Littérature scientifique sur le sujet « Investment arbitration reform »
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Articles de revues sur le sujet "Investment arbitration reform"
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De Brabandere, Eric. « Reforming Investment Law and Arbitration and the “New Economic World Order” : Between Myth and Reality ». Proceedings of the ASIL Annual Meeting 114 (2020) : 67–70. http://dx.doi.org/10.1017/amp.2021.25.
Texte intégralRésumé :
Investment law and arbitration are currently the subject of profound reform discussions. Whether the investment law and arbitration reforms and reform proposals can properly be categorized as “old tools” that are used in “new ways,” and more generally whether the reforms in the end will result in a “new economic world order” remains however to be seen. I argue that the “old tools” in international investment law and arbitration are not always simply “old tools” or an exercise in conservativism. Notably when one looks at substantive norms in investment treaties, the apparent “old tools” have been perfected and modernized. In other instances, such as the proposal for an “investment court,” which could hardly be considered an “old tool,” reform proposals do not seem to radically shift the investment regime toward a “new economic world order.”
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Choudhury, Barnali. « Democratic Implications Arising from the Intersection of Investment Arbitration and Human Rights ». Alberta Law Review 46, no 4 (1 août 2009) : 983. http://dx.doi.org/10.29173/alr213.
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In the last two decades, investors have taken advantage of investment arbitration mechanisms in investment treaties to challenge state regulations, often implicating human rights issues. This article examines the conflict between states’ human rights obligations and their obligations under investment treaties. The first part of the article examines common obligations arising under investment treaties and the investment arbitration process created by the treaties. In the second part, the author examines the way in which investment treaties and arbitrations impact human rights concerns. In particular, the author reviews a number of human rights, including the right to water, the right to health, and rights related to culture. The author also examines common provisions of investment treaties that are particularly problematic in terms of human rights issues: expropriation and fair and equitable treatment. The author analyzes the democratic deficit inherent in the creation of investment treaties and the structure of investment arbitration, concluding that investment treaties generally lack true democratic consent, and that investment arbitration lacks sufficient transparency and protection for minority rights to reflect true democratic principles. The article concludes with suggestions for reform to address the democratic deficit of investment arbitration through both the provisions of investment treaties and the structure and procedure of arbitration.
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Hodgson, Mélida N. « Reform and Adaptation : The Experience of the Americas with International Investment Law ». Journal of World Investment & ; Trade 21, no 1 (13 février 2020) : 140–66. http://dx.doi.org/10.1163/22119000-12340170.
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Abstract Over the last two decades Latin American States have been deluged with investor-State dispute settlement (ISDS) with double-digit cases, and billion-dollar damages awards. These States have sought to regain control of the narrative by embarking on various reform initiatives. This article first sets the scene with a brief review of the experience of Latin American States with investment arbitration over the last two decades, then examines the efforts undertaken in the last few years by Latin American States to gain control over their investment arbitration experience. This has been done on a bilateral, regional and supra-regional level. Reforms including the revisions of substantive provisions, as well as the development of regional arbitration fora are examined. Finally, it offers some thoughts on the prospects for the region’s reform movement.
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Dickson, Moses Oruaze. « Rebalancing international investment agreements in favour of host states ». International Journal of Law and Management 60, no 2 (12 mars 2018) : 452–69. http://dx.doi.org/10.1108/ijlma-01-2017-0007.
Texte intégralRésumé :
Purpose The purpose of this study is to examine the nature of the protection afforded to foreign investors and whether this protection has been exercised to the detriment of host states. In other words, is the regulatory authority of host states being compromised by the content of the investment agreements entered into? If so, is there scope for reform? The need to reform investor-state arbitration was recently pushed forward by the European Union Commission in the Transatlantic Trade and Investment Partnership. Design/methodology/approach It is conceptual. Findings It proposed an investment court system as a replacement for investor-state arbitration. However, there is great ambivalence on whether these reforms would result in a rebalance of investment agreements in favour of host states. Thus, this paper provides a range of solutions to the challenges posed by investor-state arbitration through proposals for a regional and world investment court. Research limitations/implications The findings made in this research will inform both academics and practitioners in the field of international law on whether the investment court proposal will bring about the desired changes. Originality/value Secondary sources
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Sharpe, Jeremy K. « Control, Capacity, and Legitimacy in Investment Treaty Arbitration ». AJIL Unbound 112 (2018) : 261–65. http://dx.doi.org/10.1017/aju.2018.69.
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Arbitration has long been the default mechanism for resolving international investment disputes. The traditional consensus favoring arbitration, however, has now given way, and reform proposals abound. The articles by Sergio Puig and Gregory Shaffer, on institutional choice and investment law reform, and by Anthea Roberts, on incremental, systemic, and paradigmatic reform of investor-state arbitration, helpfully situate the current controversies, debates, and reform options for states. Both articles reveal just how far and fast the debate has shifted in recent years. They also confirm states’ desire to exercise greater control over the regime for resolving international investment disputes. Many states continue to struggle to fully comply with their investment treaty obligations, to efficiently defend against investor claims, and to properly keep abreast of and shape developments in international investment law. Puig and Shaffer provide a useful framework for comparatively assessing possible institutional alternatives in light of their relative trade-offs. But any reform recommendations should draw lessons from states’ experience with the existing regime, including states’ significant problems of capacity. The merits of any reform proposals, therefore, should be measured in part by their ability to improve states’ capacity to cope with the existing investment protection regime and rapidly changing developments.
