Who is the Dominant Lawmaker? Arbitratorrs Perception of Dispute Settlement Clauses as Substantive Rights in Investment Arbitration

2016 ◽  
Author(s):  
Relja Radovii
Keyword(s):  
Dispute Settlement ◽  
Investment Arbitration

The White Industries award – Shades of Grey

2012 ◽  
pp. 661-686 ◽  
Author(s):  
Manu Sanan
Keyword(s):  
Dispute Settlement ◽  
Effective Means ◽  
Transnational Law ◽  
Investment Arbitration ◽  
Global Standards

This article is a preface to India’s first engagement with investor-state dispute settlement – White Industries v. Republic of India. Notwithstanding its systemic implications at various levels, the award has left a denting comment on the functioning of the Indian judiciary – the workings of which were a principle point of challenge. The current piece attempts to trace the delicate line defining India’s investment obligations, the functioning of its courts and the extant relation between ‘denial of justice’ and ‘effective means’ as under India’s bilateral investment obligations. The article is divided into three principal sections – the first introduces India’s experience with investment arbitration and its bilateral investment agenda, the second is a contextual overview of acknowledged global standards of protection under transnational law and third discusses the White Industries arbitration - analyzing the legal contest therein and its outcome.

Excessive Costs and Recoverability of Costs Awards in Investment Arbitration

2020 ◽  
Vol 21 (2-3) ◽  
pp. 251-299
Author(s):  
Gabriel Bottini ◽  
Catharine Titi ◽  
Facundo Pérez Aznar ◽  
Julien Chaisse ◽  
Marko Jovanovic ◽  
...  
Keyword(s):  
Dispute Settlement ◽  
Third Party ◽  
Potential Contribution ◽  
Investment Arbitration ◽  
Party Funding ◽  
The Impact

Abstract In the era of the backlash against investor-State dispute settlement, the costs of proceedings have been a prime object of criticism. This article examines the problem of excessive costs and insufficient recoverability of costs awards. Firstly, it examines the issue of excessive costs in relation to both party costs (fees and expenses of counsel, experts, and witnesses) and tribunal costs (fees and expenses of arbitrators and arbitral institutions). Secondly, it discusses the impact of the length of proceedings on costs. Thirdly, it discusses the contribution of third-party funding to excessive costs. Finally, it analyses the issue of insufficient recoverability of costs awards and the availability of mechanisms to secure prompt payment of costs awards where there are insufficient resources or an unwillingness to pay. In examining each of these concerns, this article assesses the potential contribution of four different models for reform of investment arbitration.

Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

2019 ◽  
Vol 32 (4) ◽  
pp. 781-800 ◽  
Author(s):  
Joanna Lam ◽  
Güneş Ünüvar
Keyword(s):  
Free Trade ◽  
Public Interest ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Forum Shopping ◽  
New Wave ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
The Eu

AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

scholarly journals ISDS Regimes and Democratic Practice: Creating Conflict of Interests between Governments, Investors and Local Populations

2019 ◽  
Vol 25 (84) ◽  
pp. 36-52
Author(s):  
Martin Karas
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Good Governance ◽  
Scholarly Work ◽  
Foreign Investors ◽  
Local Populations ◽  
Investment Arbitration ◽  
Democratic Practice ◽  
Recent Debate ◽  
The Relationship

Abstract The recent debate over the Investor-State Dispute Settlement (ISDS) regimes of international arbitration has resulted in concerted efforts aimed mainly at protecting the rights of states to regulate, improving transparency of proceedings and eliminating inconsistency in decision making of the tribunals. While the existing scholarly work frequently addresses issues of the relationship between the existing investment regimes and good governance in general, increased attention is rarely paid to the effects that investment arbitration has on democratic practice. The article applies an “action-based” approach to democracy, in order to analyse the role that the ISDS regimes play in exacerbating conflicts between the local populations, foreign investors and governments. The analysis leads to a conclusion that the ISDS regimes create incentives for the governments and foreign investors to disregard sound democratic practice. The article represents an attempt to move the discussion about the ISDS regimes away from the question of legitimacy of the regimes to the question of the impacts that the regimes have in practice.

scholarly journals What Roles Can Constitutional Law Play in Investment Arbitration?

2014 ◽  
Vol 15 (5-6) ◽  
pp. 862-888
Author(s):  
Laurence Boisson de Chazournes ◽  
Brian McGarry
Keyword(s):  
Constitutional Law ◽  
Dispute Settlement ◽  
Case Law ◽  
Recent Case ◽  
Treaty Ratification ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Per Se ◽  
Equitable Treatment ◽  
Domestic Law

Interplays between international and domestic legal spheres have attracted increased attention in investor-State dispute settlement. From the treaty ratification process to award execution, constitutional norms play recurring roles before, during and after investment arbitrations. This contribution deals with the manner in which parties to such disputes can rely upon constitutional law or, more broadly speaking, domestic law. Notably, major hurdles to the application of domestic law in transnational fora have not necessarily constrained the arbitral profile of constitutional principles. This is because they may gain prominence through informal paths. Rather than directly applying constitutional law per se, tribunals may utilize other paths such as deferring to domestic interpretations of constitutional principles, or to constitutional procedures that appear, for example, to protect fair and equitable treatment. Reexamining recent case law through this lens of informal application, we can then envision other synergies that intermingle these regimes.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

Civil Society and International Investment Arbitration

2020 ◽  
pp. 303-327
Author(s):  
Nathalie Bernasconi ◽  
Martin Dietrich Brauch ◽  
Howard Mann
Keyword(s):  
Civil Society ◽  
Dispute Settlement ◽  
International Investment ◽  
Public Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Investment Agreements

This chapter discusses the role of civil society in international investment arbitration. Much of the civil society focus on international arbitration has been on the investor–state dispute settlement (ISDS) process included in many international investment agreements. However, the historical role of commercial arbitration as the progenitor of investment treaty arbitration and the procedural and structural links between ISDS and commercial arbitration are important for the discussions on civil society engagement. Civil society recognized early on the problems of using a commercial arbitration model for investment arbitration, which involves public law matters, and concluded that this created a misappropriation of a tool that up to that time had only been used for private commercial purposes or very well-defined state-to-state purposes. The crossing of these purposes and actors to create public law arbitration between investors and states is what created this sense of misappropriation and led to a spotlight being shone on the regime by civil society. The chapter then looks back at the beginnings of civil society engagement with international arbitration through the experience with investment treaties, including the advancement of transparency and the ability to submit amicus curiae briefs.

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