Effecting Consistency in Investor-State Dispute Settlement Through the Introduction of Precedent in a Multilateral Investment Court

2021 ◽  
Vol 24 (4) ◽  
pp. 663-682
Author(s):  
Afolabi Adekemi
Keyword(s):  
Rule Of Law ◽  
Turning Point ◽  
Dispute Settlement ◽  
Current System ◽  
International Investment ◽  
Legal Standards ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Treaties ◽  
Investment Agreements

In recent years, the current Investor-State Dispute Settlement (ISDS) system has been a subject of reform discussions triggered by several factors, amongst which includes the lack of consistency in ISDS decisions commonly rendered by arbitration tribunals. This undesirable fact places the current ISDS system in conflict with essential rule of law values such as stability, reliability, predictability, and equality - which inevitably diminish the legitimacy of the current system. Undeniably, the un-uniform investment treaties underlying ISDS decisions is a valid justification for divergent outcomes, however, the recognition that a majority of investment treaties share similar if not identical legal standards also makes the argument for consistent ISDS decisions legitimate and in fact necessary to foster the harmonious development of investment law across the network of identical treaty standards. To this end, the use of “precedent” is critical in achieving the aforesaid goal. Notably, albeit informally, the use of precedent is already a recognised practice in ISDS, yet inconsistent decisions persist. As a turning point, this article advocates that consistency in ISDS decisions can be best achieved through the “formal introduction of a system of precedent”, in “a Multilateral Investment Court (MIC)”, which is possible without jeopardizing the inherent differences contained in International Investment Agreements (IIA).

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.

Africa and the Rethinking of International Investment Law

2018 ◽  
Author(s):  
Makane Moïse Mbengue ◽  
Stefanie Schacherer
Keyword(s):  
Sustainable Development ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Reform Process ◽  
International Investment Law ◽  
Pan African ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter seeks to present and to contextualize the Pan-African Investment Code (PAIC) by taking a comparative international law approach. Such approach allows us to assess whether the PAIC is an Africa-specific instrument and whether it is unique today in how it incorporates sustainable development concerns. This is particularly interesting for the ongoing global reform process of international investment law. The chapter is divided into five main sections. Section II provides an overview of international investment agreements concluded by African States. Section III presents the origins of the PAIC. Section IV addresses the important question as to what extent the PAIC incorporates traditional investment standards or breaks with them. Section V explores the most innovative aspects of the PAIC. Section VI examines the PAIC and dispute settlement.

MFN Standard as Substantive Treatment

2019 ◽  
Author(s):  
Mira Suleimenova
Keyword(s):  
International Law ◽  
International Investment ◽  
Third Party ◽  
International Investment Law ◽  
International Investment Agreements ◽  
History Of ◽  
Investment Law ◽  
Investment Treaties ◽  
Investment Agreements ◽  
Comprehensive Study

‘Most favoured nation’ (MFN) treatment is an integral part of virtually all modern investment regimes. MFN clauses in international investment agreements signal to investors that a given state protects them from discrimination; however, in practice, enforcing such guarantees may be challenging. This book represents a comprehensive study on how ‘most favoured nation’ treatment operates as a substantive standard of international investment law. Starting with a history of the development of the concept in international law, the author provides an overview of existing state practices in negotiating MFN clauses in bilateral and international investment treaties. Finally, the work analyses the ability of MFN treatment clauses to prevent de facto discrimination and allow for the ‘import’ of third-party substantive protections in international investor state arbitration. Dr Mira Suleimenova, LL.M. is an international investment lawyer based in Vienna, Austria.