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Giorgetti, Chiara. « A Common Code of Conduct for Investment Arbitrators ? » Proceedings of the ASIL Annual Meeting 113 (2019) : 217–19. http://dx.doi.org/10.1017/amp.2019.179.
Texte intégralRésumé :
Investor-State Dispute Settlement (ISDS) is in the midst of an important reform process, and the call for reform includes ethics. Amongst others, criticisms related to ethics in ISDS include concerns related to the lack of diversity among arbitrators, the ensuing increasing possibility of personal, professional, and issue conflicts, the concern that actors can simultaneously wear multiple hats (so-called “double hatting”) as they can serve as counsel in one arbitration and as arbitrator or expert in another that deals with similar or connected issues, as well as, more generally, the lack of common ethical standards applicable to all participants in arbitral proceedings irrespective of their diverse legal cultures.
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Njegovan, Milica. « Izazovi reforme mehanizma rešavanja investicionih sporova ». Pravo i privreda 60, no 3 (15 août 2022) : 557–76. http://dx.doi.org/10.55836/pip_22307a.
Texte intégralRésumé :
Criticisms addressed to the mechanism for resolving disputes between foreign investors and host countries, i.e. investment arbitration, have led to various proposals and attempts to find optimal reform options. Within the framework of UNCITRAL's Working Group III, since 2017 proposols from various stakeholder have been considered. This paper analyzes the main objections to the dominant investor/state dispute settlement system, as well as the most important reform options, which appear in the literature and practice of international organizations, primarily UNCITRAL. Although this process is still ongoing, it is evident that, on the one hand, there is a plurality of different interests and proposals of the main actors of international investment law, while, on the other hand, there is a wider consensus on the necessity of certain reforms in order to establish and strengthen consistency, uniformity and predictability of arbitration decisions. Certain reforms are already being implemented in practice through new investment agreements.
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Giorgetti, Chiara. « Selecting and Removing Arbitrators in International Investment Arbitration ». Brill Research Perspectives in International Investment Law and Arbitration 2, no 4 (10 septembre 2018) : 1–93. http://dx.doi.org/10.1163/24055778-12340007.
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AbstractThis book explores and assesses two essential features in investor state dispute resolution (ISDS): the selection and the removal of arbitrators. Both topics have received increasing scrutiny and criticism, that have in turn generated calls for reforms. In its first part, this book explains the selection of arbitrators procedurally and comparatively under the most-often used arbitration rules. It then reviews critically the necessary and desirable qualities for arbitrators’ selection and appointment, and addresses some important and related policy issues, such diversity and repeat appointments. Finally, it discusses the recent calls to review the methodologies used to appoint arbitrators, and specifically the proposal by the European Commission to create a permanent tribunal to resolve international investment disputes, the UNCITRAL Working Group III Reform Process and the rules amendment proposal undertaken by the Secretariat of the International Center for Settlement of Investment Disputes (ICSID Secretariat). In its second part, the book addresses the companion and similarly important issue of challenging and removing arbitrators. It does so by reviewing first the provisions that are appplied under a variety of arbitration rules to remove arbitrators who fail to possess the necessary qualities to sit in arbitral proceedings. It then evaluates the reasons for challenge and discusses some important cases that addressed challenges. The book assesses appointments and removals in a multifaceted and comprehensive way, and includes a critical assessment of the reasons and calls for reform of the ISDS system.
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Jillani, Abid Hussain Shah, Rao Imran Habib, Muhammad Umair Razzaq et Muhammad Muneeb Raza. « Investment Dispute Settlement Mechanisms under the Recovery of CalvoismReform Practices and way forward ». Pakistan Journal of Humanities and Social Sciences 10, no 3 (30 septembre 2022) : 1082–98. http://dx.doi.org/10.52131/pjhss.2022.1003.0270.
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As the recovery of the Calvo Doctrine is becoming more and more apparent, the reform practice of the investment dispute settlement mechanism is also affected. The world's major economies have practiced different reform models according to their actual conditions, broadly categorized into the radical abandonment model represented by Latin American countries, the partial improvement model represented by the United States, and the institutional innovation model represented by the European Union. The essence of the Calvo Doctrine's "non-intervention" core corresponds to the field of investment dispute settlement, which is mainly reflected in the host country's opposition to the superior treatment of foreign investors over domestic investors, thus excluding investment disputes from being handled by international investment arbitration bodies. China, as the initiator of the "One Belt, One Road" initiative, should follow the trend of Calvo Doctrine recovery in the current reform of the investment dispute settlement mechanism, re-examine the international investment arbitration mechanism based on dialectical analysis of different reform proposals of various economies, explore and build a preventive and alternative approach based on investment dispute prevention and dispute mediation, and respond to the needs of the international community. To address the crisis of the legitimacy of the current investment arbitration under the revival of the Calvo Doctrine, we will explore the investment dispute settlement mechanism under the "One Belt, One Road" initiative from a new perspective with a distinctive Chinese solution.
