Several developments in 2019 highlighted the increased presence of human rights considerations in international investment law. As described by our contributors, however, tensions persist. The 2019 Netherlands Model Agreement, released in March, represented a notably progressive approach to reflecting human rights considerations in foreign investment, as explained by our contributors. This development builds on related…
The growing public interest in investment treaties and investor-State dispute settlement has prompted an increasing number of States to open to public view aspects of investment treaty negotiations. During the negotiation of the Transatlantic Trade and Investment Partnership (‘TTIP’), for example, both the European Union and the United States sought to ‘maximise’ transparency in the…
The Vienna Convention rules for treaty interpretation (VCLT) routinely referred to by all international courts and tribunals are known to be the result of a compromise between different schools of interpretation and therefore notoriously flexible, in my view too flexible for the purposes of modern-day international dispute resolution. Cases are therefore won and lost according…
It is well settled in the practice of ICSID tribunals that the general rule of treaty interpretation embodied in Article 31(1) of the Vienna Convention on the Law of Treaties (“Vienna Convention”) applies to the interpretation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”). While…
The Vienna Convention on the Law of Treaties (VCLT) was adopted and opened for signature on May 23, 1969, and entered into force on January 27, 1980. In the fifty years since the VCLT was opened for signature, it has become universally regarded as one of the most important instruments of treaty law. It has…
On 24 October 2019, the European Commission announced that the EU Member States have reached agreement on a plurilateral treaty for the termination of all ca. 190 intra-EU bilateral investment treaties (BITs). The agreement follows the political Declarations of the Member States issued in January this year in which they explained the consequences they are…
Investor-State Dispute Settlement (ISDS) is facing significant opposition in its current form. Whilst some parties are engaged to find new common ground, others have unilaterally implemented measures aimed at ousting investor-state arbitration altogether. Over time, more and more attention has been paid to the International Centre for the Settlement of Investment Disputes (ICSID) and its…
Ever since its inception, investment arbitration has benefited from a perception of self-contained ecosystem that does not interact with any other normative subject matter. Investor-State tribunals for the most part have been reluctant to accommodate the application of non-investment obligations and treaties, claiming either lack of jurisdiction over such claims, or affirming upfront that non-investment…
The notion of Corporate Social Responsibility (CSR) is gaining momentum in international investment law. States continue to include the CSR provisions in their newest international investment agreements (IIAs). In addition to typical CSR clauses directed at states to encourage investors to incorporate the internationally recognized standards on CSR (e.g. Argentina –Japan BIT (2018); the Australia-Hong…
On March 27, 2019, Washington, D.C. hosted the 16th annual ITA-ASIL Conference discussing the impact of State parties in contract-based arbitrations. Also known as private-public and “investomercial” arbitration, this genre of arbitration has recently grown due to, among other things, privatization processes, concession agreements, as well as conditions imposed by lenders and insurance companies. Providing…
The signing of the Indonesia-Australia Comprehensive Economic Partnership Agreement (“IACEPA“) on 4 March 2019 marked an important milestone for both States (as covered in a post earlier this week). Given that both Indonesia and Australia have their reservations on investor-state dispute settlement (“ISDS“) processes, it is interesting to see that the IACEPA contains a chapter…
Last month, Australia and Indonesia signed the Indonesia-Australia Comprehensive Economic Partnership Agreement (‘IA-CEPA’), containing in Chapter 14 provisions related to the protection of foreign investments. Negotiations of an IA-CEPA were initially announced in 2010, and formally began in September 2012. The negotiations were thereafter suspended, but relaunched in March 2016. Signature and ratification of the…
The CERSA (CNRS- University Paris II Panthéon-Assas) organized its third event in a series of seminars on selected topics in international investment law and investor-state dispute settlement (ISDS) (for the report of the first seminar, see here). The seminar on Topical issues in ISDS: EU Investment Law was held in Paris on 7 February 2019…
Key developments in international arbitration in 2018 were the focus of an end-of-the-year conference held on Wednesday, 19 December 2018, organized by CIArb YMG, the young members’ group of the Chartered Institute of Arbitrators, and Young ITA, the young members’ group of the Institute for Transnational Arbitration. The event’s faculty members were Alexander G. Leventhal…
In 2013, China proposed to jointly build the “Belt and Road” Initiative. While the international investment agreements (“IIAs”) proposed to be concluded with China and its counterparties along the “Belt and Road” will provide a robust source of potential investor protections, they must be easily understood among investors, states, and international tribunals. IIAs, as the…
While the jury is still out on whether winter is coming or has already arrived regarding ISDS and investment treaties, I would rather turn to agriculture and use the metaphor of sowing the seeds and harvesting. Since July 2010, when the European Commission published its very first Communication on ISDS and investment treaties, it has…
Brazil has been notoriously reluctant to enter into treaties with other States that provide for the protection of investors and investments, viewing them as detrimental to the host State and its national investors. Brazil has no bilateral investment treaties in force, a limited number of its own treaties, named Cooperation and Facilitation Investment Agreements (CFIAs),…
Brazil has recently executed two new Cooperation and Facilitation Investment Agreements (“CFIAs”) with the Federal Democratic Republic of Ethiopia on April 11, 2018; and with the Republic of Suriname on May 2, 2018. These are, respectively, the 7th and the 8th CFIAs that Brazil has executed since 2015 (the former ones were executed with Chile,…
On 26 May 2018, the Ninth Investment Arbitration Forum took place at the Juridicum of the University of Vienna jointly organized by Prof. Irmgard Marboe of the University of Vienna, Adriana San Román and Herfried Wöss of Wöss & Partners and ICC Austria. The topic of this year’s forum was “Valuation of Damages in Changing…
In the first part of this article, we discussed the problems of balancing an investor’s intellectual property rights with the sovereign right of a State. Now, we look at how Philip Morris v Uruguay has added to the debate. In 2010 Philip Morris challenged two measures adopted by the government of Uruguay: (1) a “single…
Over the past two months, the judgment by the Court of Justice of the European Union (“CJEU”) in Slovak Republic v Achmea BV, hereinafter referred to as “Achmea”, has created much discussion among arbitration practitioners. Its reasoning and implications have already been addressed in several Kluwer Arbitration blog posts, available here, here and here. The…
In the context of the backlash against investor-state dispute settlement (“ISDS”), one of the main criticisms is the asymmetric nature of investment treaties, which impose numerous obligations on the States, but do not seem to hold corporations accountable for the social, environmental and economic consequences of their activities. Some recent developments reflect a redirection away…
The panel on Arbitration Challenged Part I: Reforming Substantive Obligations in Investment Treaties and Conditions of Access to Investment Arbitration, at ICCA Sydney 2018 Conference, was moderated by Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (Canada) and had contributions from speakers Christophe Bondy, Cooley LLP (Canada); Max Bonnell, White…
In the midst of challenges to the very legitimacy of Investor-State Dispute Settlement (ISDS), the International Centre for Settlement of Investment Disputes (ICSID) celebrated its 50th anniversary and embarked on the fourth ICSID Rules amendment process in ICSID history. The previous amendment processes brought notable additions to the ICSID Rules, such as enhanced transparency in…
