Pub Date : 2023-06-30DOI: 10.1093/icsidreview/siad009
T. Ackermann, Sebastian Wuschka
{"title":"The Applicability of Investment Treaties in the Context of Russia’s Aggression against Ukraine","authors":"T. Ackermann, Sebastian Wuschka","doi":"10.1093/icsidreview/siad009","DOIUrl":"https://doi.org/10.1093/icsidreview/siad009","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76663789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.1093/icsidreview/siad012
Patrick Leonard
{"title":"Patrick Costello v the Government of Ireland, Ireland and the Attorney General: Obstacles to the Ratification of CETA in the Irish Constitutional Context","authors":"Patrick Leonard","doi":"10.1093/icsidreview/siad012","DOIUrl":"https://doi.org/10.1093/icsidreview/siad012","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77519826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-26DOI: 10.1093/icsidreview/siad008
Andrés Mazuera
{"title":"Glencore v Colombia: A Tale of Legally Coerced Evidence","authors":"Andrés Mazuera","doi":"10.1093/icsidreview/siad008","DOIUrl":"https://doi.org/10.1093/icsidreview/siad008","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83611111","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-26DOI: 10.1093/icsidreview/siad014
Mees Brenninkmeijer, F. Gélinas
It is widely accepted that counterclaims may not be used as a means to exceed the limits of a tribunal’s jurisdiction, while they must at the same time be closely connected to the other party’s claim. However, in the particular context of investment arbitration, these two propositions create a tension that has led to a problematic and unfair construction of the investor-State dispute settlement mechanism. This article explores the foundations for a better, more integrated approach. It argues that jurisdiction over counterclaims should be seen as incidental to the one already established over the original claim, allowing tribunals to hear a wider range of counterclaims. This is inherent to the exercise of a tribunal’s adjudicative function, and rests on a foundation not only of implied consent, but also on one of principle. The approach presented here has the potential to protect counterclaims as a matter of procedural fairness and to address some of the reasons for the backlash against international investment arbitration law.
{"title":"Counterclaims in Investment Arbitration: Towards an Integrated Approach","authors":"Mees Brenninkmeijer, F. Gélinas","doi":"10.1093/icsidreview/siad014","DOIUrl":"https://doi.org/10.1093/icsidreview/siad014","url":null,"abstract":"\u0000 It is widely accepted that counterclaims may not be used as a means to exceed the limits of a tribunal’s jurisdiction, while they must at the same time be closely connected to the other party’s claim. However, in the particular context of investment arbitration, these two propositions create a tension that has led to a problematic and unfair construction of the investor-State dispute settlement mechanism. This article explores the foundations for a better, more integrated approach. It argues that jurisdiction over counterclaims should be seen as incidental to the one already established over the original claim, allowing tribunals to hear a wider range of counterclaims. This is inherent to the exercise of a tribunal’s adjudicative function, and rests on a foundation not only of implied consent, but also on one of principle. The approach presented here has the potential to protect counterclaims as a matter of procedural fairness and to address some of the reasons for the backlash against international investment arbitration law.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82341504","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-22DOI: 10.1093/icsidreview/siad018
Richard Deutsch, Rafael T Boza, Gary J Shaw
Journal Article Book Review Get access Richard Happ and Stephan Wilske (eds), ICSID Rules and Regulations 2022: Article-by-Article Commentary ( C.H. Beck 2022), ISBN: 978-3-406-75349-7 (hardback), pp XXV, 867, €280.00 Richard Deutsch, Richard Deutsch Search for other works by this author on: Oxford Academic Google Scholar Rafael T Boza, Rafael T Boza Search for other works by this author on: Oxford Academic Google Scholar Gary J Shaw Gary J Shaw Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, siad018, https://doi.org/10.1093/icsidreview/siad018 Published: 22 June 2023 Article history Received: 10 May 2023 Editorial decision: 18 May 2023 Accepted: 23 May 2023 Corrected and typeset: 22 June 2023 Published: 22 June 2023