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Dimitropoulos, Georgios. « The Conditions for Reform : a Typology of “Backlash” and Lessons for Reform in International Investment Law and Arbitration ». Law & ; Practice of International Courts and Tribunals 18, no 3 (7 février 2020) : 416–35. http://dx.doi.org/10.1163/15718034-12341411.
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Abstract Understanding the “backlash” it is facing is a necessary condition for a successful reform of international investment law and arbitration. The article develops a typology of backlash in international investment law and arbitration, identifying three main tensions in the field: contractualism vs. unilateralism; economic rationality vs. political rationality; flat world view vs. diverse world view. The article claims that the reform discussion, including at the UNCITRAL level, should be informed by this backlash typology. Two main lessons may be learned, one at the methodological level and one at the substantive level: first, the reform discussion needs to be informed by the study of systems of domestic investment law and policy; second, the reform discussion needs to move beyond its Investor-State Dispute Settlement (ISDS) confines and also include reform of the substantive law and administrative procedures of States and of international treaties.
Thèses sur le sujet "Investment arbitration reform"
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Cosmas, Julius. « A critical assessment of the legitimacy of the international investment arbitration system : a call for reform ». University of the Western Cape, 2014. http://hdl.handle.net/11394/4389.
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Doctor Legum - LLDCurrently most international investment disputes are settled through arbitration. The origin of this dispute settlement system can be associated with the recent proliferation of over 3000 Bilateral Investment Treaties. Through this system disputes are settled by autonomous and differently constituted tribunals which have powers to render final and binding awards. The dissatisfied party has very limited opportunity to challenge the rendered award as there are no higher bodies in the hierarchy where a dissatisfied party can lodge an appeal, save for limited procedural challenges which are allowed under the system. These differently constituted tribunals at times reach diametrically opposed decisions on similar facts and those decisions stand side by side and all are considered valid. These inconsistent decisions are leading to lack of consistency and uniformity which in turn affects the legitimacy of the system as a whole. The rules of these institutions do not allow the proceedings to be held in public despite the fact that at times these tribunals question the regulatory powers of the state and state measures on service provision to its citizens. Another issue under the current system is that due to lack of coordination, arbitrators play dual roles: as counsels and arbitrators. This practice compromises the cherished principle of the rule of law. In the effort to address these concerns, stakeholders have suggested a number of possible solutions. The suggested solutions include: invoking res judicata and lis pendens principles; adopting the doctrine of precedent; applying the ‘fork in the road’ principle; adopting the margin of appreciation standard in interpretation of BITs; creating an appellate structure at ICSID and creating a treaty to treaty appellate body. This research submits that, the suggested solutions singularly and cumulatively don not address the legitimacy issues adequately. The research therefore calls for the establishment of a Multilateral Agreement on Investment (MAI) in order to address the legitimacy issues cumulatively. It is submitted that establishing a Multilateral Investment Agreement (MAI) which provides for creating a standing international investment court with an appellate court is the only solution which addresses all the issues haunting the international investment dispute settlement system. In addition, the research suggests interim solutions which will help to increase the legitimacy of the current system pending the establishment of the MAI and the courts. The interim solutions include: establishment of the investor – state dispute adjudication Centre; effective utilisation of host state courts; mandatory publication of all awards; enhancing the effective use of member states interpretative statement; and forming a working commission to provide basic interpretation and the scope of the basic international investment law principles. These measures are only meant to improve the current system pending the establishment of the MAI and the courts. The research concludes that for the betterment of international investment law, the reform is inevitable and that the benefits would outweigh any demerits.
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Rush, Tadhg. « An Investment Court System : Perpetuating or Reforming the Legitimacy Crisis in Investor-State Arbitration ? » Thesis, Uppsala universitet, Juridiska institutionen, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-384391.
Texte intégralRésumé :
For the last two to three decades there has been an on-going legitimacy debate surrounding Investment Treaty Arbitration. States, scholars and public opinion argue that reform is needed. The European Union proposes the reform of Investor-State Arbitration through the creation of an Investment Court System. This is exemplified by recent European Union negotiated trade agreements such as the EU-Canada Comprehensive Economic Trade Agreement and the EU-Vietnam Investment Protection Agreement. This thesis discusses whether an Investment Court System is a step towards solving the legitimacy concerns or whether an Investment Court System will thrust Investor-State Arbitration into the relative unknown, exacerbating the validity questions enveloping Investor-State Arbitration. The thesis observes the criticisms raised by eminent scholars, States and campaigners against Investor-State Arbitration and the reforms proposed by the European Union Commission and European Union Parliament, in the form of an Investment Court System. Finally, the study looks briefly at how certain countries who have become disenfranchised with Investor-State Arbitration are approaching reform internationally, and comparatively discusses whether these options would be more beneficial to the Investor-State Arbitration community, rather than the European Union proposed Investment Court System.