Korea’s Experience with International Investment Agreements and Investor-State Dispute Settlement

2015 ◽  
Vol 16 (5-6) ◽  
pp. 952-980 ◽  
Author(s):  
Hi-Taek Shin ◽  
Liz (Kyo-Hwa) Chung
Keyword(s):  
Dispute Settlement ◽  
Developing Economies ◽  
International Investment ◽  
International Investment Law ◽  
International Investment Agreements ◽  
The Face ◽  
Public Scrutiny ◽  
Investment Law ◽  
Investment Agreements ◽  
Korus Fta

Korea’s network of international investment agreements (IIAs), comprising 94 BITs and nine FTAs with investment chapters, demonstrates that attracting foreign investment to Korea and protecting Korean investors overseas has been an important policy aspect. However, little attention was paid to these agreements until 2006 when negotiations for the Korea-United States (KORUS) FTA began. These negotiations sparked public criticism and heated debates of investor-State dispute settlement. Whereas Korea had routinely accepted the IIA provisions presented by developed counter-parties and used them as a template when negotiating with developing economies in the past, Korean IIA practice changed substantially following the KORUS FTA. In the face of heightened public scrutiny, Korea began to critically review key features of its IIAs and developed its own position on some important issues. This article examines these developments, considering that Korea will play a key role in shaping international investment law in the future, particularly in Asia.

The Scope of Application of EU (Model) Investment Agreements

2014 ◽  
Vol 15 (3-4) ◽  
pp. 402-421 ◽  
Author(s):  
Marc Bungenberg
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Sovereign Wealth Funds ◽  
International Investment Agreements ◽  
Scope Of Application ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

The contribution examines the personal and material scope of application of future eu International Investment Agreements. Therefore the notions of 'investor' and 'investment' are discussed. The scope of application of iias is one of the most important issues in investment law, as it determines the application of material standards as well as the possibility of investor state dispute settlement. On a comparative basis, the chapter examines the eu approach to this issue. Also the coverage of State owned Enterprises as well as Sovereign Wealth Funds is paid specific attention to. Especially the draft investment chapter of the EU-Canada Comprehensive Economic and Trade Agreement (ceta) is taken as a first orientation for possible wording and structure as well as intention of the scope of application of future eu iias.

Investors, States, and Arbitrators in the Crosshairs of International Investment Law and Environmental Protection

2020 ◽  
Vol 3 (1) ◽  
pp. 1-77
Author(s):  
Crina Baltag ◽  
Ylli Dautaj
Keyword(s):  
Rule Of Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
International Investment ◽  
International Investment Law ◽  
Global Environmental ◽  
International Investment Agreements ◽  
Environmental Component ◽  
Investment Law ◽  
Regulatory Powers

Abstract The global environmental disruption caused by human activity is firmly entrenched as a scientific fact. The present paper looks at the Investor-State Dispute Settlement (ISDS) system and inquires whether this is the most suitable transnational venue for resolving investment disputes that have an environmental component. This culminates essentially in whether arbitration is a legitimate forum and whether privately appointed arbitrators appropriately can resolve environmental-related disputes. These disputes are bound to increase in frequency because host-States are also partaking in global efforts to respond to environmental challenges. This paper makes several points. First, ISDS is the best equipped venue for addressing investment disputes that have an environmental or natural resources component. Second, the “regulatory chill” and the alleged “investor bias” arguments are unsubstantiated whereas, a balance must be struck between backlash, legitimacy, and workability. Third, ISDS will eventually and inevitably facilitate green-investors, while holding States accountable for green-undertakings, and therefore continue to effectively enforce the rule of law globally. Fourth, arbitrators must adapt to their role of handling disputes at the intersection of international investment law and environmental law; this means that a thorough thick rule of law must effectively be implemented. Fifth, International Investment Agreements (IIA s) should be reconsidered or interpreted in order to accommodate for investors’ obligations, as well as widening the scope of States’ regulatory powers. Finally, ISDS will only remain the best alternative if it sticks to its fundamental elements, in particular by utilizing the regime’s flexibility to allow counterclaims from host States. Only such reform-proposals that preserve and enhance the fundamental elements of international arbitration should be seriously considered.

