Rebus sic stantibus as a Stabilizing Doctrine in the Climate Crisis

In the face of massive, unanticipated and even disjunctive changes, the balance of the respective interests of the state parties to existing treaties may no longer survive the changed—or changing—climate landscape. While, ideally, the co-contracting states to such treaties could mutually agree to terminate or revise their treaty obligations to accommodate such changes and redress the now imbalance of interests in the treaty, some scenarios are bound to be contentious. In such cases, is there any other procedure that can provide for an orderly and fair adjustment of treaties so as to avert a breakdown of the network of treaties and a destabilization of world order? This article proposes that the rebus sic stantibus doctrine may function as a stabilizing doctrine for maintaining and possibly adjusting treaty regimes in an orderly fashion. Unlike the doctrine of necessity or many explicit treaty carve-outs, such as the security exception of the US Model Bilateral Investment Treaty, the doctrine of rebus sic stantibus may allow for both an objective test and also one that must be pleaded before a third-party arbiter. For this reason, rebus operates within controlled limits. Rebus offers an international tribunal the opportunity to set out a fair termination or revision of a climate-impacted treaty. I trace the evolution of rebus as a stabilizing doctrine and illustrate the potentialities of its application to the climate crisis.

Bilateral Investment Treaty and Foreign Direct Investment in India

India has one of the largest Bilateral Investment Treaty (BIT) networks with other counties around the world. The BITs is to promote foreign investment by increasing investor confidence, empowering individual private parties to take international arbitral proceedings against the threat of appropriation by the government of the host country. This paper analyses the effect of BITs on FDI inflows in India using panel data for 76 countries for the time period 2000-2016 applying a dynamic panel generalised method of moments instrumental variable estimation method. The differenced GMM and system GMM estimates show a significant negative effect of bilateral investment treaties on the FDI inflows in India. While the lagged FDI has a significant positive effect, the financial openness of the source nations is reducing FDI inflows to India. The POLCON index shows that the countries with lesser political constraints have positive FDI outflow towards India. As opposed to domestic variables, the Chinn-Ito and POLCON indices have a greater share of change in FDI inflows to India. It seems that the BITs is not efficient enough to create investor confidence to invest in India.

13 Other Treatment Standards

This chapter highlights other treatment standards. In addition to the usual treaty standards of treatment discussed in previous chapters, individual investment treaties, depending on the policies of the countries concerned and the negotiation dynamics between contracting states, may impose other obligations on host states with respect to their treatment of investments and investors. Such treatment provisions do not appear in all treaties and are subject to a variety of linguistic formulations. Moreover, although they were rarely the subject of arbitration or litigation in the early years of the bilateral investment treaty (BIT) movement, investors have increasingly alleged their violation in investor–state arbitral proceedings, beginning with the second decade of the twenty-first century. These treatment standards include treatment with respect to performance requirements; entry and residence of foreign nationals and managerial personnel; compensation for losses due to war, revolution, and civil disturbance; transparency and regulatory due process; and the subrogation obligation.

Micula and Others v. Romania

1Economics, trade and finance — Investment protection — Fair and equitable treatment — Sweden–Romania Bilateral Investment Treaty, 2002 — Article 2(3) — Whether Romania breaching fair and equitable treatment protection under Treaty — Whether Romania breaching investors’ legitimate expectations — Whether Romania acting reasonably with respect to investors’ investment — Whether Romania affording investors adequate levels of transparency — Article 2(4) — Umbrella clause — Whether Romania breaching umbrella clause protection under TreatyArbitration — Jurisdiction — Investment protection — ICSID Convention, Article 25 — Distinction between objection to jurisdiction and objection to admissibility — Factual findings — Burden of proof — Jurisdiction ratione personae — Jurisdiction ratione materiae — Jurisdiction ratione temporis — Temporal application of bilateral investment treaty — Whether applicable to acts occurring before entry into force if dispute arose after entry into forceArbitration — Remedies — Standard for bringing a claim for lost profits — Sufficient certainty — Whether investors would have made profits but for the international wrong — Whether trend among investment tribunals to award compound rather than simple interest — Whether a tribunal having power to issue definitive injunctive relief — Res judicata effectArbitration — Enforceability of Award — Whether appropriate for Tribunal to base its decisions on matters of EU law applying after Award rendered — ICSID Convention, 1965, Articles 53 and 54Nationality — Individuals — Claimants renouncing nationality of respondent State and acquiring new nationality — Whether new nationality purely a matter for national law — Whether role for international law — Whether new nationality opposable to State of former nationality — Whether “genuine link” with State of new nationality required — Standing to being investment claim under bilateral investment treatyTreaties — Interpretation — Sweden–Romania Bilateral Investment Treaty, 2002 — Treaties established under European Union law to which Romania and Sweden parties — Whether conflict of treaties — Whether EU law having role in interpretation of BIT — Whether EU law applying after Award rendered relevant to Tribunal’s decision making — ICSID Convention, 1965, Articles 53 and 54