{"title":"ICSID Rules and Regulations 2022: Article-by-Article Commentary","authors":"Richard Deutsch, Rafael T Boza, Gary J Shaw","doi":"10.1093/icsidreview/siad018","DOIUrl":"https://doi.org/10.1093/icsidreview/siad018","url":null,"abstract":"Journal Article Book Review Get access Richard Happ and Stephan Wilske (eds), ICSID Rules and Regulations 2022: Article-by-Article Commentary ( C.H. Beck 2022), ISBN: 978-3-406-75349-7 (hardback), pp XXV, 867, €280.00 Richard Deutsch, Richard Deutsch Search for other works by this author on: Oxford Academic Google Scholar Rafael T Boza, Rafael T Boza Search for other works by this author on: Oxford Academic Google Scholar Gary J Shaw Gary J Shaw Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, siad018, https://doi.org/10.1093/icsidreview/siad018 Published: 22 June 2023 Article history Received: 10 May 2023 Editorial decision: 18 May 2023 Accepted: 23 May 2023 Corrected and typeset: 22 June 2023 Published: 22 June 2023","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136178071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-15DOI: 10.1093/icsidreview/siad007
Anuki Suraweera
The rule against reflective loss claims by shareholders is a fundamental tenet of corporations law, accepted across numerous domestic law jurisdictions and under customary international law. Yet bilateral investment treaties (BITs) have long broken from this conventional approach by allowing shareholders to bring claims for their indirect loss. UNCITRAL Working Group III has identified that this anomalous approach to shareholder claims may be an issue in relation to which reform is desirable. In support of Working Group III’s multilateral reform agenda, this article examines a range of reforms options available to States concerning shareholder reflective loss claims, and suggests that treaty-based derivative claims mechanisms are a suitable choice for reform. Derivative claims mechanisms have been included in a number of international investment agreements (IIAs), although the arbitral practice in relation to such provisions has not previously been the subject of close scrutiny. The examination of this arbitral practice, drawing in particular from past practice applying the North American Free Trade Agreement, reveals that tribunals have not consistently interpreted these mechanisms as precluding shareholder reflective loss claims, indicating that States need to include explicit clarificatory treaty language to render these clauses effective.
{"title":"Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States","authors":"Anuki Suraweera","doi":"10.1093/icsidreview/siad007","DOIUrl":"https://doi.org/10.1093/icsidreview/siad007","url":null,"abstract":"\u0000 The rule against reflective loss claims by shareholders is a fundamental tenet of corporations law, accepted across numerous domestic law jurisdictions and under customary international law. Yet bilateral investment treaties (BITs) have long broken from this conventional approach by allowing shareholders to bring claims for their indirect loss. UNCITRAL Working Group III has identified that this anomalous approach to shareholder claims may be an issue in relation to which reform is desirable. In support of Working Group III’s multilateral reform agenda, this article examines a range of reforms options available to States concerning shareholder reflective loss claims, and suggests that treaty-based derivative claims mechanisms are a suitable choice for reform. Derivative claims mechanisms have been included in a number of international investment agreements (IIAs), although the arbitral practice in relation to such provisions has not previously been the subject of close scrutiny. The examination of this arbitral practice, drawing in particular from past practice applying the North American Free Trade Agreement, reveals that tribunals have not consistently interpreted these mechanisms as precluding shareholder reflective loss claims, indicating that States need to include explicit clarificatory treaty language to render these clauses effective.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85650013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-09DOI: 10.1093/icsidreview/siad011
A. Mourre
Amongst the many reforms of international arbitration that are currently discussed, the adoption of a universal standard for conflicts disclosures is particularly necessary. Currently, the subjective standard “in the eyes of the parties” that is adopted by the IBA Guidelines and the ICC Rules coexist with the objective standard “from the perspective of a fair-minded and informed observer”, as defined by the English Supreme Court in Halliburton. The author submits that the IBA-ICC standard is preferable for it fosters more complete disclosures and encourages transparency. However, the subjective standard does not eliminate the moral hazard of non-disclosures and the author recommends that it be combined with a purely objective requirement to disclose based on a pre-established list of circumstances.