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Laurence, Marquis. « The Role of the European Union in the Systemic Reform of Investor-State Dispute Settlement in International and Regional Trade Agreements : The impact of the ISDS Reform on the Independence and Impartiality of Arbitrators ». Doctoral thesis, Luiss Guido Carli, 2022. https://hdl.handle.net/11385/222718.
Texte intégralRésumé :
Navigating the complex frameworks of ISDS Reform. The historical framework: the backlash against investor-state dispute Settlement. The methodological and conceptual frameworks. The European legal framework for ISDS Reform. The ISDS and EU Reform frameworks on independence and impartiality of adjudicators. The impact of the ISDS and the ICS frameworks on the independence and impartiality of adjudicators. Assessing the conformity of the reforms proposals of working group III with the rule of law. Conclusion : in favor of a pro-ISDS Reform.
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Drakopoulos, David. « Appeal mechanisms and Investment Court Systems in Investor-State Dispute Settlement : An analysis of AM and ICS suggestions, in light of contemporary reform ». Thesis, Uppsala universitet, Juridiska institutionen, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-443417.
Texte intégralRésumé :
We begin with a short analysis of the history of Investor-State Dispute Settlement (ISDS). We then discuss the merits and demerits of the regime, such as the arguments between finality, speediness, and correctness. Following from this, historical reforms are discussed, and whether those issues have gotten worse or better since these discussions. The modern problems are discussed, leading to the explanation of the “legitimacy crisis”. As Appellate Mechanisms (AM) and Investment Court Systems (ICS) both propose multi layered systems, we argue whether ISDS must be a “one bite at the apple” system. We expand on the issues of regulatory chill, before showing the contradictions in the granting of awards. From this, a discussion is raised on the advantages of a tenured system of adjudicators, particularly in reference to their apparent bias. We delve deeper into the direct consequences of the perceived issues of ISDS, in the context of human rights, the environment, and other issues of sovereignty.As more reforms are suggested, the question of “what makes arbitration, arbitration?” is raised. From here, we may begin to suggest reforms based on which key factors are to be preserved. Firstly, we discuss current reform options, such as the Mauritius Convention. We take inspiration from existing AM, and prior discussions on the implementation of such a system across the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) frameworks. We analyse whether these discussions have led to change by comparing trends in drafting.Thereon, we offer suggestions of reform. ICS and how this would be implemented, what it would look like structurally, and its positive and negative effects. Using the Comprehensive Economic and Trade Agreement (CETA) and other contemporary ICS reform suggestions, we gain some knowledge of what an ICS regime could and should look like, the implementation of AM previously discussed in this regime, and other. Finally, we offer a different solution to the problems, yet less pragmatic, the termination of arbitration.
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Wiesner-Lameth, Michelle [Verfasser], Ralph Alexander [Gutachter] Lorz et Siegfried H. [Gutachter] Elsing. « Overcoming the Legitimacy Crisis in Investment Treaty Arbitration - Merit of the EU Reform Proposal vis-à-vis the Standard of Judicial Independence and Impartiality / Michelle Wiesner-Lameth ; Gutachter : Ralph Alexander Lorz, Siegfried H. Elsing ». Düsseldorf : Universitäts- und Landesbibliothek der Heinrich-Heine-Universität Düsseldorf, 2018. http://d-nb.info/1164230344/34.
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Wiesner-Lameth, Michelle [Verfasser], Ralph Alexander Gutachter] Lorz et Siegfried H. [Gutachter] [Elsing. « Overcoming the Legitimacy Crisis in Investment Treaty Arbitration - Merit of the EU Reform Proposal vis-à-vis the Standard of Judicial Independence and Impartiality / Michelle Wiesner-Lameth ; Gutachter : Ralph Alexander Lorz, Siegfried H. Elsing ». Düsseldorf : Universitäts- und Landesbibliothek der Heinrich-Heine-Universität Düsseldorf, 2018. http://nbn-resolving.de/urn:nbn:de:hbz:061-20180803-092613-4.
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Falcone, Thomas A. « Assessing Recent Proposals to Reform the Investment Treaty Arbitration System ». Thesis, 2014. http://hdl.handle.net/1828/5624.
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Economic globalization, the liberalization of markets, and the opening of once closed societies have all heralded the remarkable emergence of the current system of investment treaty arbitration. The current system, however, has attracted significant criticism and calls for reform. This thesis reviews the historical employment of arbitration in international society and the circumstances that lead to the emergence of the current system of investor-state dispute settlement. Following this, two recent proposals for reform of the current system are outlined: the creation of an international court of investment and the implementation of appellate mechanisms for investment treaty arbitration. The thesis concludes by offering an assessment of these proposals and argues for the rejection of the proposal to replace the current system with an international investment court, but offers a cautious endorsement of appellate mechanisms.Graduate
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Munzar, Tomáš. « Návrh Evropské komise ve věci reformy mechanismu řešení investičních sporů : komparativní analýza ». Master's thesis, 2016. http://www.nusl.cz/ntk/nusl-347635.
