Reform of Investment Dispute Settlement and Developments in EU Investment Law: Is There Any Future for Investment Treaty Arbitration in Europe? Some Comments in the Light of Achmea Decision

Investment Treaty ◽

Investment Law ◽

Settlement Of Disputes ◽

Bilateral Treaties ◽

This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources. The chapter then considers the pre-eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field. Next, the chapter looks at the increasing influence of comparative law and the influence of soft law instruments. It argues that the specific sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of those active in the field.

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

Leiden Journal of International Law ◽

10.1017/s0922156510000117 ◽

2010 ◽

Vol 23 (2) ◽

pp. 401-430 ◽

Cited By ~ 21

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 ◽

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

10.1093/law/9780198758082.003.0017 ◽

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 ◽

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.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

Asian Journal of International Law ◽

10.1017/s2044251316000187 ◽

2016 ◽

Vol 7 (2) ◽

pp. 287-318

Author(s):

Dilini PATHIRANA

Keyword(s):

Sri Lanka ◽

Dispute Settlement ◽

Status Quo ◽

Global Context ◽

Investment Treaty ◽

International Investment Agreements ◽

Investment Law ◽

Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

The Trade Law Consequences of “Brexit”

European Journal of Risk Regulation ◽

10.1017/s1867299x00010229 ◽

2016 ◽

Vol 7 (4) ◽

pp. 795-800 ◽

Cited By ~ 2

Author(s):

Paolo R. Vergano ◽

Tobias Dolle

Keyword(s):

Free Trade Agreements ◽

Trade Agreements ◽

Risk Regulation ◽

Trade Law ◽

Investment Treaty ◽

Investment Law ◽

General Exceptions ◽

Gatt 1994 ◽

Trade And Investment ◽

AbstractThis section highlights the interface between international trade and investment law and municipal and international risk regulation. It is meant to cover cases and other legal developments in WTO law (SPS, TBT and TRIPS Agreements and the general exceptions in both GATT 1994 and GATS), bilateral investment treaty arbitration and other free trade agreements such as NAFTA. Pertinent developments in international standardization bodies recognized by the SPS and TBT Agreement are also covered.

icsid’s Neoliberal Approach to Environmental Regulation in Developing Countries

International Community Law Review ◽

10.1163/18719732-12340018 ◽

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 ◽

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.

Control, Capacity, and Legitimacy in Investment Treaty Arbitration

AJIL Unbound ◽

10.1017/aju.2018.69 ◽

2018 ◽

Vol 112 ◽

pp. 261-265

Author(s):

Jeremy K. Sharpe

Keyword(s):

Law Reform ◽

Institutional Choice ◽

Investment Protection ◽

Investment Treaty ◽

Trade Offs ◽

Investment Law ◽

States Experience ◽

Arbitration has long been the default mechanism for resolving international investment disputes. The traditional consensus favoring arbitration, however, has now given way, and reform proposals abound. The articles by Sergio Puig and Gregory Shaffer, on institutional choice and investment law reform, and by Anthea Roberts, on incremental, systemic, and paradigmatic reform of investor-state arbitration, helpfully situate the current controversies, debates, and reform options for states. Both articles reveal just how far and fast the debate has shifted in recent years. They also confirm states’ desire to exercise greater control over the regime for resolving international investment disputes. Many states continue to struggle to fully comply with their investment treaty obligations, to efficiently defend against investor claims, and to properly keep abreast of and shape developments in international investment law. Puig and Shaffer provide a useful framework for comparatively assessing possible institutional alternatives in light of their relative trade-offs. But any reform recommendations should draw lessons from states’ experience with the existing regime, including states’ significant problems of capacity. The merits of any reform proposals, therefore, should be measured in part by their ability to improve states’ capacity to cope with the existing investment protection regime and rapidly changing developments.

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

The Law and Development Review ◽

10.1515/ldr-2018-0080 ◽

2020 ◽

Vol 13 (1) ◽

pp. 31-58

Author(s):

Rafael Tamayo-Álvarez

Keyword(s):

Dispute Settlement ◽

Legal Protection ◽

World Trade Organisation ◽

Dispute Settlement Mechanism ◽

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.

Investment Treaty Arbitration and the Development of International Investment Law as a 'Collective Value System': A Synopsis of a New Synthesis

The Journal of World Investment & Trade ◽

10.1163/221190009x00042 ◽

2009 ◽

pp. 921-935

Author(s):

Ahmad Ali GHOURI

Keyword(s):

Value System ◽

Investment Treaty ◽

System A ◽

New Synthesis ◽

Investment Law ◽

Illegal Investments in Investment Treaty Arbitration

The Law and Practice of International Courts and Tribunals ◽

10.1163/157180312x640697 ◽

2012 ◽

Vol 11 (2) ◽

pp. 281-323 ◽

Cited By ~ 5

Author(s):

Stephan W. Schill

Keyword(s):

Foreign Investor ◽

Considerable Potential ◽

Investment Treaty ◽

Investment Law ◽

The Impact ◽

The Relationship ◽

Domestic Law ◽

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.