scholarly journals Potential Investor Claims and Possible State Defences During the Covid-19 Emergency

2021 ◽  
Vol 5 (2) ◽  
pp. 236
Author(s):  
Sefriani Sefriani ◽  
Seguito Monteiro
Keyword(s):  
Public Transportation ◽  
International Investment ◽  
Equal Treatment ◽  
National Treatment ◽  
Investment Treaty ◽  
International Solidarity ◽  
International Investment Agreements ◽  
Force Majeure ◽  
The Government ◽  
Investment Agreements

Since it was announced as a public health emergency of international concern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are numerous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of investors. This study has three purposes: investors' potential claims to challenge state measures addressed to Covid-19, the legal defences of states, and the possibility of an international investment dispute. This study shows that investors' potential claims may be delivered based on violations of the principles of fair and equal treatment, full protection and security, and national treatment and the most favoured nations. While a state can defend itself based on the principles of force majeure and state necessity, states can also defence through Non preclude measures or right to regulate clause in international investment agreements. In addition, it would also be better to build international solidarity and cooperation to mitigate and defeat the Covid-19 pandemic than sue the government before ISDS. States need collective action to avoid a surge of investor-state Arbitration. Governments’ policy to combat Covid-19 is to be considered as acting in necessity and therefore cannot be found in breach of their investment treaty obligations as long as that policy meet the necessity, proportionate, and non-discrimination requirements.

scholarly journals Constitutionality of the Colombia-France Bilateral Investment Treaty

2020 ◽  
Vol 114 (3) ◽  
pp. 471-478
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
International Investment ◽  
Constitutional Court ◽  
Investment Treaty ◽  
Adverse Impacts ◽  
International Investment Agreements ◽  
The Government ◽  
Benefits And Costs ◽  
Investment Agreements ◽  
Practical Implications

In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.

HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA BILATERAL INVESTMENT TREATY

2019 ◽  
Vol 68 (3) ◽  
pp. 761-770 ◽  
Author(s):  
Niccolò Zugliani
Keyword(s):  
Human Rights ◽  
International Investment ◽  
African Countries ◽  
Socially Responsible ◽  
Bilateral Investment Treaty ◽  
International Investment Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Fertile Ground ◽  
Investment Agreements

AbstractThe 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.

The Social Cost of International Investment Agreements: The Case of Cigarette Packaging

2018 ◽  
Vol 32 (2) ◽  
pp. 153-167 ◽  
Author(s):  
Jennifer L. Tobin
Keyword(s):  
Latin American ◽  
Multinational Firms ◽  
Well Being ◽  
International Investment ◽  
High Profile ◽  
Regulatory Changes ◽  
International Investment Agreements ◽  
The Government ◽  
National Governments ◽  
Investment Agreements

AbstractNational governments have signed and ratified over three thousand International Investment Agreements (IIAs), which for the first time give multinational firms standing to sue host governments in international arbitration tribunals. IIAs have led to a host of high-profile and controversial legal disputes that have led to claims that investor state arbitration may be impeding governments in their ability to regulate and to protect their citizens’ well-being, a phenomenon known as “regulatory chill.” To understand the normative implications of regulatory chill, I analyze investor state arbitration over tobacco in Australia and Latin America. I examine legislative discussions over possible regulatory changes in Australia and Uruguay, the two cases that have faced disputes over tobacco laws, as well as in Latin American countries that provide access to the legislative debates and had legislative initiatives that sought to strengthen tobacco legislation. These cases demonstrate that tobacco packaging laws in a number of countries have been delayed or reduced as a result of fears of potential arbitration among the government and legislators. This regulatory chill is normatively problematic as it suggests that states may be giving up more of their regulatory authority than they initially believed they would have to under IIAs.

Part II Guide to Key Preliminary and Procedural Issues, 7 The Fate of Frivolous and Unmeritorious Claims

2018 ◽  
Author(s):  
Yannaca-Small Katia ◽  
Earnest David
Keyword(s):  
Current Trend ◽  
International Investment ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Agreements

The term ‘frivolous’ is sometimes used to describe a claim which is filed with knowledge that it has little or no chance of succeeding. This chapter examines the procedures available under international investment agreements and international arbitration rules to address on a preliminary and expedited basis claims that are frivolous in the sense of being baseless and unmeritorious, regardless of claimant’s motives. The current trend towards preliminary and expedited consideration of a request that an application in investor-state arbitration be dismissed as frivolous is rooted in the 2004 US Model Bilateral Investment Treaty and the 2006 amendment to the International Centre for Settlement of Investment Dispute (ICSID) Rule 41(5). There is also an emerging focus on the summary disposition of such frivolous claims in international arbitration rules traditionally concerned with commercial arbitration.