{"title":"For a Universal Standard for Conflicts Disclosures","authors":"A. Mourre","doi":"10.1093/icsidreview/siad011","DOIUrl":"https://doi.org/10.1093/icsidreview/siad011","url":null,"abstract":"\u0000 Amongst the many reforms of international arbitration that are currently discussed, the adoption of a universal standard for conflicts disclosures is particularly necessary. Currently, the subjective standard “in the eyes of the parties” that is adopted by the IBA Guidelines and the ICC Rules coexist with the objective standard “from the perspective of a fair-minded and informed observer”, as defined by the English Supreme Court in Halliburton. The author submits that the IBA-ICC standard is preferable for it fosters more complete disclosures and encourages transparency. However, the subjective standard does not eliminate the moral hazard of non-disclosures and the author recommends that it be combined with a purely objective requirement to disclose based on a pre-established list of circumstances.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80997681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-25DOI: 10.1093/icsidreview/siad006
Arman Sarvarian
In recent years, there has been mounting interest in the possibility of the Paris Agreement 2015 featuring in investor-State arbitration.2 This applies particularly to investments connected to greenhouse gas emissions mitigation, insured emissions and other financial investments to be made under the internationally supervised emission-offsetting mechanism to be activated in accordance with the Glasgow Climate Pact 2021.3 While modernisation reforms to the Energy Charter Treaty (ECT) are anticipated to include direct reference to the Paris Agreement, their effect has been thrown into doubt by recent withdrawals of EU Member States. Although the past two years have seen increasingly successful efforts to enforce the Paris Agreement before national courts, a disputing party has yet to invoke it in an investor-State arbitration. Whereas environmental exception clauses, direct references to the Paris Agreement and substantive obligations on environmental protection remain rare in international investment agreements, this situation is likely to change as ‘green investment’ expands and high-emission investors react to intensification of host State efforts to mitigate emissions. In analysing recent arbitral jurisprudence on the right of regulation, it is suggested that the most significant effect of the Paris Agreement on international investment law may be in defining the investment relationship of the disputing parties with respect to the liability of the host State for alleged breaches of the substantive protections for the investment under investment treaties, contracts and laws.
{"title":"Invoking the Paris Agreement in Investor-State Arbitration","authors":"Arman Sarvarian","doi":"10.1093/icsidreview/siad006","DOIUrl":"https://doi.org/10.1093/icsidreview/siad006","url":null,"abstract":"\u0000 In recent years, there has been mounting interest in the possibility of the Paris Agreement 2015 featuring in investor-State arbitration.2 This applies particularly to investments connected to greenhouse gas emissions mitigation, insured emissions and other financial investments to be made under the internationally supervised emission-offsetting mechanism to be activated in accordance with the Glasgow Climate Pact 2021.3 While modernisation reforms to the Energy Charter Treaty (ECT) are anticipated to include direct reference to the Paris Agreement, their effect has been thrown into doubt by recent withdrawals of EU Member States. Although the past two years have seen increasingly successful efforts to enforce the Paris Agreement before national courts, a disputing party has yet to invoke it in an investor-State arbitration. Whereas environmental exception clauses, direct references to the Paris Agreement and substantive obligations on environmental protection remain rare in international investment agreements, this situation is likely to change as ‘green investment’ expands and high-emission investors react to intensification of host State efforts to mitigate emissions. In analysing recent arbitral jurisprudence on the right of regulation, it is suggested that the most significant effect of the Paris Agreement on international investment law may be in defining the investment relationship of the disputing parties with respect to the liability of the host State for alleged breaches of the substantive protections for the investment under investment treaties, contracts and laws.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82288159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-14DOI: 10.1093/icsidreview/siac033
John R. Crook
{"title":"Kimberly-Clark Dutch Holdings, BV, Kimberly-Clark SLU, and Kimberly-Clark BVBA v Venezuela","authors":"John R. Crook","doi":"10.1093/icsidreview/siac033","DOIUrl":"https://doi.org/10.1093/icsidreview/siac033","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2023-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74916706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：