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1
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.
Повний текст джерелаАнотація:
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.”
2
Choudhury, Barnali. "Democratic Implications Arising from the Intersection of Investment Arbitration and Human Rights." Alberta Law Review 46, no. 4 (August 1, 2009): 983. http://dx.doi.org/10.29173/alr213.
Повний текст джерелаАнотація:
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.
3
Hodgson, Mélida N. "Reform and Adaptation: The Experience of the Americas with International Investment Law." Journal of World Investment & Trade 21, no. 1 (February 13, 2020): 140–66. http://dx.doi.org/10.1163/22119000-12340170.
Повний текст джерелаАнотація:
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.
4
Dickson, Moses Oruaze. "Rebalancing international investment agreements in favour of host states." International Journal of Law and Management 60, no. 2 (March 12, 2018): 452–69. http://dx.doi.org/10.1108/ijlma-01-2017-0007.
Повний текст джерелаАнотація:
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
5
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.
Повний текст джерелаАнотація:
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.
6
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.
Повний текст джерелаАнотація:
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.
7
Njegovan, Milica. "Izazovi reforme mehanizma rešavanja investicionih sporova." Pravo i privreda 60, no. 3 (August 15, 2022): 557–76. http://dx.doi.org/10.55836/pip_22307a.
Повний текст джерелаАнотація:
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.
8
Giorgetti, Chiara. "Selecting and Removing Arbitrators in International Investment Arbitration." Brill Research Perspectives in International Investment Law and Arbitration 2, no. 4 (September 10, 2018): 1–93. http://dx.doi.org/10.1163/24055778-12340007.
Повний текст джерелаАнотація:
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.
9
Jillani, Abid Hussain Shah, Rao Imran Habib, Muhammad Umair Razzaq, and 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 (September 30, 2022): 1082–98. http://dx.doi.org/10.52131/pjhss.2022.1003.0270.
Повний текст джерелаАнотація:
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.
10
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 (February 7, 2020): 416–35. http://dx.doi.org/10.1163/15718034-12341411.
Повний текст джерелаАнотація:
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.
11
Polonskaya, Ksenia. "Metanarratives as a Trap: Critique of Investor–State Arbitration Reform." Journal of International Economic Law 23, no. 4 (December 1, 2020): 949–71. http://dx.doi.org/10.1093/jiel/jgaa038.
Повний текст джерелаАнотація:
ABSTRACT The ongoing reform of investment arbitration at the United Nations Commission on International Trade Law can have a lasting impact on international investment protection for the decades ahead. This paper examines the current discussions at the United Nations Commission on International Trade Law to explain why the current focus on reforming the procedural aspects of the system is too narrow. As a result of such a narrow approach, the reform risks to miss an opportunity to address the global challenges, e.g. climate change. In advancing its critique of the ongoing reform, the paper adopts the lens of metanarrative by Jean-François Lyotard. By relying on Lyotard, this paper cautions that such values as feasibility and efficiency in conducting the reform should not obscure the need for a critical conversation on the purpose of the reform, which is to ensure the legitimacy of investment arbitration in the future. As this paper argues, a current procedural approach to the reform cannot meaningfully contribute to this objective.
12
Bihari, Erika. "International Investment Arbitration in the European Union." Acta Universitatis Sapientiae Legal Studies 10, no. 1 (August 2021): 21–34. http://dx.doi.org/10.47745/ausleg.2021.10.1.02.
Повний текст джерелаАнотація:
The author analyses the regulation of institutional arbitration under investor–state dispute settlement mechanisms, with an emphasis on such arrangements to which the European Union is a party. The functioning of the EU’s Investment Court System is presented in detail as a major reform to the status quo, along with some questions raised when qualifying this system as a means of arbitration, especially for the purposes of recognition and enforcement of decisions rendered, both in jurisdictions party to the Comprehensive Economic and Trade Agreement between Canada and the European Union and third countries. The latter problem is identified as a significant aspect of international investment arbitration.
13
Perrone, Nicolás M. "The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?" Global Jurist 15, no. 1 (January 1, 2015): 1–28. http://dx.doi.org/10.1515/gj-2014-0014.
Повний текст джерелаАнотація:
AbstractThis article makes the claim that the present efforts to reform the international investment regime (IIR) will not save this field from the existing criticisms. Given the plural values at issue, it is unlikely that states – let alone local populations – will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration became the leading mechanism to resolve investment disputes in the 1990s. This highly legalized regime, however, has been subject to criticisms from developing and increasingly from developed countries. Most reform proposals fail to go beyond alternatives that have been unsuccessful in the past, such as a multilateral investment agreement (MIA) or state-to-state arbitration. This article takes a different approach to foreign investment governance, starting from its political economy. It claims that the IIR does not depoliticize foreign investment relations but rather promotes the politics of foreign investors’ property rights protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the institutions for foreign investment governance.
14
Álvarez Zárate, José Manuel, Crina Baltag, Daniel Behn, Jonathan Bonnitcha, Anna De Luca, Holger Hestermeyer, Malcolm Langford, et al. "Duration of Investor-State Dispute Settlement Proceedings." Journal of World Investment & Trade 21, no. 2-3 (June 22, 2020): 300–335. http://dx.doi.org/10.1163/22119000-12340174.
Повний текст джерелаАнотація:
Abstract Speed is often touted as an advantage of arbitration. In recent years, however, some have worried that investment arbitration risks losing this advantage. Concerns about the length of investor-State dispute settlement (ISDS) proceedings have also been raised in the discussion about ISDS reform. This article analyses the duration of ISDS proceedings applying a data-centric approach and evaluates the impact of proposed ISDS reforms on the duration of proceedings. After some terminological clarifications on when proceedings are ‘excessively’ long, the article sets out the evidence on the length of proceedings using several data-sets. As a comparator, we present data on the length of World Trade Organization (WTO) proceedings, even though we urge caution as to the usefulness of such a comparator. The article then discusses the impact of various reform proposals on the duration of proceedings, namely improving ISDS, adding an appellate mechanism, establishing a multilateral investment court and abolishing ISDS.
