  
Vol 13 (1) ◽  
pp. 31-58
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
Dispute Settlement ◽  
Legal Protection ◽  
World Trade Organisation ◽  
International Investment ◽  
Dispute Settlement Mechanism ◽  
International Investment Law ◽  
Investment Treaty ◽  
Wto Dispute Settlement ◽  
Investment Law ◽  
Settlement Mechanism

AbstractTrade-based money laundering (TBML) is a major concern in Colombia, where criminal organisations employ under-invoicing to conceal drug-trafficking proceeds. In response, Colombia imposed a compound tariff on certain Panamanian importations that were considered linked to this phenomenon. Alleging that the policy measure infringed Colombia’s tariff concessions, Panama activated the World Trade Organisation (WTO) dispute settlement mechanism. The dispute revolved around Article II:1 of the General Agreement on Tariff and Trade 1994. Colombia argued that this norm should be interpreted as to encompass licit trade only. Colombia looked for normative support in the investment treaty regime by establishing a parallel between undervalued imports and illegal investments. Therefore, just as investment treaty tribunals abstain from extending international legal protection to illegal investments, the WTO adjudicating bodies should not extend tariff concessions to importations linked to TBML activities. This article contends that by transplanting a more favourable doctrine of legality from the investment treaty regime to the multilateral trade regime, Colombia engaged in strategic regime shifting. Accordingly, drawing on regime complexes analysis, the article argues that by considering development a common issue-area, it is possible to articulate strategic connections between both regimes.

scholarly journals Notion of investment under the ICSID Arbitration: A jurisdictional dilemma between subjective and objective approaches

2017 ◽  
Vol 1 (1) ◽  
pp. 120-142
Author(s):  
Nasiruddeen Muhammad
Keyword(s):  
Dispute Settlement ◽  
Controversial Issues ◽  
Dispute Settlement Mechanism ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Definition Of ◽  
Settlement Mechanism ◽  
Exact Definition ◽  
Investment Treaty Arbitration

The notion of Investment is one of the most controversial issues trailing the dispute settlement mechanism of International Center for Settlement of Investment Dispute (ICSID). One notable issue surrounding the controversy is identifying an exact definition of investment for the purposes of ICSID Jurisdiction. While some tribunals tend to give effect to the agreement of the parties contained in their contracts or the underlying bilateral investment treaty as giving rise to the ICSID jurisdiction by consent, others tend to subject parties consent into a filtering mechanism based on a certain developed criteria. The aim of the paper is to add clarity to the corpus juris of investment treaty arbitration and provide guidance to the  investment treaty tribunals regarding the determination of notion of investment.  In doing so, the paper typifies the problem with the notable case of MHS v Malaysia. It then analyzes the two approaches from subjective and objective perspectives. The paper concludes with the proposition that ICSID notion of investment may not necessary lie with either of the two approaches. Keyywords : Investment, treaties, jurisdiction

Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator

2010 ◽  
Vol 23 (2) ◽  
pp. 401-430 ◽  
Author(s):  
STEPHAN W. SCHILL
Keyword(s):  
Dispute Settlement ◽  
International Economic Order ◽  
International Standards ◽  
Dispute Settlement Mechanism ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
The Public ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

AbstractInvestment treaty arbitration, unlike commercial arbitration, is not a purely private dispute settlement mechanism that is entirely subject to party autonomy and limited in its effects to the parties to the proceedings. Rather, it fulfils a public function in influencing the behaviour of foreign investors, states, and civil society more generally by crafting and concretizing international standards of investment protection. Investment treaty arbitration thus implements and operates as part of a public system of investment protection. Arbitrators, as a result, incur obligations not only towards the parties to the proceedings, but vis-à-vis the whole system of investment protection. These obligations can be conceptualized as part of the public law implications of investment treaty arbitration and affect, inter alia, the role and status of arbitrators in investment treaty disputes, the procedural maxims that such arbitrations should follow, and the way arbitral awards should be crafted.

Part IV Guide to Key Substantive Issues, 23 The MFN Clause and Its Evolving Boundaries

2018 ◽  
Author(s):  
Smutny Abby Cohen ◽  
Polášek Petr ◽  
Farrell Chad
Keyword(s):  
Dispute Settlement ◽  
Primary Concern ◽  
Dispute Settlement Mechanism ◽  
Investment Treaty ◽  
Trade Practice ◽  
Defined Benefits ◽  
The Right ◽  
Procedural Rights ◽  
Trade And Investment ◽  
Settlement Mechanism

This chapter discusses most-favoured-nation (MFN) clauses from early references in trade agreements to contemporary references in investor-state arbitrations. MFN clauses originated in early international trade practice and have continued to be incorporated in modern trade and investment treaties, both bilateral and multilateral. Their intended purpose is to lessen discrimination and encourage the growth of trade and foreign investment by ensuring that certain defined benefits accorded to one set of States (or their nationals, investments, goods, etc.) are extended to other States (or their nationals, investments, goods, etc.). In the investment treaty context, some commentators have observed that the right to a favourable dispute settlement mechanism is the primary concern of foreign investors, and investors often invoke MFN clauses to secure procedural rights that might otherwise be unavailable to them.