Round-Tripping in International Investment Law: A Teleological Assessment

2021 ◽  
Vol 22 (3) ◽  
pp. 459-501
Author(s):  
Marc-Antoine Couet
Keyword(s):  
Dispute Settlement ◽  
Case Law ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Capital ◽  
International Investment Agreements ◽  
Investment Law ◽  
Definition Of ◽  
Comprehensive Framework ◽  
Investment Agreements

Abstract This article addresses the issue of round-tripping investment in international investment law (IIL), which is domestic capital fleeing the home country and then flowing back in the form of foreign direct investment (FDI). It provides a functional definition of this concept and identifies why it may be considered a peculiar type of FDI. It also sets out a comprehensive framework for the treatment of round-tripping investment in IIL by analyzing whether international investment agreements do protect round-tripping investors and their investments and by reviewing how investor-State dispute settlement case-law has dealt with objections put forward by respondent States to round-tripping investors bringing their investment claims to international arbitration. Lastly, this article attempts to answer the question ‘should round-tripping investment be protected under IIL?’ by verifying whether the economic and legal reasons that justify according a differentiated treatment to foreign investors also apply in the case of round-tripping investors.

Intellectual Property and International Investment Agreements

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
International Investment ◽  
Foreign Investor ◽  
National Treatment ◽  
Ip Protection ◽  
International Investment Law ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

This chapter examines selected issues on the scope of intellectual property (IP) protection under international investment law and contrasts this with the approach of the international IP system. It first reviews the extent to which IP amounts to a protected investment. The chapter then analyses the operation of national treatment and most favoured nation (MFN) in international investment agreements (IIAs) and international IP treaties. Some of the absolute standards of treatment owed by a host state to a foreign investor under most IIAs are examined in their application to IP rights. Finally, this chapter scrutinises the extent to which obligations from the international IP system can be subject to investor–state dispute settlement (ISDS).

Application of MFN to investment dispute settlement: rule of law issues

2021 ◽  
Vol 20 (1) ◽  
pp. 21-41
Author(s):  
Tanjina Sharmin ◽  
Emmanuel Laryea
Keyword(s):  
Rule Of Law ◽  
Design Methodology ◽  
Dispute Settlement ◽  
International Investment ◽  
Content Type ◽  
The Rule Of Law ◽  
The Past ◽  
International Investment Agreements ◽  
The Subject ◽  
Investment Agreements

Purpose Over the past two decades, the application of most-favoured-nation (MFN) clauses in international investment agreements (IIAs) to dispute settlement matters has generated controversy. The purpose of this paper is to help resolve some of the controversies by examining the rule of law issues that may arise from such application of MFN. Design/methodology/approach The study describes controversies regarding the application of MFN to dispute settlement as per the extant literature on the subject. It explores the elements of rule of law in investor-state arbitration. The paper then analyses the implications of applying MFN to dispute settlement matters for the elements of rule of law. Based on such analysis, the study argues that the application of MFN to dispute settlement matters undermines certain elements of rule of law. Findings The paper has outlined the relevant elements of rule of law in investor-state arbitration as access to dispute settlement; judicial (or tribunal) independence, fairness and impartiality; consistency and predictability of law and decisions; transparency; accountability and subjection of dispute forums and systems to law. It found that the application of MFN undermines various components of rule of law, in particular of consistency and predictability and the requirement of tribunals to adjudicate within the limits of the law. Originality/value The findings of this study will help future investor-state arbitral tribunals to decide on the application of MFN to dispute settlement matters.

scholarly journals The Role of Proportionality in International Investment Law and Arbitration: A System-Specific Perspective

2020 ◽  
Vol 89 (3-4) ◽  
pp. 471-491
Author(s):  
Eric De Brabandere ◽  
Paula Baldini Miranda da Cruz
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
International Investment Law ◽  
Uniform Approach ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

Abstract In this article, we examine the place of proportionality and related tests in international investment law and arbitration by looking specifically at the challenges faced by this field on applying proportionality coherently and consistently. We also assess where proportionality has been used in international investment law and arbitration. We argue that a sound appreciation of proportionality in international investment law requires taking into account the inherently imbalanced conception of international investment agreements, the incoherence of the international investment law regime, and the ad hoc dispute settlement method tasked with applying and interpreting a variety of imprecise and diverging norms. Therefore, international investment law and arbitration have not developed an institutionalised approach towards proportionality. Since investment agreements and international investment arbitration form a rather incoherent collective of cases and, as a result, have not developed a single or uniform approach towards proportionality, there is a tendency to individually approach cases.

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