15
Langford, Malcolm, Michele Potestà, Gabrielle Kaufmann-Kohler, and Daniel Behn. "Special Issue: UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions." Journal of World Investment & Trade 21, no. 2-3 (June 22, 2020): 167–87. http://dx.doi.org/10.1163/22119000-12340171.
Повний текст джерелаАнотація:
Abstract The ongoing ‘legitimacy crisis’ in investor-State dispute settlement (ISDS) has triggered a comprehensive attempt at multilateral reform. In 2017, Working Group III at the United Nations Commission on International Trade Law (UNCITRAL) was entrusted with a broad, open-ended and problem-driven mandate. The reform process aims to tackle particular concerns with ISDS: excessive costs and lengthy proceedings, inconsistent and incorrect decisions, and a lack of arbitral diversity and independence. The exclusion of substantive treaty reform has met critique but states are considering a wide range of procedural options from incremental reform to a multilateral court, appellate mechanism, and ISDS alternatives. In this article, we introduce the reform process and the seven articles that follow in this Special Issue of the Journal on World and Investment and Trade. In these contributions, ISDS Academic Forum members analyse the basis for each concern and the potential contribution of leading reform models.
16
Wilske, Stephan. "Why South Africa Should Update Its International Arbitration Legislation — An Appeal from the International Arbitration Community for Legal Reform in South Africa." Journal of International Arbitration 28, Issue 1 (February 1, 2011): 1–13. http://dx.doi.org/10.54648/joia2011001.
Повний текст джерелаАнотація:
The 2010 FIFA World Cup has stirred renewed interest in South Africa as a potential international trade and investment partner and in the country’s ability and readiness to host international arbitrations. In light of the global movement toward the modernization of arbitration laws, South Africa seems to be lagging behind other developing countries which are eagerly reaping the benefits that come with being a place of arbitration. Despite the fact that South Africa is Africa’s economic powerhouse, it is neglected as a place of arbitration. This article examines why this is so, noting in particular that South Africa’s main arbitration laws are perceived as “outdated” and “inadequate,” which discourage parties from choosing South Africa as a place of arbitration. In particular, the article shows that the South African Arbitration Act (SAAA) of 1965 gives excessive discretionary powers to local courts, allowing them to obstruct the arbitration process, and that subsequent legislation fails to give adequate effect to the New York Convention. In acknowledging recent developments that reaffirm arbitration as a means of dispute resolution in South Africa, the article concludes with a call for legal reform in this field of law beyond the efforts already made by the South African Law Commission.
17
Roberts, Anthea. "Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration." American Journal of International Law 112, no. 3 (July 2018): 410–32. http://dx.doi.org/10.1017/ajil.2018.69.
Повний текст джерелаАнотація:
InImperfect Alternatives: Institutional Choice and the Reform of Investment Law, Sergio Puig and Gregory Shaffer introduce comparative institutional analysis to evaluate alternative processes for resolving investment disputes. The impetus for this article is clear: many states view investor-state arbitration as akin to a horse that has bolted from the barn. Wishing to close the stable door, a wide range of states are considering the merits of various reform proposals. Puig and Shaffer's comprehensive and balanced framework for assessing the tradeoffs involved in making different choices is thus a welcome and timely intervention in these (often highly polarized) debates.
18
Baltag, Crina. "Investment Arbitration and Police Powers: Emerging Issues." European Investment Law and Arbitration Review Online 5, no. 1 (December 11, 2020): 392–99. http://dx.doi.org/10.1163/24689017_016.
Повний текст джерелаАнотація:
The doctrine of police powers is increasingly raised as a defence by host States in investment arbitration proceedings, in particular in the context of claims with an environmental component. The succinct analysis below highlights that while the doctrine can effectively be enforced by arbitral tribunals in determining that a measure taken by a host State and resulting in loss of property of an investor does not constitute expropriation, certain concerns with the application of this doctrine must still be addressed. The limitations to the police powers, as well as the issue of burden of proof, as recently discussed in Les Laboratoires Servier v. Poland, are few of the matters of concern. Further, the discussion is even more timely in the context of the investor-State dispute settlement reform and the discussions in the UNCITRAL Working Group III.
19
O.V., Kryvetska. "INSTITUTIONAL REFORM OF INTERNATIONAL INVESTMENT ARBITRATION: COMLIANCE WITH EU LAW." Legal Horizons 10, no. 23 (2018): 92–98. http://dx.doi.org/10.21272/legalhorizons.2018.i10.p92.
Повний текст джерела
20
Zhang, Yanwen. "The Judicial Function of Investment Tribunals: Taking Foundational Assumptions Seriously." Journal of International Economic Law 25, no. 1 (March 1, 2022): 129–47. http://dx.doi.org/10.1093/jiel/jgac009.
Повний текст джерелаАнотація:
ABSTRACT The proliferation of international courts and tribunals has given rise to debates about the judicial function beyond dispute settlement. These debates provide a broader context to study investment tribunals, especially when various conceptions of their judicial function are articulated in the ongoing reform process at United Nations Commission on International Trade Law Working Group III on investor–state dispute settlement. The current reform debate is largely driven by problems and issues that emerged in the contemporary practice of investment arbitration. However, the original balance that the founders of the system intended to strike receives much less attention. This paper focuses on the founders’ original assumptions about the judicial function of investment tribunals. It addresses the drafting process of selected key institutional features of investment arbitration established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The key claim is that the drafters’ conception of the judicial function was consciously narrow, without carrying major assumptions about public functions. This original view is in marked contrast with certain broader conceptions developed in subsequent arbitral practice. The rationales underpinning the original institutional design choices can also inform the ongoing institutional reform where similar tensions and issues re-emerge.
21
Foden, Timothy, and Odysseas G. Repousis. "Giving away home field advantage: the misguided attack on confidentiality in international commercial arbitration." Arbitration International 35, no. 4 (December 1, 2019): 401–18. http://dx.doi.org/10.1093/arbint/aiz020.