Part II Guide to Key Preliminary and Procedural Issues, 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Kostadinova Milanka
Keyword(s):  
International Investment ◽  
Chamber Of Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Treaties ◽  
International Chamber Of Commerce ◽  
Investment Agreements ◽  
Investment Treaty Arbitration

The institution of treaty-based proceedings in a particular forum or under particular set of arbitration rules depends on the consent provisions of the underlying investment treaty. Some 767 arbitration cases have been initiated so far under the total of 3,324 bilateral investment treaties and other international investment agreements signed to date. This chapter provides an overview of the technical and fairly complex procedures for initiating proceedings and constituting tribunals in investment treaty arbitration. It examines the prevalent practices from the perspective of the International Centre for Settlement of Investment Dispute (ICSID) Convention and Rules, and other leading sets of international arbitration rules such as the United Nations Commission on International Trade Law Arbitration Rules, the Rules of Arbitration of the International Chamber of Commerce, and the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, which are among the non-ICSID Rules more commonly referenced in investment treaties.

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

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
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.

Smart Flexibility Clauses in International Investment Treaties and Sustainable Development

2014 ◽  
Vol 15 (5-6) ◽  
pp. 827-861 ◽  
Author(s):  
Anne van Aaken
Keyword(s):  
Public Policy ◽  
International Law ◽  
International Investment ◽  
Fine Tuning ◽  
Opportunistic Behavior ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Bona Fide ◽  
Policy Measures ◽  
Investment Agreements

A major challenge for investment treaty designers and adjudicators is to separate opportunistic behavior by host states that should be sanctioned under international law from bona fide public policy measures that should not. This article suggests that international investment agreements (iias) need to be both ‘smarter’ and more ‘flexible’ to better make that distinction. It draws on economic contract theory as a basic framework, and political economy theory for fine-tuning.

Investment Treaty Arbitration: Making a Place for Small Claims

2018 ◽  
pp. 667-692
Author(s):  
Kristen E. Boon
Keyword(s):  
Dispute Resolution ◽  
International Investment ◽  
Access To Justice ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Small Claims ◽  
Small Investors ◽  
Investment Agreements ◽  
Investment Treaty Arbitration

Abstract Although international investment agreements are meant to enable investors of all sizes to protect their investments, the reality is that investment treaty arbitration is designed for large claims. In light of this reality, and recognizing that small claims are often not pursued due to the costs and practical obstacles associated with arbitration, this article proposes a simplified system of dispute resolution for claims that fall under a certain amount, such as USD 10 million. Such a mechanism would provide access to justice for small investors or investors with small claims, whose needs, at present, are largely unmet.

Smoking Chills? Tobacco Regulatory Chill, Foreign Investment, and the NCD Crisis in the Post-Soviet Space: A Case Study from Ukraine

2020 ◽  
Vol 21 (5) ◽  
pp. 753-780
Author(s):  
Oleksandra Vytiaganets
Keyword(s):  
International Investment ◽  
Food Industries ◽  
Investment Treaty ◽  
Regulatory Standards ◽  
International Investment Agreements ◽  
Soviet Space ◽  
Investment Agreements ◽  
Tobacco Legislation ◽  
Post Soviet Space

Abstract This article engages with the ongoing debate on regulatory chill in the context of the international investment regime. By analyzing trends in tobacco legislation and delineating empirical findings on policymaking, it examines the hypothesis that international investment agreements affect tobacco control legislation and lead to regulatory chill in Ukraine. The article finds no direct evidence of a causal linkage between the State’s investment treaty commitments and the level of tobacco regulatory standards. Instead, it argues that the regulatory deterrence is likely to be attributed to other determinants, including strong tobacco lobby, the State’s dependency on foreign direct investment and related capital flight concerns. In addition, it observes similar dynamics in relation to the pharmaceutical and food industries.

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