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European Commission's Reform Proposal Concerning The Investment Dispute Settlement Mechanism: Comparative Analysis In November 2015, during negotiations with the USA about the investment chapter of TTIP, the European Commission presented US delegates with a text which significantly differs from the traditional model of ISDS. Commission's reform proposal is a reaction to the current criticism directed towards the legitimacy of investment arbitration and to the demands for its thorough reform or even removal from the TTIP draft text. The Commission introduced the proposal after the public consultation opened in connection with the criticism of ISDS attracted significant public interest. This thesis aims to analyze the Commission's proposal and determine whether the Commission has introduced a sound proposal which would be capable of replacing the traditional concept of ISDS. The thesis further examines whether there are smaller or larger differences between the Commission's proposal and traditional ISDS and whether the Commission could have taken a different approach to some issues. After the first chapter dedicated to the criticism of investment arbitration and the results of the public consultation, the thesis analyses the Commission's proposal. Most attention is given to its procedural aspects,...
Livres sur le sujet "Investment arbitration reform"
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Alschner, Wolfgang. Investment Arbitration and State-Driven Reform. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.001.0001.
Texte intégralRésumé :
This book reviews the first set of investment arbitration awards rendered under a new generation of investment treaties that actively balances investment protection and host state flexibility and finds that state-driven reform is being rolled back through an arbitral backlash as new investment agreements reproduce old interpretive outcomes. Combining robust empirical and computational analysis, new comprehensive datasets on investment treaties and awards, and a range of theories from law and economics to complexity science, this book proceeds in three steps. First, it traces state-driven reforms of investment treaty design over seven decades. Second, it demonstrates that these reforms are undermined in practice as tribunals rely on most-favored-nation treatment clauses, customary international law, and precedent to interpret new treaties like old ones. Third, the book suggests how states can preserve and amplify the impact of state-driven reforms by leveraging forward-looking interpretation, data-driven renegotiation, and tax-style multilateralization to modernize old treaties in light of new ones.
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Behn, Daniel, Ole Kristian Fauchald et Malcolm Langford, dir. The Legitimacy of Investment Arbitration. Cambridge University Press, 2022. http://dx.doi.org/10.1017/9781108946636.
Texte intégralRésumé :
International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and counter-claims about the regime's legitimacy. The result is a nuanced picture about many of the critiques lodged against the regime, whether they be bias in arbitral decision-making, close relationships between law firms and arbitrators, absence of arbitral diversity, and excessive compensation. The book comes at a time when several national and international initiatives are under way to reform international investment arbitration. The authors discuss and analyse how the regime can be reformed and ow a process of legitimation might occur.
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Alschner, Wolfgang. Investment Arbitration and State-Driven Reform : New Treaties, Old Outcomes. Oxford University Press, Incorporated, 2022.
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Franck, Susan D. Arbitration Costs. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190054434.001.0001.
Texte intégralRésumé :
Investment treaty arbitration (sometimes called ISDS or investor-state dispute settlement) has become a flashpoint in the backlash against globalization, with costs becoming an area of core scrutiny. Yet “conventional wisdom” about costs is not necessarily wise. To separate fact from fiction, this book reality tests claims about investment arbitration and fiscal costs against hard data so that policy reforms can be informed by scientific evidence, rather than intuition or cognitive illusions. The exercise is critical, as investment treaties grant international arbitrators the power to order states—both rich and poor—to pay potentially millions of dollars to foreign investors when states violate the international law commitments made in the treaties. Meanwhile, the cost to access and defend the arbitration can also be in the millions of dollars. This book uses cognitive psychology insights and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties’ counsel and arbitral tribunals. It offers a nuanced analysis of how and when cost-shifting occurs, parses tribunals’ rationalization (or lack thereof) of cost assessments, and models the variables most likely to predict costs, using data to point the way toward evidence-based normative reform. With an intelligent interdisciplinary approach that speaks to ongoing reform at entities such as the World Bank’s ICSID and UNCITRAL, this book provides the most up-to-date study of investment treaty dispute resolution costs, offering new insights that will shape the direction of investment treaty and arbitration reform more broadly.
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Jeswald W, Salacuse. 15 Investment Treaty Dispute Settlement. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.003.0015.
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This chapter first considers the nature of conflicts between investors and states. Three of the most common measures that may lead to a dispute are government actions that cancel or change the contractual or licence rights of an investment; seize or cancel property rights owned by an investor; or change legislation or regulations. The chapter then examines the various means provided by treaties to resolve such conflicts. Most investment treaties provide four separate dispute settlement methods: consultations and negotiations between contracting states; arbitration between contracting states; consultations and negotiations between covered investors and host governments; and investor–state arbitration. Finally, criticisms of investor–state arbitration are considered, regarding the integrity of arbitrators, treatment exceptions, arbitral procedure, transparency of proceedings, and submissions by non-disputing parties. The chapter concludes that the dispute settlement process seems to be in a state of flux and is open to various options for reform.
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Butt, Simon, et Tim Lindsey. Foreign Investment. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199677740.003.0018.