Повний текст джерелаАнотація:
Abstract An acclaimed feature of international arbitration is confidentiality. Almost universally, handbooks on international arbitration celebrate confidentiality as a characteristic of arbitration, often when contrasting arbitration with litigation or when discussing the four key selling points of arbitration, namely, speed, cost, confidentiality, and enforceability. Yet, owing to the backlash against investment treaty arbitration, critics have started to suggest that confidentiality in commercial arbitration is a bad thing. But confidentiality is of fundamental importance when it comes to commercial arbitration and the criticism levied at commercial arbitration by reference to transparency considerations in investment arbitration is misplaced. Setting out from this premise, this article first identifies those reasons or perceived shortcomings of confidentiality that according to critics justify a presumption in favour of transparency and publication. Secondly, this article shows that for the most part, the ongoing vilification of confidentiality is the outcome of a worrying trend that risks sacrificing the interests of clients on the altar of a ‘one size fits all’ approach to transparency. This is a false premise and a reminder that attempts to ‘reform’ can have the opposite effect, especially when reformists overlook the needs of the users and the specificities of commercial arbitration.
22
Bjorklund, Andrea K., Daniel Behn, Susan D. Franck, Chiara Giorgetti, Won Kidane, Arnaud de Nanteuil, and Emilia Onyema. "The Diversity Deficit in International Investment Arbitration." Journal of World Investment & Trade 21, no. 2-3 (June 22, 2020): 410–40. http://dx.doi.org/10.1163/22119000-12340177.
Повний текст джерелаАнотація:
Abstract The United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS (Investor-State Dispute Settlement) Reform considers issues of adjudicator diversity to be an area of concern for the legitimacy of the ISDS system. Studies show that nearly all of the most prominent and repeatedly appointed arbitrators in ISDS cases are men from the Global North with significant prior experience in ISDS cases. Rather than being seen as fair, just, and devoid of bias, decisions are sometimes suspected to be the products of adjudicators who share a particular world view. This article focuses on four key issues: (1) how a lack diversity affects the real and perceived legitimacy of the ISDS system; (2) empirical evidence on the current extent of the diversity problem in ISDS; (3) the causes of the perpetuation of the diversity deficit in ISDS; and (4) what can be done to improve diversity in ISDS.
23
Born, Gary. "The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?" Journal of International Arbitration 38, Issue 4 (July 1, 2021): 417–56. http://dx.doi.org/10.54648/joia2021022.
Повний текст джерелаАнотація:
In 1933, the National Socialist government of the German Reich issued a collection of directives regarding the use of arbitration to resolve disputes, focused specifically on disputes between the Reich and private parties. The 1933 Directives made a number of general criticisms of the arbitral process as a means of adjudication, and relied upon these criticisms to significantly restrict the use of arbitration to resolve disputes with German state entities. The Reich Directives provide a neglected, but instructive, historical perspective on arbitration law and practice in Germany, both in the 1930s and before. At the same time, parts of the 1933 Directives also have unmistakable parallels to current debates about investor-state and commercial arbitration. Among other things, the Directives contain recommendations regarding the drafting of arbitration agreements and the conduct of arbitral proceedings which, while in some areas out-dated, could in other respects be mistaken for current discussions regarding best practices in international commercial and investment arbitration. More importantly, the Directives’ criticisms of the arbitral process, and the National Socialists’ rationales for those criticisms, have striking analogues to aspects of contemporary debates about investment arbitration and proposals to abandon or restrict investment arbitration. Those parallels raise important, if uncomfortable, questions about these contemporary critiques and proposals for reform. investor-state, arbitration, ISDS, criticism, Achmea, directives, Germany, National Socialism, history
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Chaisse, Julien, and Xueliang Ji. "Stress Test for EU’s Investment Court System: How Will Investments Be Protected in the Comprehensive Agreement on Investment?" Legal Issues of Economic Integration 49, Issue 1 (January 1, 2022): 101–24. http://dx.doi.org/10.54648/leie2022005.
Повний текст джерелаАнотація:
On 30 December 2020, the European Union (EU) and China agreed in principle to a revamped investment treaty: The Comprehensive Agreement on Investment (CAI). Notably, the EU and China have not decided which investment dispute resolution system will be included under the new agreement. Instead, the EU and China are continuing negotiations on this contentious topic. This article discusses the key features of the proposed investment court system in the context of the CAI negotiations to assess whether China could agree on such a paradigmatic change that would have systemic consequences. The article explains the objective reasons behind China’s partial support for the proposed reforms to the existing investor-state arbitration system. For example, China has supported adding an appellate body without accepting the EU’s full-fledged investment court proposal. Finally, the article identifies the points of convergence and divergence which will shape the CAI negotiations and pave the way to global investor-state dispute settlement (ISDS) reform. comprehensive agreement on investment (CAI), investor-state dispute settlement (ISDS), investment court system (ICS), United Nations Commission on International Trade Law (UNCITRAL Working Group III), Comprehensive Economic and Trade Agreement (CETA), EUVietnam Free Trade Agreement (EVFTA), State-to-state dispute resolution, Achmea case, financial responsibility regulation, European Commission
25
Marcoux, Jean-Michel. "Transnational Public Policy as an International Practice in Investment Arbitration." Journal of International Dispute Settlement 10, no. 3 (July 18, 2019): 496–515. http://dx.doi.org/10.1093/jnlids/idz013.
Повний текст джерелаАнотація:
Abstract International investment arbitration tribunals have used the doctrine of transnational public policy to prevent claimants whose investments are tainted with illegality from obtaining redress. Whereas tribunals generally have the authority to apply transnational public policy when deciding a claim, they have often assumed rather than demonstrated the obligation for foreign investors to comply with the doctrine. This article proposes an interdisciplinary account that draws upon ‘international practices’ in International Relations theory to understand the normative pull toward this obligation. It does so by shedding light on tribunals’ general lack of consideration for a proper legal basis to impose an obligation on foreign investors to comply with transnational public policy. It then suggests that the normativity of the doctrine primarily rests on a practice that is reproduced and reinforced by tribunals themselves. Understanding transnational public policy as an international practice ultimately illustrates the role of tribunals to reform international investment law.
