Pub Date : 2019-04-26DOI: 10.4337/9781785369858.00015
A. D. Luca, G. Sacerdoti
{"title":"Investment Dispute Settlement","authors":"A. D. Luca, G. Sacerdoti","doi":"10.4337/9781785369858.00015","DOIUrl":"https://doi.org/10.4337/9781785369858.00015","url":null,"abstract":"","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126384833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-04-01DOI: 10.1017/9781316847954.021
C. Lim, Jean Ho, M. Paparinskis
CHAPTER OUTLINE This concluding chapter discusses the current backlash against investment arbitration and investment treaties. Section 1 discusses the backlash to investment arbitration under NAFTA's Chapter 11 in the early 2000s, and the consequent ‘rebalancing’ of the US Prototype BIT of 1994 in 2004. The chapter goes on to discuss how the backlash grew, beginning in 2007, from Bolivia's, Ecuador's and Venezuela's terminations of their participation in the ICSID Convention and other similar terminations worldwide to various national efforts to ‘rebalance’ (i.e. rewrite) their own BITs and other investment agreements. Section 2 highlights some of the latest treaty clauses which have emerged from this worldwide rebalancing effort, focusing on some of the most important substantive clauses; namely, FET and expropriation clauses, particularly in connection with the controversy over the continued ability of host States to enact environmental, health and other public welfare measures. The chapter then turns to current procedural innovations and proposals for reform, such as the proposal for an appellate mechanism. Section 3 concludes this chapter with the European Union's current proposal to replace investment arbitration altogether with a ‘Multilateral Investment Court’. Today, the system for settling investment disputes through investment arbitration faces proposals for its improvement, as well as for its demise, or at least its diminution as the principal mode of investment dispute settlement today. Yet, here is a field which has always seen such shifts in sentiment and little of what has been said in this book will likely be irrelevant in understanding what the future brings. INTRODUCTION For more than a decade there has been a global backlash against investment treaties and investment treaty arbitration. The early signs had showed in attempts to achieve more ‘balanced’ BITs in the 2004 US and Canadian Model BITs. 2004 also saw the Methanex arbitration. Following Methanex , ‘expropriation safeguards’ – meaning new forms of treaty language which guard against potentially overbroad findings of expropriation, particularly of indirect or regulatory expropriation – have come into focus. The Methanex Award has since been cited by, among others, the tribunal in Saluka for the general proposition that general, non-discriminatory regulation commonly accepted to be within the scope of a State's police powers will not be taken to amount to indirect expropriation.
{"title":"New Directions in International Investment Law and Arbitration","authors":"C. Lim, Jean Ho, M. Paparinskis","doi":"10.1017/9781316847954.021","DOIUrl":"https://doi.org/10.1017/9781316847954.021","url":null,"abstract":"CHAPTER OUTLINE This concluding chapter discusses the current backlash against investment arbitration and investment treaties. Section 1 discusses the backlash to investment arbitration under NAFTA's Chapter 11 in the early 2000s, and the consequent ‘rebalancing’ of the US Prototype BIT of 1994 in 2004. The chapter goes on to discuss how the backlash grew, beginning in 2007, from Bolivia's, Ecuador's and Venezuela's terminations of their participation in the ICSID Convention and other similar terminations worldwide to various national efforts to ‘rebalance’ (i.e. rewrite) their own BITs and other investment agreements. Section 2 highlights some of the latest treaty clauses which have emerged from this worldwide rebalancing effort, focusing on some of the most important substantive clauses; namely, FET and expropriation clauses, particularly in connection with the controversy over the continued ability of host States to enact environmental, health and other public welfare measures. The chapter then turns to current procedural innovations and proposals for reform, such as the proposal for an appellate mechanism. Section 3 concludes this chapter with the European Union's current proposal to replace investment arbitration altogether with a ‘Multilateral Investment Court’. Today, the system for settling investment disputes through investment arbitration faces proposals for its improvement, as well as for its demise, or at least its diminution as the principal mode of investment dispute settlement today. Yet, here is a field which has always seen such shifts in sentiment and little of what has been said in this book will likely be irrelevant in understanding what the future brings. INTRODUCTION For more than a decade there has been a global backlash against investment treaties and investment treaty arbitration. The early signs had showed in attempts to achieve more ‘balanced’ BITs in the 2004 US and Canadian Model BITs. 2004 also saw the Methanex arbitration. Following Methanex , ‘expropriation safeguards’ – meaning new forms of treaty language which guard against potentially overbroad findings of expropriation, particularly of indirect or regulatory expropriation – have come into focus. The Methanex Award has since been cited by, among others, the tribunal in Saluka for the general proposition that general, non-discriminatory regulation commonly accepted to be within the scope of a State's police powers will not be taken to amount to indirect expropriation.","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129611667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-04-01DOI: 10.1017/9781316847954.005
C. Lim, Jean Ho, M. Paparinskis
CHAPTER OUTLINE This chapter charts the rise of treaties as key instruments of foreign investment protection. In this chapter, investment treaties refer to bilateral or multilateral treaties that address investment protection exclusively, as well as chapters in free trade agreements that highlight investment protection as one of several trade-related concerns. There are currently more than 3,000 investment treaties in existence, weaving almost every country in the world into a vast, complex web of overlapping treaties. Today, foreign investment that is not subject to investment treaty protection is the exception to the norm. Section 1 situates the emergence of investment treaties in their proper historical, political and economic context. Section 2 discusses the period of rapid growth in the number of investment treaties, the ensuing surge in the invocation of investment treaties by foreign investors against host States and the consequences of the turn to investment treaty protection. Section 3 demonstrates how investment treaties, as well as the regime they fostered, are