The ISDS Mechanism and Standards of Protection in the Investment Treaty

International investment activities require legal certainty for investors. While the host country also needs legal certainty related to state sovereignty, legal protection is needed for investors and the host country to realize legal certainty in investment activities. Countries in the world entered into investment agreements to provide legal protection for investment activities. In investment agreements, generally, there are requirements to comply with the national law of the host country to get protection from investment agreements. This study aims to review the implications of not fulfilling the obligations in the investment agreement to apply the benefits contained therein, specifically regarding ISDS mechanism and protection standards. This study finds that the impact of the non-fulfillment of these obligations on the ISDS mechanism depends on the admission clause specified in the Bilateral Investment Treaty (BIT). On standards of protection, it refers to general principles of international law and arbitration decisions, investments that violate these obligations do not receive international legal protection. This research suggests the Indonesian Government tighten the admission clause in the BIT to prevent investors from using the ISDS mechanism in the BIT and to specify the impact of violating obligations to comply with the national laws of the host country. KEYWORDS: International Investment Law, Standards of Protection, Bilateral Investment Treaty

The evaluation of the bilateral investment treaty (BIT) between Jordan and China (reality and ambition): تقييم المعاهدة الاستثمارية بين الأردن والصين (الواقع و الطموح)

Jordan has signed more than 54 bilateral agreements to encourage investment and due to the economic and legal importance of increasing the volume of investment between China and Jordan, we found that study because of one of these agreements most important of them the huge investment volume that Jordan witnessed, as the size of Chinese investment in the last three years reached over four billion USD s. China was became one of the largest foreign countries investing in Jordan also rapid development in trade relations on the other hand seemed important for research to contribute to enriching knowledge for those and planners in the policy- making for trade Foreign and promote trade with China as the second most powerful economy in the world also a lack of studies and research related to the theme of Jordan China trade agreement and work to enrich the research subject and study the economic and legal significance. As the bilateral relationship started with the bilateral investment treaty that took place between Jordan and China in 2001, it was extended for ten years, and work will end in year 2021. Because of the limited space that we must write cover the main points, which are highlights of the articles of the agreement and explain the essential matters related to legal and economic regulation. The parties to the dispute, the arbitration agreement, the challenges of the arbitrators, and their isolation, the representation of the parties, the "provisional attachment, " the language and procedures of the arbitration, "the issuance of the arbitration decision and its implementation.

Analysis of China-Pakistan Cross Border Trade Conflicts Resolution Mechanism

This research paper significantly discusses ‘China Pakistan bilateral investment trade regime’ and the issues relating to dispute settlement as these are considered as high risks to disturb the trade agreements made between Pakistan and China after the huge investment in recent years. Pakistan and China have strong bilateral investment treaty agreements; however, such agreements cannot provide the suitable environment for current bilateral trade and investment, hence required to be amended. In this research authors examine the China Pakistan bilateral investment legal regime and dispute resolution mechanism by way of historical and comparative legal research approaches and considered these as legal risks in the way of foreign investment and the operation difficulties it may encounter. During this study, comparative legal research is applied to find out the differences among Pakistan legal system and international laws to make foreign investment more beneficial. Furthermore, under this research authors maintain the discussion through analytical approach that dispute resolution mechanism prevailing in Pakistan may not be capable to provide required support in favor of Pakistan where international arbitration and trade disputes are still in evolution process and assessed as a barrier in the way of bilateral trade. The objectives of this research are to examine the China Pakistan cross border trade conflict resolution mechanism in depth followed by good social, economic and legal policies for Pakistan. The intention of the researchers through this research is to provide to a stronger, safer and beneficial dispute resolution mechanism towards the socio-economic progress of Pakistan through enhancing the standards of such mechanism. This research concludes that Free Trade Agreement (FTA) and Bilateral Investment Treaty (BIT) between two countries are obsolete and required many amendments on the account of current investments. To fulfill the objective of current research paper, this study suggests the creation of international commercial court in Pakistan to deal with bilateral investment disputes.