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Cameron, Peter D. "International Arbitration and Energy Disputes." Global Energy Law and Sustainability 3, no. 1 (February 2022): 1–17. http://dx.doi.org/10.3366/gels.2022.0065.
Повний текст джерелаАнотація:
Arbitration is currently central to the fabric of settling international energy disputes, whether in its commercial or its investment modes. When arbitration is applied to energy disputes, it needs to consider the presence of certain distinct features that can influence the arbitration process. This article identifies and examines eight such features, such as its complexity, scale, duration of projects, their cross-border character, market volatility, strategic concerns, asymmetry, and the pervasive roles of the state. It notes the various efforts at reform of energy arbitration, but argues that such features are likely to strongly influence any regime that evolves from the present one.
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Dagbanja, Dominic Npoanlari. "The Public Interest Safeguards in Arbitration in Ghana." African Journal of International and Comparative Law 28, no. 4 (November 2020): 677–96. http://dx.doi.org/10.3366/ajicl.2020.0345.
Повний текст джерелаАнотація:
Investor-state dispute settlement (ISDS) claims mostly challenge public interest regulatory measures. This has led to efforts to reform international investment agreements (IIAs), with some states terminating them. Orthodox capital protection-centred scholarship maintains support for IIAs, claiming they are necessary to attract investment for development. Policy space-centred critical scholarship rejects or is critical of IIAs saying their limitations on regulatory autonomy are unjustifiable because private capital alone cannot lead to development. An assessment of public interest safeguards in public-private arbitration in national constitutions and statutes is missing in this scholarship. Accordingly, I analyse the constitutional foundations of public-private arbitration in Ghana and show that in conformity with the constitutional role of public institutions, arbitration legislation safeguards the public interest. Therefore for Ghana and similarly placed African states to retain their right to regulate, arbitral tribunals must respect and uphold the protections accorded the public interest constitutionally and in arbitration legislation.
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Marceddu, Maria Laura, and Pietro Ortolani. "What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments." European Journal of International Law 31, no. 2 (September 2020): 405–28. http://dx.doi.org/10.1093/ejil/chaa029.
Повний текст джерелаАнотація:
Abstract Investment arbitration has attracted growing criticism both in academia and in the general political debate. The system has been criticized by groups and stakeholders with very different agendas – from academics to anti-globalization activists, from alt-right groups to policy-makers. While sharing a common aversion to such dispute resolution mechanism, these groups do not generally take the same viewpoints, and the same type of criticism could originate from different political and theoretical underpinnings. The current efforts to reform investor-state dispute settlement, undertaken both by the European Union and by the United Nations Commission on International Trade Law, constitute to a large extent an attempt to respond to the aforementioned public criticism. However, in spite of the growing importance of the topic in the public debate, reform discussions have been predominantly, if not exclusively, focused on states and their roles in, and their expectations towards, investment arbitration. Public opinion, conversely, remains largely overlooked. To fill this gap, this research devises an experimental approach to understand the roots of public criticism(s) against investment arbitration. In so doing, it aims to generate a constructive, timely and accessible empirical analysis of the theoretical underpinnings of ISDS criticisms, providing an integrated guide to one of the most heated debates in international economic law today. The main purpose is to understand which are the points of friction (real or perceived) that trigger public criticism against investment arbitration and, in the light of this information, whether this dispute resolution mechanism should be maintained in its current form, partially reformed or rejected entirely. To this end, the article presents the results of the first-ever set of behavioural experiments concerning ISDS and public opinion.
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Rais, Samy, and Kabir Duggal. "The Evolution of Brazilian CFIAs from 2015 to 2020: Like Wine, Does It Get Better with Time?" Journal of International Arbitration 38, Issue 2 (April 1, 2021): 215–52. http://dx.doi.org/10.54648/joia2021012.
Повний текст джерелаАнотація:
This article undertakes an in-depth analysis of the evolution of Brazil’s Cooperation and Facilitation Investment Agreements (CFIAs) since the publication of the Brazilian Model CFIA in 2015. It studies the tumultuous history of investment treaties in Brazil and how it may have shaped Brazil’s response to the investor-State arbitration regime through the current model CFIA. It assesses how the reception of Brazil’s Model CFIA among Brazilian stakeholders and commentators may have influenced the trends and evolutions of the fourteen CFIAs signed by Brazil from 2015 to 2020. It argues that the Brazilian CFIAs have improved with time through the progressive narrowing and strengthening of their jurisdictional, substantial, public policy and dispute resolution clauses. At the same time, they may not have fully implemented the criticisms and comments of academia and Brazilian civil society, and some provisions remain to be clarified in the future. Bilateral Investment Agreement, Brazil, Model BIT, Cooperation and Facilitation Investment Agreements, Investment arbitration reform
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Bellak, Christian, and Markus Leibrecht. "Do Economic Crises Trigger Treaty–Based Investor–State Arbitration Disputes?" Journal of International Economic Law 24, no. 1 (February 26, 2021): 127–55. http://dx.doi.org/10.1093/jiel/jgab002.
Повний текст джерелаАнотація:
ABSTRACT The number of investor–state arbitration disputes has increased to more than 1000 to date, but their determinants are still not fully understood. We argue that in the wake of severe macroeconomic turmoil—economic crisis—policymakers have strong incentives to implement regulatory changes, even if these allegedly breach protection standards are provided by International Investment Agreements (IIAs). We base our empirical analysis on a unique country-dyadic dataset containing 961 investor–state arbitration claims over the 1987–2017 period. Our findings support the results of the related literature, which stresses the importance of good governance for avoiding arbitration cases. In contrast to this literature, we provide robust evidence consistent with a positive statistical association of economic crises and the number of investor–state arbitration disputes. Our investigation suggests that governments risk paying compensation to foreign investors for their actions in times when public regulation is needed in other areas. This may warrant a reconsideration of economic emergency measures of governments and the national security clause in International Investment Agreements in the current reform debate.