currently undergoing a period of resistance and change. Measures that purportedly achieve a better balance between the right of investors to protection and the right of States to regulate are being taken to address the deficiencies in the status quo. INTRODUCTION The rise of investment treaties as important instruments of foreign investment protection is a recent phenomenon. Although foreign investment existed since the days of exploration and empire where foreign trade and settlement flourished, the traditional mode of recourse in the event of a dispute between the investor and the host State was diplomatic protection. This involved the investor writing to his home State with a claim against the host State, and the home State deciding whether to take up the matter with its foreign counterpart. However, the discretionary nature of diplomatic protection offered neither clarity nor certainty to investors seeking recompense for host State interference with their investments. The appeal of diplomatic protection waned in the aftermath of the two World Wars, which devastated national economies and ushered in a period of urgent economic rebuilding. States actively sought a way to stimulate the inward flow of foreign capital while simultaneously safeguarding that capital, thereby ensuring sustainable economic rejuvenation and development. Investment treaties, which offer holders of foreign capital assurances that diplomatic protection does not, are promising means to those ends.
{"title":"The Metamorphosis of Investment Treaties","authors":"C. Lim, Jean Ho, M. Paparinskis","doi":"10.1017/9781316847954.005","DOIUrl":"https://doi.org/10.1017/9781316847954.005","url":null,"abstract":"CHAPTER OUTLINE This chapter charts the rise of treaties as key instruments of foreign investment protection. In this chapter, investment treaties refer to bilateral or multilateral treaties that address investment protection exclusively, as well as chapters in free trade agreements that highlight investment protection as one of several trade-related concerns. There are currently more than 3,000 investment treaties in existence, weaving almost every country in the world into a vast, complex web of overlapping treaties. Today, foreign investment that is not subject to investment treaty protection is the exception to the norm. Section 1 situates the emergence of investment treaties in their proper historical, political and economic context. Section 2 discusses the period of rapid growth in the number of investment treaties, the ensuing surge in the invocation of investment treaties by foreign investors against host States and the consequences of the turn to investment treaty protection. Section 3 demonstrates how investment treaties, as well as the regime they fostered, are currently undergoing a period of resistance and change. Measures that purportedly achieve a better balance between the right of investors to protection and the right of States to regulate are being taken to address the deficiencies in the status quo. INTRODUCTION The rise of investment treaties as important instruments of foreign investment protection is a recent phenomenon. Although foreign investment existed since the days of exploration and empire where foreign trade and settlement flourished, the traditional mode of recourse in the event of a dispute between the investor and the host State was diplomatic protection. This involved the investor writing to his home State with a claim against the host State, and the home State deciding whether to take up the matter with its foreign counterpart. However, the discretionary nature of diplomatic protection offered neither clarity nor certainty to investors seeking recompense for host State interference with their investments. The appeal of diplomatic protection waned in the aftermath of the two World Wars, which devastated national economies and ushered in a period of urgent economic rebuilding. States actively sought a way to stimulate the inward flow of foreign capital while simultaneously safeguarding that capital, thereby ensuring sustainable economic rejuvenation and development. Investment treaties, which offer holders of foreign capital assurances that diplomatic protection does not, are promising means to those ends.","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133752216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-04-01DOI: 10.1017/9781316847954.013
C. Lim, Jean Ho, M. Paparinskis
CHAPTER OUTLINE This chapter discusses two important ‘absolute’ standards of treaty protection – fair and equitable treatment (FET) and full protection and security (FPS). Section 1 explains the idea of an international minimum standard (MST) for the protection of foreign-owned property, and its oft-perceived relationship with both FET and FPS treaty clauses. Section 2 contains excerpts of some well-known arbitral awards discussing both FET and FPS. Section 2.1 describes the most common heads of claim under the general rubric of FET. Section 2.2 goes on to reproduce tribunal awards which discuss the precise standard of treatment under FPS. Thereafter, Section 2.3 discusses some of the complexities faced today in the growing inter-relationship between FET and FPS. Section 3 goes on to reproduce two of the latest treaty clauses, including an attempt to enumerate and particularise the contents of the FET obligation, while Section 4 contains an expanded discussion of a possible key difference between ‘qualified’ and ‘unqualified’ treaty clauses – i.e. a difference which turns upon whether the treaty language stipulates or suggests a connection with customary international law standards of protection. Notwithstanding particular forms of treaty language, might there be a latent and even more complex conceptual interaction between custom and treaty? That issue might perhaps be distilled into a single question – with the many thousands of bilateral investment treaties which have come into being, has not the customary international law standard of protection risen over time on the back of such treaty practice? INTRODUCTION The standards discussed in this chapter are referred to as ‘absolute’, the reason being that unlike the most favoured nation standard which requires all foreign investors to be treated equally favourably, or the national treatment standard which requires foreign and domestic investors to be treated equally favourably, fair and equitable treatment (FET) and full protection and security (‘FPS’) are not measured against – they are not ‘relative to’ – the nature of treatment given elsewhere. It is also to be noted that a FET claim is the most popular head of claim today, by reason of the fact that it may be easier to establish than an expropriation claim. RELATIONSHIP WITH AN INTERNATIONAL MINIMUM STANDARD OF TREATMENT The ‘Minimum Standard’ of Treatment We begin with the perspective most commonly associated with contemporary US treaties.