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Successive governments have emphasized Indonesia’s need for greatly increased foreign investment but have not matched this with sufficient reform to attract large amounts of it. This chapter begins by describing the requirements for foreign investment, including establishment of PMAs, or foreign investment companies, before considering the restrictions that apply to them, such as the ‘negative list’ of sectors closed to investors, or open with restrictions. It looks at important court decisions that have made foreign investment more difficult, along with the share divestment and onshore ore processing rules that have had the same effect, particularly in the mining sector. The chapter then outlines the law relating to commercial arbitration, including the rules limiting the enforcement of foreign awards in Indonesia. The last topic covered is public-private partnerships (PPPs) and the Indonesian Investment Guarantee Fund, which guarantees payment of state liabilities to foreign investors but struggles to attract new projects.
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Hobe, Stephan, et Julian Scheu, dir. Evolution, Evaluation and Future Developments in International Investment Law. Nomos Verlagsgesellschaft mbH & Co. KG, 2021. http://dx.doi.org/10.5771/9783748923756.
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The law on the protection of foreign investments is situated at the crossroads of international law and diplomacy in the context of a globalized economy. It is therefore not surprising that investment law has undergone fundamental changes in the last decade. The exponential growth of arbitration cases has illustrated a number of complex legal and political issues that have called into question the efficiency and legitimacy of investor State dispute settlement (ISDS). Thus, even for experts in the field it is challenging to keep track with the rapid and fundamental changes of what is often described as one of the most dynamic fields of international law. Against this background, the present volume provides an ‘Evolution, Evaluation, and Future Developments in International Investment Law’. World leading academics and practitioners shed light on the most important developments such as the evolution of investment law and its relationship to general international law, the practical importance of State contracts, the role of investment protection in the age of climate change, and current reform projects under the auspices of ICSID and UNCITRAL. The volume is based on six keynote speeches held at the 10 Year Anniversary Conference of the International Investment Law Centre Cologne.
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Aloysius P, Llamzon. Corruption in International Investment Arbitration. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780198714262.001.0001.
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This text presents a study on corruption in international investment arbitration. The book considers the limited effectiveness of efforts to combat transnational corruption in international law and the emergence of international investment arbitration as a singular means for effective control of corruption within the international legal order. The case law on corruption by investment tribunals is studied exhaustively, jurisprudential trends are identified, and reforms aimed at enhancing the effectiveness and fairness of investment arbitration as a mechanism to combat corruption are proposed. The book is divided into three parts. Part I focuses on the phenomenon of corruption in foreign investment and attempts at its control through international law. Part II analyses the available case law in international investment arbitration dealing with corruption. The text identifies nine distinct trends emerging from the case law and provides a table summarizing the key areas of corruption decision-making and each relevant tribunal's approach, which is an invaluable tool for practitioners engaging in ‘live’ issues of corruption within arbitral proceedings. Part III reflects on the implications of these trends for both the ‘supply’ and ‘demand’ sides of corruption in international law, and proposes a integrative framework of decision for corruption issues in international investment arbitration.
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Schill, Stephan W. Authority, Legitimacy, and Fragmentation in the (Envisaged) Dispute Settlement Disciplines in Mega-Regionals. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198808893.003.0005.
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This chapter analyses the inter-state and investor-state dispute settlement disciplines included in mega-regionals, focusing on the Comprehensive Economic and Trade Agreement and the Trans-Pacific Partnership. It argues that dispute settlement assumes a pivotal role in trade and investment negotiations, raising fundamental questions about authority and legitimacy and concerns of fragmentation. While preferences of states participating in mega-regionals coincide in agreeing on inter-state arbitration as a compliance mechanism that minimises the authority of dispute resolvers and negative effects of fragmentation in relation to the World Trade Organization, starker differences arise on investor-state dispute settlement. Whereas the EU pushes for the creation of permanent judicial bodies, other states seemingly prefer a reformed version of investor-state arbitration. The underlying clash of ideologies shapes what may become a constitutional moment for international economic law as the debates about the reform of investment dispute settlement progress.
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St John, Taylor. Conversion. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198789918.003.0008.
Texte intégralRésumé :
This chapter analyzes the purposes that American officials ascribe to investor–state arbitration in their investment treaties, using internal documents from all pre-NAFTA American investment treaty negotiations. Officials drafting the initial US model treaty in the late 1970s saw ISDS as a narrow tool to protect investment, but a decade later, it was reimagined as a way to lock in domestic liberalization reforms in former Soviet or Latin American states. Similarly, the American investment treaty program was not intended to facilitate outward investments, but rhetoric has changed: in the early 1990s, additional investment was implied to treaty partners, before and after these years officials noted that treaties and ISDS do not necessarily lead to additional investment. Finally, while access to arbitration became a pillar of American policy, at first investor access to ICSID caused the State Department frustration and endangered US strategic interests.
Chapitres de livres sur le sujet "Investment arbitration reform"
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Bjorklund, Andrea K., Susan D. Franck, C. Ignacio SuáRez Anzorena, Jan Paulsson et Alejandro A. Escobar. « ICSID and Other Investment Arbitration Tribunals : Is There a Need for Judicial Oversight or Other Reforms ? » Dans International Institutional Reform, 274–315. The Hague : T.M.C. Asser Press, 2007. http://dx.doi.org/10.1007/978-90-6704-673-2_11.