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de Germiny, Lorraine, Nhu-Hoang Tran Thang, and Duong Ba Trinh. "The EU-Vietnam Investment Protection Agreement Investor-State Dispute Settlement Mechanism in Perspective." European Investment Law and Arbitration Review Online 4, no. 1 (December 16, 2019): 124–46. http://dx.doi.org/10.1163/24689017_00401006.
Повний текст джерелаАнотація:
The EU-Vietnam Investment Protection Agreement (EVIPA) represented the culmination of three years of negotiations between the EU and Vietnam. Although it remainsto be ratified, it promises to have an impact on the international investment treaty landscape. The treaty contains innovations ranging from its definition of the substantive protections afforded to foreign investors to its definition of ‘investments’ and ‘investors’ that may qualify for those protections, as well as the procedural modalities for the treatment of possible disputes. Its most distinctive trait, however, is its establishment of a semi-permanent adjudicatory body akin to an investment court in replacement of the arbitration model envisaged by the vast majority of investment treaties over the past several decades. Rather than attempt to reform, the evipa drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged method to select, appoint, and remunerate the members of that body – both at the first instance level and at the appellate level – represents an abrupt and profound abandonment of the traditional arbitration model so frequently and presently used in international disputes around the world. The evipa may thus present an opportunity to test an alternative dispute resolution system and thus to aid in determining the most effective and appropriate method to resolve the international investor-State disputes of the future.
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Tucker, Andrew E. L. "The Energy Charter Treaty and ‘Compulsory’ International State/Investor Arbitration." Leiden Journal of International Law 11, no. 3 (September 1998): 513–26. http://dx.doi.org/10.1017/s0922156598000375.
Повний текст джерелаАнотація:
The Energy Charter Treaty came into force on 16 April 1998. The Treaty contains far-reaching provisions on trade and investment liberalisation within the energy sectors of 49 signatory states. The Treaty arguably offers a basis for multilateral agreement on micro-economic reform of the energy sectors. Some of the most significant initiatives contained in the treaty are the provisions for resolution of disputes. This article examines in detail the provisions dealing with arbitration of disputes between investors and states. These mechanisms build on models developed in other recent multilateral investment treaties. The limitations and potential offered by these provisions are discussed and some conclusions drawn.
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Dias Simões, Fernando. "Investment Arbitration and the Chimera of an Ideal Adjudicative Community." Journal of World Investment & Trade 22, no. 5-6 (December 10, 2021): 687–704. http://dx.doi.org/10.1163/22119000-12340225.
Повний текст джерелаАнотація:
Abstract Investment arbitrators – the men and women who adjudicate investor-State disputes – have become an object of study in their own right. Some stakeholders believe that investment arbitration’s institutional design creates perverse economic incentives, leading arbitrators to adopt strategic behaviours and biasing their decision-making processes. The United Nations Commission on International Trade Law is currently considering different models for reshaping the way adjudicators are selected and appointed. The rationale behind this reform seems to be to recruit a brand-new troupe, replete with new faces. But, more worryingly, there seems to be an obsession with the professional profile of adjudicators: prior experience in the field is increasingly perceived as a handicap, and repeat players are to be avoided like the plague. This article examines the evolution of the college of investment arbitrators and enquires about its potential future as a professional community.
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Herranz-Surrallés, Anna. "‘Authority Shifts’ in Global Governance: Intersecting Politicizations and the Reform of Investor–State Arbitration." Politics and Governance 8, no. 1 (March 31, 2020): 336–47. http://dx.doi.org/10.17645/pag.v8i1.2651.
Повний текст джерелаАнотація:
<p>The global investment regime is a prime example of the so-called ‘politicization beyond the state.’ Investment agreements with an Investor–State Dispute Settlement (ISDS) mechanism have become contested in several corners of the globe, triggering a widespread reform process encompassing national, regional and multilateral levels. This article examines the consequences of this confluence of politicization processes, focusing on the European Union (EU) and two key venues of ISDS reform: the United Nations Commission on International Trade Law (UNCITRAL) and the Energy Charter Treaty (ECT). Combining different strands of politicization literature in International Relations and Political Science, the article advances a nuanced conceptualisation of the institutional consequences of politicization that goes beyond a deepening/decline dichotomy. Instead, the article examines whether and how politicization generates ‘authority shifts,’ either through a vertical move between international and national levels; and/or through a horizontal recalibration between public and private forms of governance. The article argues that although the EU’s initiative for global ISDS reform intended to rebalance public and private authority while strengthening its international character, the on-going reform processes at the UNCITRAL and the ECT may eventually lead to a (partial) dismantling of international authority.</p>
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Titi, Catharine. "Who's Afraid of Reform? Beware the Risk of Fragmentation." AJIL Unbound 112 (2018): 232–36. http://dx.doi.org/10.1017/aju.2018.71.
Повний текст джерелаАнотація:
With multilateral negotiations to reform investor-state dispute settlement (ISDS) now underway, it is legitimate to wonder about the outcome. Many seem to hope for a single, global reform, but that may be unrealistic in the near future. Indeed, the article by Sergio Puig and Gregory Shaffer and the essay by Anthea Roberts both suggest that states are pursuing a wide range of changes to the current system, some of which are incompatible with one another. A number of states prefer investment arbitration. Others favor an investment court. Still others reject international dispute settlement altogether. In this essay, I identify a collection of these options and argue that their number and variety, combined with the intensity of state preferences on the matter of ISDS reform, are likely to preclude a multilateral solution for the foreseeable future and lead to continued fragmentation.
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Bottini, Gabriel, Catharine Titi, Facundo Pérez Aznar, Julien Chaisse, Marko Jovanovic, and Olga Puigdemont Sola. "Excessive Costs and Recoverability of Costs Awards in Investment Arbitration." Journal of World Investment & Trade 21, no. 2-3 (June 22, 2020): 251–99. http://dx.doi.org/10.1163/22119000-12340173.