icsid’s Neoliberal Approach to Environmental Regulation in Developing Countries

2017 ◽  
Vol 19 (4-5) ◽  
pp. 401-442
Author(s):  
Antonius R. Hippolyte
Keyword(s):  
Latin American ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
Dispute Settlement Mechanism ◽  
Investment Treaty ◽  
American States ◽  
Physical Environments ◽  
Hazardous Waste Landfills ◽  
Settlement Mechanism ◽  
Investment Treaty Arbitration

Abstract With the intensification of their participation in the foreign investment regime, Latin American States are finding it difficult to implement measures beneficial to protecting their environments due to their obligations to third States. This governance deficit is further compounded by the regime’s neoliberal predisposition in favour of property protection, which has penetrated the system and implicated the system of investment treaty arbitration, the regime’s primary dispute settlement mechanism. The International Centre for Settlement of Investment Disputes (icsid) has also been implicated. This is seen in the momentous diversity in investor-State disputes resolved by various icsid tribunals, which concern attempts by Latin American States to protect their physical environments such as the protection of wildlife or other matters such as the regulation of hazardous waste landfills and ensuring that citizens have access to clean water. Tribunals have approached such disputes primarily from a commercial standpoint, ignoring non-market alternatives such as environmental considerations.

Enforcing WTO Law

2017 ◽  
Author(s):  
Antonello Tancredi
Keyword(s):  
Dispute Settlement ◽  
Legal Framework ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
Legal Nature ◽  
Dispute Settlement System ◽  
Settlement Mechanism ◽  
Wto Agreements ◽  
The Eu

This chapter provides a brief analysis of the enforcement tools foreseen in the WTO dispute settlement mechanism. It focuses in particular on some of the peculiarities which differentiate them from the EU legal system. As the analysis shows, the relevance of reciprocity and post-litigation negotiations between States influences the legal nature of the WTO dispute settlement system, which today remains to a large extent a mixed or hybrid system. This contrasts one of the mantras diffused in the legal scholarship immediately after the entry into force of the Uruguay Round Agreements. It also represents a vehicle for the potential fragmentation of the multilateral legal framework governing international trade, which contributes to undermining the idea of uniformity of the obligations arising under the WTO Agreements for all Members.

The Culture of the WTO: Why it Needs to Change

Eurostudia ◽  
2008 ◽  
Vol 3 (1) ◽  
Author(s):  
Debra P. Steger
Keyword(s):  
Decision Making ◽  
Financial Markets ◽  
Dispute Settlement ◽  
International Investment ◽  
Decision Making Process ◽  
Doha Round ◽  
Dispute Settlement Mechanism ◽  
Development Politics ◽  
Regulation Of Financial Markets ◽  
Settlement Mechanism

Abstract WTO works like any institution following a set of rules and regulations. The article traces this “culture” since its beginnings in the framework of GATT sixty years ago. Even though some of its elements like for example the Dispute settlement mechanism (DSM) are considerable achievements, the present deadlock of the Doha round reveals the need for reform. Various modifications are necessary like for example the abandon of the principle of unanimity in its decision-making process, an enlargement of its agenda from simple liberalization issues to real development politics and the regulation of financial markets and international investment.

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.

The regime of international investments within the EC-Chile Association Agreement: towards a possible renegotiation?

2013 ◽  
pp. 352-380
Author(s):  
Jacopo Tavassi
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
The European Union ◽  
Dispute Settlement Mechanism ◽  
Public Interests ◽  
International Investments ◽  
Association Agreement ◽  
Eu Member States ◽  
Settlement Mechanism ◽  
The Eu

This paper aims at analyzing the Association Agreement concluded between the European Community, today European Union, and Chile, as it is believed that it can be, given its articulated regulatory and institutional framework, a good example of how similar treaties, in the field of international investments, can combine the protection of the foreign company’s rights with the promotion and respect of the host-State’s public interests. Besides, in the light of the amendments to the content and scope of the EU Common Commercial Policy made by Treaty of Lisbon, through which the European Union acquires an exclusive competence in the field of FDI, it seems likely that in the future the issue of FDI may fully fall within the scope of the said Association Agreement, excluding, in the relations between Chile and the single EU Member States, the application of the BIT in force. This might encourage the parties to introduce a chapter on the setting up of a dispute settlement mechanism also operating in the relationships between investors and host-States. Such progress, in fact, would be fully in line with the recent practice of Free Trade Agreements concluded by Chile with third countries, which entrust the resolution of conflicts between the foreign company and the host-State to international arbitration bodies.

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