4 Keeping Interpretation in Investment Treaty Arbitration ‘on Track’: The Role of State Parties

2015 ◽  
pp. 115-149 ◽  
Keyword(s):  
Investment Treaty ◽  
Investment Treaty Arbitration

Environmental Claims by States in Investment Treaty Arbitration

2020 ◽  
Vol 5 (1) ◽  
pp. 412-425
Author(s):  
Gaurav Sharma
Keyword(s):  
International Law ◽  
Paradigm Shift ◽  
Public Discourse ◽  
Critical Role ◽  
Case Law ◽  
New Era ◽  
Investment Treaty ◽  
Local Resources ◽  
Investment Treaty Arbitration

Recent years have witnessed a number of counterclaims by State parties in investment treaty arbitrations based on environmental concerns and the need to protect local resources and safeguard the associated human rights of local communities. This article charts the development of the case law in this context, starting with the Urbaser v. Argentina award of December 2016, before examining its impact on the cases that followed in its wake, notably including the respective 2017 and 2018 awards in Burlington v. Ecuador and Aven v. Costa Rica. It concludes by considering whether these recent cases mark the beginning of a new era of international law claims which finds a parallel in the broader paradigm shift in public discourse on the critical role of all stakeholders in the conservation of the environment, and which may one day result in investors facing standalone claims as the respondent in future investment treaty claims brought by States.

Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 4 The Role of Precedent in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Paulsson Jan
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Legal Systems ◽  
Investment Protection ◽  
Investment Treaty ◽  
The Common ◽  
Technical Rules ◽  
Investment Treaty Arbitration

This chapter examines the role of precedent in investment treaty arbitration. The technical rules of precedent are practice rules developed within legal systems. A system that enforces the rule of precedent requires a supreme court authorised both to impose a rule on inferior courts and to modify it when it sees fit. However, there is nothing like it in the international realm, and even less so in the context of arbitration. Nonetheless, it is possible to imagine the development of an international ‘law on investment protection’ by something akin to the common-law process of developing authoritative rules by case-by-case accretion, though this type of precedent must be qualified by the word ‘persuasive’ rather than ‘binding’.

scholarly journals Let Us Not Forget about the Role of Domestic Courts in Settling Investor-State Disputes

2020 ◽  
Vol 18 (3) ◽  
pp. 389-415
Author(s):  
Szilárd Gáspár-Szilágyi
Keyword(s):  
Subject Matter ◽  
Working Group ◽  
Reform Process ◽  
Foreign Investors ◽  
Host State ◽  
Investment Treaty ◽  
Domestic Courts ◽  
The Relationship ◽  
Investment Treaty Arbitration

Abstract This overview illustrates that there is a gap in our knowledge of how domestic courts handle investor-State disputes. As it turns out, some foreign investors use the domestic courts of the host State prior to initiating investment treaty arbitration. Subject matter-wise, these cases are very diverse and not all of them are initiated by investors against the host State. Moreover, in the four countries analysed, investors often appealed to the highest courts of the land, but they lost more cases than they won. These findings should help UNCITRAL Working Group III conceptualize the meaning of “investor-State dispute” and the relationship between domestic and international methods of ISDS. This overview concludes by inviting further empirical research to understand how domestic courts handle investor-State disputes. This in turn can help us develop normative arguments as to why domestic courts should be included in the reform process.

The Outcomes of Investment Treaty Arbitration

2017 ◽  
Author(s):  
Remmer Karen L
Keyword(s):  
Political Institutions ◽  
Dispute Settlement ◽  
Full Range ◽  
Investment Treaty ◽  
Legal Expertise ◽  
Time Sector ◽  
The Universe ◽  
Role Of Information ◽  
Investment Treaty Arbitration

This chapter explores variations in dispute outcomes in investment treaty arbitration. Building on the literature on political institutions, the study places the theoretical importance of actor information about the rules of the game and the resources of the participants at the centre of analysis. Such information shapes the strategy of the players and their relative ability to compete successfully, establishing the basis for hypotheses about variations in dispute outcomes. Drawing on the universe of known disputes, the analysis relies on statistical models and data capable of addressing concurrently the full range of potential dispute outcomes rather than particular categories of wins and losses. States do not just win or lose treaty-based investment disputes; disputes can also be concluded by decisions to discontinue arbitral proceedings and by settlements negotiated between states and investors prior to an arbitral award. Consistent with theoretical expectation, the findings indicate that dispute outcomes vary in response to the evolution of the system of dispute settlement over time, sector of investment, and access to international legal expertise, thereby underlining the pivotal role of information flows in investment dispute settlement.

1 The Investment Treaty Regime in Context

2017 ◽  
Author(s):  
Bonnitcha Jonathan ◽  
Skovgaard Poulsen Lauge N ◽  
Waibel Michael
Keyword(s):  
Developing Countries ◽  
International Law ◽  
Global Network ◽  
Investment Treaty ◽  
Regime Complex ◽  
Wide Range ◽  
Investment Treaties ◽  
Main Components ◽  
Investment Treaty Arbitration

This chapter charts the rise of the global network of more than 3000 investment treaties and of investment treaty arbitration. Investors have used investment treaties to ask for compensation for a very wide range of government conduct. The chapter surveys the investment treaty regime and the investment regime complex. The regime consists of three main components: (i) investment treaties; (ii) the set of treaties, rules, and institutions governing investment treaty arbitration; and (iii) the decisions of arbitral tribunals applying and interpreting investment treaties. The growing role of investment treaty arbitration has made it highly controversial in both developed and developing countries, and has transformed the investment treaty regime from an obscure field of international law to a central part of the investment regime complex.

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