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Alschner, Wolfgang. « Tax-Style Multilateralization ». Dans Investment Arbitration and State-Driven Reform, 269–92. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.003.0010.
Texte intégralRésumé :
This chapter explains how interpretations (Chapter 7) and renegotiations (Chapter 8) can be scaled to update outdated treaties multilaterally by modeling investment treaty reform on the international tax regime. The chapter starts with a brief background on the ongoing multilateral investor-state dispute settlement reforms at UNCITRAL and argues that the UNCITRAL mandate is flexible enough to accommodate tax-style multilateralization. The chapter then dissects the merits of the procedure-before-substance paradigm that dominates the current UNCITRAL agenda and suggests that tax-style multilateralism offers a feasible and pragmatic alternative to tackle substantive and procedural reforms concurrently. The last section sketches out what a tax-style investment law multilateralization covering both substance and procedure could look like. On the one hand, it points to the ambulatory updating of international tax treaties through tax soft law that could inspire similar ongoing and informal interpretive processes in the investment regime. On the other hand, it discusses the Multilateral Instrument, which upgraded thousands of tax treaties in substance and procedure and which could inspire similarly ambitious hard law reforms to modify old investment treaties in light of new ones.
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Alschner, Wolfgang. « Treaties as Data ». Dans Investment Arbitration and State-Driven Reform, 23–46. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.003.0002.
Texte intégralRésumé :
This chapter uses data science to empirically trace the design change of over 3,300 international investment agreements. The chapter introduces computational legal scholarship that promises to scale empirical legal research. It then applies computational legal tools to inductively study the change of investment treaties. Using the new and comprehensive Electronic Database of Investment Treaties dataset, which covers virtually all investment treaties in force, the chapter lets “treaties speak for themselves” by applying natural language processing to represent treaty texts as data. This treaty data is then investigated through principal component analysis to reveal the most important design difference that runs through the investment treaty universe. The result is a map that tracks treaty design variation over time. This map is then used to distinguish between old- and new-generation treaty design and to assess the investment arbitration case law under the latter, finding that new treaties have largely produced old outcomes.
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Alschner, Wolfgang. « Evolution as Americanization ». Dans Investment Arbitration and State-Driven Reform, 81–120. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.003.0004.
Texte intégralRésumé :
This chapter provides a narrative of how investment treaties evolved from older incomplete to recent, more complete agreements that draw heavily from North American treaty practice. The evolution of investment agreements was first marked by a decrease in contractual completeness as more comprehensive Friendship, Commerce, and Navigation treaties fell into disuse, and states started signing short bilateral investment treaties instead. Investment treaty design then evolved toward more completeness in three phases of innovation closely linked to changes in North American treaty practice: (1) in 1982, the United States launched its bilateral investment treaty program and incorporated novel obligations and flexibilities, (2) in 1992, NAFTA was concluded, which pioneered most of the content features associated with a new-generation of investment treaties, and (3) in 2004, the United States and Canada incorporated lessons learned from their experience as respondents in investor-state dispute settlement. These North American content features subsequently spread globally leading to an Americanization of investment treaty design. This only began to change in 2015, when states began exploring alternative gap-filling strategies such as greater emphasis on relational contracting (Brazil) and delegation to a standing tribunal rather than ad hoc arbitration (European Union).
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Franck, Susan D. « Introduction to Investment Treaty Arbitration (ITA) and Framing the Debate ». Dans Arbitration Costs, 1–24. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190054434.003.0001.
Texte intégralRésumé :
Chapter 1 introduces the contents of the book by framing the context of international investment more broadly, contextualizing investment-related conflict management, identifying the issues related to cost, and exploring how cognitive psychology and data-driven analysis can offer a frame for considering the relative value of normative reform. After the initial framing, Chapter 1 provides an overview of international investment, with a historic context and a matrix for understanding the current dispute resolution options to set the stage for consideration of alternatives. It then describes ITA’s doctrinal foundation to explore the debate about the costs and benefits of ITA. The final section addresses the need to appreciate the relative value of policy options to make grounded, evidence-based normative choices for investment treaty dispute resolution.
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Mohan, Mahdev, et Alexis Ang. « Singapore's Approach to ISDS Reform : ‘A Shift in Geography’ in Investment Law ? » Dans Foreign Investment and Investment Arbitration in Asia, 251–72. Intersentia, 2019. http://dx.doi.org/10.1017/9781780688404.010.
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Alschner, Wolfgang. « Introduction ». Dans Investment Arbitration and State-Driven Reform, 1–20. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.003.0001.
Texte intégralRésumé :
This introductory chapter situates the book and summarizes its main arguments. It explains that the book’s principal contribution consists of demonstrating that state-driven reform has triggered an arbitral backlash. Changes in investment treaty design have failed to change interpretive outcomes in investment arbitration as new treaties are being interpreted like old ones in practice. While “growing pains” with the regime adjusting to the new treaty design as well as misaligned incentives in investment arbitration are proximate causes for the lack of impact of treaty design innovation, the ultimate cause lies in the bifurcation of the treaty universe into new- and old-generation agreements. Old investment agreements directly (by diverting claims) and indirectly (by rooting interpretation in outdated practice) undermine innovation in new treaties. This introduction then presents the three parts of the book that, respectively, (1) trace state-driven change, (2) explain the arbitral backlash, and (3) suggest how to preserve and amplify state-driven reform.