Повний текст джерелаАнотація:
Abstract In the era of the backlash against investor-State dispute settlement, the costs of proceedings have been a prime object of criticism. This article examines the problem of excessive costs and insufficient recoverability of costs awards. Firstly, it examines the issue of excessive costs in relation to both party costs (fees and expenses of counsel, experts, and witnesses) and tribunal costs (fees and expenses of arbitrators and arbitral institutions). Secondly, it discusses the impact of the length of proceedings on costs. Thirdly, it discusses the contribution of third-party funding to excessive costs. Finally, it analyses the issue of insufficient recoverability of costs awards and the availability of mechanisms to secure prompt payment of costs awards where there are insufficient resources or an unwillingness to pay. In examining each of these concerns, this article assesses the potential contribution of four different models for reform of investment arbitration.
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Zhu, Ying. "Bottom-Up Dilemma." Columbia Journal of Environmental Law 48, no. 1 (December 29, 2022): 36. http://dx.doi.org/10.52214/cjel.v48i1.10440.
Повний текст джерелаАнотація:
Global environmental governance reflects a bottom-up trend of polycentric, adaptive, and participatory decision-making processes. The legal regime for international investment, by contrast, has a top- down structure that requires consistent, stable, and predictable governance of foreign investment in host states. This difference in structure results in an emerging “bottom-up” dilemma where states face conflicting obligations regarding the distribution of governing authorities, the frequency of norm evolution, and the inclusiveness of decision-making. This paper analyzes three aspects of the bottom-up dilemma—governing actors, scales of governance, and modes of governance—as reflected in the investment arbitration case law. It then conducts an analysis of investment treaties to assess their effectiveness in solving the dilemma and makes proposals for future treaty reform and arbitration practice. In conclusion, the paper proposes to strike a balance between, on the one hand, the protection of foreign investors’ interests in a dynamic and complex governing process, and, on the other hand, the preservation of host states’ policy space to adopt a polycentric and bottom-up governance structure.
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Fernández Masiá, Enrique, and Margherita Salvadori. "Lo que se está discutiendo en la CNUDMI: evolución o revolución en el sistema de solución de controversias inversor-Estado = What is being discussed in the UNCITRAL: evolution or revolution in the investor-State dispute." CUADERNOS DE DERECHO TRANSNACIONAL 12, no. 1 (March 5, 2020): 203. http://dx.doi.org/10.20318/cdt.2020.5185.
Повний текст джерелаАнотація:
Resumen: La principal iniciativa para reformar el sistema de solución de controversias inversor-Estado está siendo debatida en el Grupo de Trabajo III de la CNUDMI. Se están discutiendo propuestas específicas tanto para una reforma procesal como institucional. En lo que se refiere a la reforma institucional, la Unión Europea propone el establecimiento de un tribunal multilateral de inversiones, que rompería con el sistema actual ad-hoc. Con independencia de estas propuestas, cada vez parece existir un mayor acuerdo para la adopción de un Centro de asesoramiento sobre el Derecho internacional de inversiones, que podría solventar la cuestión de la duración y costes de los procedimientos, facilitar el acceso a la justicia y, mejorar la elaboración de los futuros Acuerdos internacionales.Palabras clave: Arbitraje inversor-Estado , Grupo de Trabajo III de la CNUDMI, Tribunal Multilateral de Inversiones, Mecanismo de Apelación, Centro de Asesoramiento.Abstract: The main initiative to reform the system of investor-State dispute settlement is being debated by Working Group III appointed by the UNCITRAL. Specific proposals for a procedural and institutional reform of the system are being discussed. As concerns the institutional reform, the EU proposes the establishment of a multilateral investment court, which would break the current ad hoc-based system. Independent from these proposals, there appears to be a growing consensus on the establishment of an Advisory Centre on International Investment Law, which could address the issue of costs and duration of procedures, enhance access to justice issues, apart from improving the future treaty law-making.Keywords: Investor-State Arbitration,UNCITRAL Working Group III, Multilateral Investment Court, Appellate Mechanism, Advisory Centre.
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Verburg, Cees. "Modernising the Energy Charter Treaty: An Opportunity to Enhance Legal Certainty in Investor-State Dispute Settlement." Journal of World Investment & Trade 20, no. 2-3 (May 14, 2019): 425–54. http://dx.doi.org/10.1163/22119000-12340144.
Повний текст джерелаАнотація:
Abstract The Energy Charter Treaty is a multilateral trade and investment agreement that is currently the most often-invoked investment agreement worldwide. A review of the case law under the treaty shows that its provisions have been interpreted and applied inconsistently by arbitral tribunals and domestic courts. Considering the financial and reputational consequences of investment arbitration for both the investor and the State, a lack of ‘legal certainty’ adversely affects all parties involved. This article identifies various inconsistencies, some of the causes, and proposes solutions that could enhance legal certainty in investor-State dispute settlement under the treaty. This is a timely contribution as the Energy Charter Conference has recently taken the first steps to modernise the treaty by approving a list of topics for reform, and is now considering tools to implement future reform measures.
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Ofodile, Uché Ewelukwa. "African States, Investor–State Arbitration and the ICSID Dispute Resolution System: Continuities, Changes and Challenges." ICSID Review - Foreign Investment Law Journal 34, no. 2 (2019): 296–364. http://dx.doi.org/10.1093/icsidreview/siz031.
Повний текст джерелаАнотація:
Abstract Against the backdrop of growing public discourse about the usefulness, legitimacy and effectiveness of the investor-State dispute settlement (ISDS) system, this article reviews the participation of African States in international investment arbitration and analyzes some of the cases involving African States in claims initiated under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “ICSID Convention”). Specifically, the article reviews ICSID cases involving African States in which decisions were reached on the merit [i.e. the tribunal determined whether the challenged measure breached any substantive obligation in an international investment agreement (IIA)]. Focus is on cases where claimants alleged violation of the fair and equitable treatment (FET) obligation and cases where expropriation, both direct and indirect were alleged. A review of cases involving African States suggests that there is no African peculiarity or specialty in terms of the awards and analysis of arbitral tribunals. In cases involving African States, ICSID tribunals appear to be guided primarily by the provisions of applicable texts (IIAs, contracts, and legislation) and ICSID case law rather than by the status of a Respondent State as developing or least developed. The paper raises important questions about the development dimension of the ISDS system or the lack thereof, and could contribute to current debates about ISDS reform and the need for sustainable development-oriented reform of IIAs more broadly. The paper also sheds light on the risks that broad and vague provisions in IIAs pose for host States and calls attention to the capacity constraints that limit meaningful IIA reform in Africa.