{"title":"Fair and Equitable Treatment, and Full Protection and Security","authors":"C. Lim, Jean Ho, M. Paparinskis","doi":"10.1017/9781316847954.013","DOIUrl":"https://doi.org/10.1017/9781316847954.013","url":null,"abstract":"CHAPTER OUTLINE This chapter discusses two important ‘absolute’ standards of treaty protection – fair and equitable treatment (FET) and full protection and security (FPS). Section 1 explains the idea of an international minimum standard (MST) for the protection of foreign-owned property, and its oft-perceived relationship with both FET and FPS treaty clauses. Section 2 contains excerpts of some well-known arbitral awards discussing both FET and FPS. Section 2.1 describes the most common heads of claim under the general rubric of FET. Section 2.2 goes on to reproduce tribunal awards which discuss the precise standard of treatment under FPS. Thereafter, Section 2.3 discusses some of the complexities faced today in the growing inter-relationship between FET and FPS. Section 3 goes on to reproduce two of the latest treaty clauses, including an attempt to enumerate and particularise the contents of the FET obligation, while Section 4 contains an expanded discussion of a possible key difference between ‘qualified’ and ‘unqualified’ treaty clauses – i.e. a difference which turns upon whether the treaty language stipulates or suggests a connection with customary international law standards of protection. Notwithstanding particular forms of treaty language, might there be a latent and even more complex conceptual interaction between custom and treaty? That issue might perhaps be distilled into a single question – with the many thousands of bilateral investment treaties which have come into being, has not the customary international law standard of protection risen over time on the back of such treaty practice? INTRODUCTION The standards discussed in this chapter are referred to as ‘absolute’, the reason being that unlike the most favoured nation standard which requires all foreign investors to be treated equally favourably, or the national treatment standard which requires foreign and domestic investors to be treated equally favourably, fair and equitable treatment (FET) and full protection and security (‘FPS’) are not measured against – they are not ‘relative to’ – the nature of treatment given elsewhere. It is also to be noted that a FET claim is the most popular head of claim today, by reason of the fact that it may be easier to establish than an expropriation claim. RELATIONSHIP WITH AN INTERNATIONAL MINIMUM STANDARD OF TREATMENT The ‘Minimum Standard’ of Treatment We begin with the perspective most commonly associated with contemporary US treaties.","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126306649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1017/9781108913652.003
{"title":"The Origins of Investment Protection and International Investment Law","authors":"","doi":"10.1017/9781108913652.003","DOIUrl":"https://doi.org/10.1017/9781108913652.003","url":null,"abstract":"","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125230276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1017/9781108913652.012
{"title":"Protected Investments","authors":"","doi":"10.1017/9781108913652.012","DOIUrl":"https://doi.org/10.1017/9781108913652.012","url":null,"abstract":"","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131312330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1007/978-1-349-12659-0_12
A. Mullis, Ken Oliphant
{"title":"Defences","authors":"A. Mullis, Ken Oliphant","doi":"10.1007/978-1-349-12659-0_12","DOIUrl":"https://doi.org/10.1007/978-1-349-12659-0_12","url":null,"abstract":"","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123474131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1017/9781108913652.023
{"title":"Index","authors":"","doi":"10.1017/9781108913652.023","DOIUrl":"https://doi.org/10.1017/9781108913652.023","url":null,"abstract":"","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133984824","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1017/9781108913652.017
Axel Weissenfels
{"title":"Umbrella Clauses","authors":"Axel Weissenfels","doi":"10.1017/9781108913652.017","DOIUrl":"https://doi.org/10.1017/9781108913652.017","url":null,"abstract":"","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116231255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1017/9781108913652.007
{"title":"Jurisdiction, Admissibility and Parallel Proceedings","authors":"","doi":"10.1017/9781108913652.007","DOIUrl":"https://doi.org/10.1017/9781108913652.007","url":null,"abstract":"","PeriodicalId":138481,"journal":{"name":"International Investment Law and Arbitration","volume":"304 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133988108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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