Partial Revival of the Localisation Theory in the Field of Investment Treaty Arbitration: The Current Role of Host State Law and Host State Court

2021 ◽  
pp. 302-352
Keyword(s):  
State Court ◽  
State Law ◽  
Current Role ◽  
Host State ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

Pleas of illegality and the application of domestic law in investment treaty arbitration

2020 ◽  
Vol 9 (1) ◽  
pp. 96-116
Author(s):  
Giorgio Risso ◽  
Anna Chiara Amato
Keyword(s):  
Case Law ◽  
State Law ◽  
Host State ◽  
Investment Treaty ◽  
Alternative Approach ◽  
Domestic Law ◽  
Investment Treaty Arbitration

It is generally accepted that State Parties can rely on ‘in accordance with the host State law’ clauses (or legality clauses) with a view to curtailing arbitral tribunals' jurisdiction to disputes arising from lawful investments. Given the increasing attention dedicated to legality in modern investment treaty practice, it is likely that ‘in accordance with the host State law’ clauses will continue playing an important role in arbitration proceedings. In light of the foregoing, this article examines how arbitral tribunals interpret and apply domestic law when dealing with jurisdictional challenges based on pleas of illegality. Drawing upon the limitations to legality clauses elaborated by the case law, the authors demonstrate that tribunals tend to adopt an ‘international’ approach in interpreting and applying domestic law. The authors explain why this international approach is fundamentally flawed and suggest an alternative approach to use in future disputes.

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.

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.

Exploring the prospects of host-state counterclaims in corruption disputes

2020 ◽  
Vol 36 (4) ◽  
pp. 583-600
Author(s):  
Chitransh Vijayvergia ◽  
Pavan Belmannu
Keyword(s):  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Public Officials ◽  
Foreign Investors ◽  
The Public ◽  
Host State ◽  
Investment Treaty ◽  
Investment Treaties ◽  
Investment Treaty Arbitration

Abstract While the regime of investment treaty arbitration has evolved manifold over the decades, has the position of the host-states as a Respondent improved? The authors argue that it has not. Bilateral Investment Treaties (hereinafter BIT(s)) are still asymmetrical in nature where the states are obliged to protect the rights of the foreign investors but are not provided with any remedy against the corrupt activities of the investors. While tribunals have denied jurisdiction over the investors’ claims tainted with corruption, they have provided states with no consequent remedy against such investors. Consequently, the states have to first bear the loss of a failed investment in its territory and then pay for the exorbitant costs of international arbitration as well. Where scholars are arguing for attribution of liability of corrupt activities of the public officials to the states, the authors here raise an important question of what if the liability cannot be attributed to the states due to lack of apparent authority? Should the states be then allowed to move forward from the jurisdictional stage to raise counterclaims to seek damages for the loss caused by the investors? In this article, the authors explore these questions and present arguments in favour of the inclusion of corruption-based counterclaims.

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