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Svoboda, Ondrej. "EU Reform Agenda in Defence of the Judicialization of International Economic Law." European Foreign Affairs Review 25, Issue 2 (August 1, 2020): 177–96. http://dx.doi.org/10.54648/eerr2020018.
Повний текст джерелаАнотація:
A widely-recognized ‘backlash against globalization’ has taken many forms in recent years, particularly in the resurgence of nationalism and protectionism. Following the rise of a legitimacy crisis in the international regime for the protection of investments, the Trumpanian attack on the World Trade Organization (WTO) Appellate Body undermines a crucial function of this organization. In this context, the European Union has traditionally been seen as an advocate of the rule of law at an international level. Currently, it leads the way to maintain rules-based global economic governance by submitting detailed proposals to reform international trade and investment adjudication bodies and galvanizing broad support for them amongst other countries. Specifically, the European Union (EU) proposes the establishment of a multilateral investment court (MIC), which it considers to be the best option to address the concerns with the existing system of investor-State dispute resolution (ISDS). At the WTO, the EU has tabled two sets of proposals to answer concerns from the US and modify the relevant parts of the Dispute Settlement Understanding (DSU). After the collapse of the WTO Appellate Body, the EU led an initiative to create an interim appeal arbitration arrangement. This article argues that, in the absence of leadership by the US, the EU plays an essential role in maintaining trade and investment governance built on international law. This article identifies two different EU approaches in its attempt to (1) modernize an existing adjudication body at the WTO and (2) promote establishment of a new judicial institution for the resolution of investment disputes. In both ways, the EU acts as an innovator in terms of international governance. European Union, reform, judicialization, WTO, Appellate Body, UNCITRAL, investor-state dispute settlement (ISDS), multilateral investment court
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Giorgetti, Chiara, Steven Ratner, Jeffrey Dunoff, Shotaro Hamamoto, Luke Nottage, Stephan W. Schill, and Michael Waibel. "Independence and Impartiality of Adjudicators in Investment Dispute Settlement: Assessing Challenges and Reform Options." Journal of World Investment & Trade 21, no. 2-3 (June 22, 2020): 441–74. http://dx.doi.org/10.1163/22119000-12340178.
Повний текст джерелаАнотація:
Abstract As discussions on the reform of investor-State dispute settlement deepen and gather momentum at the United Nations Commission on International Trade Law (UNCITRAL), this article delves into a specific and fundamental issue: the requirement that adjudicators in investment disputes are and remain independent and impartial. It begins by explaining the principle of independence and impartiality in international courts and tribunals, with a focus on arbitral institutions. The article then highlights a range of specific concerns that the present system of investor-State arbitration raises in respect of independence and impartiality. Finally, it provides a comparative analysis of how different reform proposals presently discussed within UNCITRAL Working Group III would fare in terms of delivering a dispute resolution mechanism that ensures independence and impartiality. Rather than providing one specific solution, this article assesses the different options discussed, with the aim to help both policy-makers considering reform and other stakeholders and scholars.
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Zarra, Giovanni. "The Issue of Incoherence in Investment Arbitration: Is There Need for a Systemic Reform?" Chinese Journal of International Law 17, no. 1 (March 1, 2018): 137–85. http://dx.doi.org/10.1093/chinesejil/jmy005.
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Behn, Daniel, Malcolm Langford, and Laura Létourneau-Tremblay. "Empirical Perspectives on Investment Arbitration: What Do We Know? Does It Matter?" Journal of World Investment & Trade 21, no. 2-3 (June 22, 2020): 188–250. http://dx.doi.org/10.1163/22119000-12340172.
Повний текст джерелаАнотація:
Abstract Due to the problem-centric nature of its mandate, empirical research has been relatively central in the United Nations Commission on International Trade Law (UNCITRAL) investment arbitration reform process. In this article, the authors seek to provide a state-of-the-art summary and assessment of empirical studies on the six identified concerns of states: legal cost, duration of proceedings, consistency, correctness, diversity and independence. The article asks: (1) What do we know? and (2) Does it matter? The survey of evidence reveals an emerging base of quantitative, qualitative and computational evidence for justifying some but not all concerns and understanding their causes. However, there are challenges in accessing all relevant data, modelling outcomes and evaluating whether there was normatively a problem. The article concludes by indicating that some concerns are clearly justified, others not, and others fall within an unknown category.
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Семилютина, Наталья, and Natalya Semilyutina. "Corporate Disputes and Development of Alternative Disputes Resolution." Journal of Russian Law 3, no. 2 (February 4, 2015): 0. http://dx.doi.org/10.12737/7629.
Повний текст джерелаАнотація:
The article presents analysis of the practice of the corporate disputes resolution in commercial arbitration as well as in the state courts. According to the author the example “Maksimov case” which was often mentioned as an example of a corporate dispute resolved in commercial arbitration but set aside by the state justice proves that the line between corporate disputes and non-corporate dispute is almost invisible even after the legislation has been changed. The attempts to make corporate disputes non-arbitrable makes the regulation of the market relations unpredictable and spoils th investment climate. The so called “pocket arbitration” (or “corporate arbitration”) may be useful for the improvement of intercorporate relations, or resolution of the disputes among professionals. The “one-side” or “optional” arbitration clauses sometimes may serve as a form of investor protection of consumer protection as it gives the weak party advantage of choice of the form of the legal protection of its interests. According to the article, publication of arbitration rules and awards would make arbitration more transparent and more effective. The confidentiality should be preserved for the mediation proceedings. Author gives examples of various mediation proceedings. On the basis of the analysis the author makes recommendations for the improvement of the national legislation. Understanding arbitration and mediation as part of the judicial systems reform in Russia author recommends to use the international standards of regulation reflected in th UNCITRAL Model Arbitration Law.
