The Singapore International Arbitration Centre (“SIAC”) hosted its Congress on 2 September 2020. For the first time, the Congress was held virtually. The Chairman of the Board of Directors of SIAC, Mr Davinder Singh, SC, in his welcome address thanked over 1,000 attendees for attending virtually from all over the world despite time zone differences. …
Today, there is no universal code of conduct, no single professional regulatory organization or global certification process in the field of investor-state dispute settlement (“ISDS”). Instead, the field of international arbitration is didactically governed by self-policing, episodic, and distinct ad hoc measures serving to collectively safeguard the integrity of the international arbitration process. On the…
Denial of benefits clauses (DoB) have gained considerable traction in the past prolific years of Investor-State Dispute Settlement (ISDS), and more specifically, with the growing number of Energy Charter Treaty (ECT) arbitrations. UNCTAD’s Investment Policy Hub still lists a considerably small number of international investment agreements (IIAs) providing for DoB: little above 200 which would…
The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…
The Changing Landscape of the ISDS System The ongoing global discussions on the reform of the Investor-State Dispute Settlement (ISDS) system have been broad in scope and covered a wide range of concerns. As previously documented on this blog, the governments participating in the UNCITRAL Working Group III – ISDS Reform (WG III) have determined…
On 22 March 2019, the Dutch Government released the text of the new model Netherlands BIT. Its idealism has been applauded: the new model prioritizes gender and regional diversity as well as the United Nations sustainability goals. Yet, what would the effect be of some of the model’s provisions on Foreign Direct Investment (‘FDI’)? For…
On January 24, 2020, Peru enacted the Emergency Decree No. 020-2020 (the “Decree”), published in Peru’s Official Gazette, El Peruano.1)Emergency Decree Modifying Legislative Decree Nº 1071, Legislative Decree Norming Arbitration, Emergency Decree No. 20-2020 (Jan. 24, 2020) (Peru). The Decree amends Peru’s Legislative Decree No. 1071 (the “Arbitration Law”), in force since 2008,2)Legislative Decree Regulating…
On May 1, 2020, the Secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). I had the privilege of working extensively on the drafting of the Code as a Scholar in Residence at ICSID, and I think this is an important development in…
Last month, ICSID published a further Working Paper (WP4) linked to its ongoing reform process, by which it is considering a series of amendments to the ICSID and ICSID Additional Facility Rules. The Working Paper is the fourth in a series of working papers, preceded by Working Papers 1 (August 2018), 2 (March 2019), and…
Readers of the Kluwer Arbitration Blog will be very familiar with the drama surrounding the European Union’s (EU) pushback against intra-EU investor-state dispute settlement (ISDS) as contained in intra-EU bilateral investment treaties (BITs) and in particular the “clap of thunder” Achmea (C-284/16) judgment (on this blog see, e.g. here). According to the Court of Justice…
As UNCITRAL Working Group III is proceeding to address concrete proposals to reform treaty-based investor-state arbitration, the future of investor-state dispute settlement (ISDS) is at a historic juncture. Reform proposals include both incremental changes to investor-state arbitration and proposals for further institutionalization, such as the call of the European Union (EU) to establish a Multilateral…
ISDS is a fragmented field, consisting of a few thousand bilateral investment treaties (“BITs”) and treaties with investment chapters – such as the Energy Charter Treaty (“ECT”) or the North American Free Trade Agreement (“NAFTA”). These instruments that regulate foreign investment are often similar but are not the same. Yet, even where different bilateral relationships…
Introduction In a 2015 publication Investment Policies and Bilateral Investment Treaties in Africa: Implications for Regional Integration, the United Nations Economic Commission for Africa opined that for countries in Africa: “[o]pportunities for signing BITs with non-African partners have largely been exhausted because new southern partners such as China and India prefer other modalities for…
The recently leaked treaty for the termination of intra-EU BITs can be seen as the culmination of an ongoing effort by the European Commission to discourage investment arbitration between Member States, reflecting, in the eyes of many, a tension between public international law and EU law. In spite of this, and even after the Court…
The 98th Annual Meeting of the American Branch of the International Law Association (“ABILA”), known as ABILA’s International Law Weekend (“ILW”), took place in New York City on 10 – 12 October 2019. ILW, ABILA’s premiere annual event, featured 35 panels covering a broad range of topics of international law.1)The summary of the views expressed…
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…
Introduction The United States, Mexico, and Canada renegotiated the 25-year-old North American Free Trade Agreement (NAFTA) in 2018. As a result of these renegotiations, the parties agreed on new terms to formulate “NAFTA 2.0” or the U.S.-Mexico-Canada Agreement (USMCA) in the United States, the CUSMA in Canada and, the T-MEC in Mexico. The USMCA aims…
UNCITRAL’s Working Group III on investor-state dispute settlement (ISDS) assembled in Vienna last week to consider a raft of reforms concerning investment arbitration. The fifth session in this process, governments surprised many by finalising quickly a medium-term work plan and commencing deliberations with a pragmatism that has proved often elusive. To be sure, not all…
In his post of 30 August 2019, Pablo Pérez-Salido discussed the proposal at UNCITRAL’s Working Group III for the establishment of an Advisory Centre on International Investment Law (ACIIL). This post seeks to make a case for such an Advisory Centre.1)This post is based on Karl P. Sauvant, “An Advisory Centre on International Investment Law:…
Introduction On 30 May 2019, the Agreement Establishing the African Continental Free Trade Area (“AfCFTA Agreement”) went into effect. Signed on 21 March 2018, the AfCFTA Agreement is a mega-regional trade agreement that creates a pan-African trade bloc that has the potential to unite 1.2 billion people and create a $3.4 trillion economic area. The…
The Agreement Establishing the African Continental Free Trade Area (AfCFTA Agreement) went into effect on May 30, 2019. The AfCFTA is the next step in a process set in motion in 1994 when the Treaty Establishing the African Economic Community (Abuja Treaty) entered into force. The Abuja Treaty put in place the framework for the establishment…
Introduction There are parallel initiatives currently considering a potential reform of the international Investor-State Dispute Settlement (“ISDS”) system. Particularly, the work presently taking place at the United Nations Commission on International Trade Law (“UNCITRAL”) by its Working Group III (WGIII) is one of the forums that continues to attract attention as we get closer to…
1. Complex Multi-faceted Tensions between Japan and Korea A media and geopolitical storm recently erupted after Japan introduced measures affecting exports to the Republic of Korea (Korea). Thunder sounded with Japan’s imposition of certification requirements on three chemicals needed by South Korean companies to make semiconductors, memory chips and displays for consumer electronics (the 4…
Our previous posting set out the background to the current trade tension between Korea and Japan. It outlined the possibility of Japan bringing claims under a 1965 Treaty that purported to settle claims resulting from Japan’s colonisation of Korea, or under two investment treaties, regarding Korean courts recently ordering Japanese companies to pay compensation to…