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Alschner, Wolfgang. « Reversing Innovation through MFN ». Dans Investment Arbitration and State-Driven Reform, 123–52. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.003.0005.
Texte intégralRésumé :
This chapter investigates a first mechanism, most-favored-nation treatment (MFN), by which new treaties are read like old ones and innovation is reversed. The chapter starts by showing that MFN has been used to roll back state-driven change in recent awards. It then discusses how a series of early investor-state dispute settlement (ISDS) decisions amplified through academic commentary popularized the notion of MFN as overriding treaty design differences to a point where tribunals accepted the incorporation of more favorable substantive provisions from third treaties via MFN without further analysis. While a growing pool of commentators and tribunals has since sought to correct this practice by rebutting unwarranted presumptions and aligning the operation of MFN in ISDS with other fields of international law, the idea that MFN overrides treaty design differences in significant ways continues to be widely held. The final part of this chapter shows that an expansive view of MFN’s ability to override treaty design differences is mistaken. Even if a generous interpretation of the clause is adopted, the impact of MFN on reversing treaty design innovation is much more modest than what is generally assumed.
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Alschner, Wolfgang. « Overriding Differences through Custom ». Dans Investment Arbitration and State-Driven Reform, 153–82. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.003.0006.
Texte intégralRésumé :
This chapter discusses customary international law as a second means for rolling back innovation and overriding treaty design differences. The chapter shows that tribunals have systematically confused when states contract on custom and when they go beyond it in more complete international investment agreements. Tribunals have misread efforts to tie investment protection to a customary law baseline as a mandate to increased investment protection based on the theory of a rapidly evolving customary international law. Other tribunals have mistaken general exceptions as codifying custom and decreased the flexibility states enjoy under more complete agreements. As a result, tribunals have overridden treaty design differences and read new treaties like old ones. The remainder of the chapter traces the historical interaction between treaties and custom to better understand when states meant to contract on or go beyond custom. It shows that there is considerable evidence that states crafted their more complete treaties to use custom as a floor for granting flexibilities and a ceiling for providing certain investment protections. The chapter concludes by offering guidance on how tribunals can support state-driven treaty design choices by recognizing when states meant to contract on custom and when not.
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Alschner, Wolfgang. « Forward-Looking Interpretation ». Dans Investment Arbitration and State-Driven Reform, 219–44. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197644386.003.0008.
Texte intégralRésumé :
This chapter explores how states can use interpretation to read old treaties in light of new ones. It first argues that contract theory should structure interpretive discretion of arbitral tribunals. When it comes to interpretation, tribunals are the agents of the contracting parties. Tribunals that confront highly complete treaties should interpret these agreements formalistically, since gaps have been filled by the contracting states ex ante. When they confront incomplete treaties, tribunals should fill gaps in light of more complete treaties, which provides the best guess of how the contracting parties would have wanted gaps in their earlier treaties filled. The remainder of the chapter shows how the Vienna Convention on the Law of Treaties (VCLT) constrains and enables the gap-filling of incomplete treaties in light of more complete ones. Aside from direct subsequent interpretive interventions by the contracting states, the VCLT recognizes that third treaties can shed light on the treaty being interpreted by clarifying ordinary meaning, as a rule applicable between the same parties, or as a subsequent means of interpretation.
Actes de conférences sur le sujet "Investment arbitration reform"
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Ševčíková, Tereza. « Investment Arbitration Reform : Third-Party Funding in Investment Arbitration ». Dans COFOLA International 2022. Brno : Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0231-2022-8.
Texte intégralRésumé :
This paper analyses the issue of “third-party funding”, something widely criticised in investment arbitrations. It is an issue addressed both through UNCITRAL Working Group III and in the amendment of the ICSID Procedural Rules (the current version adopted on 21 March 2022). The author discusses the issue and why it has been seen as problematic, then focuses on proposals for solutions discussed in debates. Finally, she compares the proposals discussed in UNCITRAL Working Group III with the newly adopted amendment of the ICSID Procedural Rules.
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Tuncay, Ahmet. « Arbitration Rules in Turkish Legal System ». Dans International Conference on Eurasian Economies. Eurasian Economists Association, 2013. http://dx.doi.org/10.36880/c04.00807.
Texte intégralRésumé :
International companies, with the countries having the relations of commerce and investment, would refer to go to arbitrators, which is completely based upon their free will, to remove or minimise the risks in their own legal systems, to provide the disputes resolve fast and effective way, during the resolution of disputes. Also in our country, to provide the improvement of the international commerce and to promote investment of foreign and local corporation, according to the national and international arbitration legal regulations are made and international agreements are signed by taking notice of the international arbitration rules. Under the title of this, Turkish legal system of the arbitration rules will be researched in details.