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Cima, Elena. "Retooling the Energy Charter Treaty for climate change mitigation: lessons from investment law and arbitration." Journal of World Energy Law & Business 14, no. 2 (February 26, 2021): 75–87. http://dx.doi.org/10.1093/jwelb/jwab007.
Повний текст джерелаАнотація:
Abstract In 2017, the Energy Charter Treaty (ECT) began a modernization process aimed at updating, clarifying, and modernizing a number of provisions of the Treaty. Considering the scope of application of the Treaty—cooperation in energy trade, transit, and investment—there is hardly any doubt that the modernization kicked off in 2017 offers a springboard for constructive reform and a unique opportunity to bring the Treaty closer in line with the objectives of the Paris Agreement. Although none of the items selected by the Energy Charter Conference and open for discussion and reform mention climate change or clean energy, a careful analysis of the relevant practice in both treaty drafting and adjudication can provide valuable insights as to how to steer the discussions on some of the existing items in a climate-friendly direction. The purpose of this article is to rely on this relevant practice to explore promising avenues to ‘retool’ the Treaty for climate change mitigation, in other words, to imagine a Treaty that would better reflect climate change concerns and clean energy transition goals.
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Arafa, Ahmed, and Dexiang Guo. "Evaluating an International Investment Court for International Investment Disputes Under European Union’s Proposal." Journal of Politics and Law 14, no. 2 (December 29, 2020): 74. http://dx.doi.org/10.5539/jpl.v14n2p74.
Повний текст джерелаАнотація:
Berserk resentment of the existing framework regulating the international investment protection system and the operating of investment tribunals have direct to a prevalent perception that there is an immediate need for reform. This is especially pronounced having to do with Investor-State dispute settlement (ISDS), where there is an overall perception that it is not anything but an unfair and unbiased arbitration system available to decide disputes between states and foreign investors. Therefore, ISDS has been obtained a reputation for being non-transparent, one-sided, and contradictory in all decisions made by ISDS tribunals. The European Union (EU) has responded to this need, by proposing an international investment court; in this research, an attempt is making to look at this court, according to the European Union’s proposal. Moreover, the research explores the potential in creating this international investment court since a system can be drastically altered. However, some criticism can be addressed by international investment courts. However, specific steps can be taken to improve the international community’s investor-state dispute settlement system by re-valuating all the objectives and goals to solve international investment disputes.
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Wang, Chao, Jing Ning, and Xiaohan Zhang. "International Investment and Indigenous Peoples’ Environment: A Survey of ISDS Cases from 2000 to 2020." International Journal of Environmental Research and Public Health 18, no. 15 (July 22, 2021): 7798. http://dx.doi.org/10.3390/ijerph18157798.
Повний текст джерелаАнотація:
Indigenous peoples’ environments can be easily disrupted by foreign investments, and disputes have occasionally occurred over the past few years. The objective of this research article is to examine if current international investment law, especially its investor-state dispute settlement (ISDS) mechanism, could provide necessary protection to Indigenous rights. We searched all publicly available ISDS cases from 2000 to 2020, and selected 10 typical ones for comprehensive case study by using various research methods such as doctrinal legal research and comparative analysis. Our research revealed that Indigenous peoples’ participation in the ISDS proceedings is legally restrained, time-consuming, and rarely favorably decided by the arbitral tribunals. Responsibility for such undesirable outcomes rests with all stakeholders involved in the process, while the consequences of post-arbitration tend to be “triple losing”. These findings highlight the quest for a more sustainable international investment regime that promotes Indigenous peoples’ wellbeing and environment protection. We argue that future reform could be promoted not only over ISDS procedural matters, but also by upgrading substantive rules in international investment agreements (IIAs), emphasizing free, prior, and informed consent (FPIC), and strengthening foreign investors’ corporate social responsibilities (CSR).
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Gicquello, Myriam. "The Reform of Investor-State Dispute Settlement: Bringing the Findings of Social Psychology into the Debate." Journal of International Dispute Settlement 10, no. 4 (September 9, 2019): 561–81. http://dx.doi.org/10.1093/jnlids/idz017.
Повний текст джерелаАнотація:
Abstract This article introduces the findings of social psychology, especially group psychology, into the study of investment arbitration. It argues that arbitrators as members of small groups (i.e. tribunals or divisions in an Investment Court) might be subjected to a number of influences inherent to such collective settings—factors already proven to be at play in domestic courts. In turn, identifying those factors provides an opportunity to reduce their impact on the decision-making of legal adjudicators through the implementation of adequate remedies. Adopting one of the most popular models of group decision-making—groupthink— this article discusses the manifestations and implications of this theory for Investor-State Dispute Settlement both in its ad hoc and institutionalized forms. Specifically, it claims that the Investment Court defended by the EU and generally posited in some agreements might not be that different from the current system from a socio-psychological perspective, and hence could be further improved.
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Nriezedi-Anejionu, Chinenyendo. "Could the Non-domestication of Nigerian Treaties Affect International Energy Investment Attraction into the Country?" African Journal of International and Comparative Law 28, no. 1 (February 2020): 122–44. http://dx.doi.org/10.3366/ajicl.2020.0305.
Повний текст джерелаАнотація:
In a bid to attract foreign direct investments (FDI) into the energy sector, Nigeria has signed many investment and energy-related treaties. However, many of these treaties have not been ratified and domesticated as required by the 1999 Nigerian Constitution and as such cannot be applied by domestic courts when necessary. This raises serious legal questions on the status of the various energy investment-relevant treaties Nigeria has signed. This is especially relevant to bilateral investment treaties (BITs) where their non-domestication renders their provisions not legally binding on domestic courts. It becomes problematic in situations where certain provisions in BITs such as the exhaustion of local remedies (ELR), fork-in-the-road (FITR), denial of justice and expropriation claims, require disputes to be addressed (at least initially) in domestic courts before international arbitration is accessed. This article provides an analysis of various ways non-domestication of treaties could affect the investment interests of a dualist country such as Nigeria that is actively seeking to attract FDI for the development of its energy sector. Pointing out the implications and various ways both investors' and Nigeria's interests could be undermined, it argues for a reform in the way treaties are implemented in Nigeria to facilitate their domestication.