Pub Date : 2021-07-09DOI: 10.1093/ICSIDREVIEW/SIAA041
Ndanga Kamau
{"title":"OI European Group BV v Venezuela","authors":"Ndanga Kamau","doi":"10.1093/ICSIDREVIEW/SIAA041","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA041","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85912671","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 : 2021-06-18DOI: 10.1093/icsidreview/siaa040
Menalco J Solis
Investor-State tribunals are equipped with lis pendens, res judicata, abuse of process, and adverse cost orders to ensure that parties are not twice vexed for the same issue or to minimize the harm from multiplying action. When abuse of process is applied to a parallel or successive arbitration, it is considered whether the later action could have been joined, consolidated or coordinated with an earlier one and whether there is a reasonable basis for bringing a separate action. The good faith question surrounds the accused’s intent or purpose, which can be measured subjectively if there is an intent to harm or objectively in the absence of reasonable basis. Raising the question of abuse thus involves asking whether the accused acted in good faith. But where lis pendens and res judicata do not apply, there is a colorable basis for the claim and sensible grounds for advancing with separate proceedings, the claimant is within right to bring further action. The good faith element of abuse reaches the middle ground between the claimant’s interest in accessing the arbitral forum and the respondent’s interest in being free from vexation.
{"title":"Good-Faith Rule against Abusing Process by Multiplying Action","authors":"Menalco J Solis","doi":"10.1093/icsidreview/siaa040","DOIUrl":"https://doi.org/10.1093/icsidreview/siaa040","url":null,"abstract":"\u0000 Investor-State tribunals are equipped with lis pendens, res judicata, abuse of process, and adverse cost orders to ensure that parties are not twice vexed for the same issue or to minimize the harm from multiplying action. When abuse of process is applied to a parallel or successive arbitration, it is considered whether the later action could have been joined, consolidated or coordinated with an earlier one and whether there is a reasonable basis for bringing a separate action. The good faith question surrounds the accused’s intent or purpose, which can be measured subjectively if there is an intent to harm or objectively in the absence of reasonable basis. Raising the question of abuse thus involves asking whether the accused acted in good faith. But where lis pendens and res judicata do not apply, there is a colorable basis for the claim and sensible grounds for advancing with separate proceedings, the claimant is within right to bring further action. The good faith element of abuse reaches the middle ground between the claimant’s interest in accessing the arbitral forum and the respondent’s interest in being free from vexation.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88318344","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 : 2021-06-18DOI: 10.1093/icsidreview/siaa055
A. Bjorklund, Lukas Vanhonnaeker, J. Marcoux
{"title":"State Immunity as a Defense to Resist the Enforcement of ICSID Awards","authors":"A. Bjorklund, Lukas Vanhonnaeker, J. Marcoux","doi":"10.1093/icsidreview/siaa055","DOIUrl":"https://doi.org/10.1093/icsidreview/siaa055","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86076017","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 : 2021-06-15DOI: 10.1093/ICSIDREVIEW/SIAA048
Julian Scheu, Petyo Nikolov
The European Court of Justice (ECJ) made a ground-breaking shift away from the current system of investor–State dispute settlement (ISDS) by rendering its judgment in the matter of Achmea v Slovak Republic. However, since March 2018, a large and ever-growing number of investment tribunals have found that the Achmea judgment does not deprive them of arbitral jurisdiction. Against this background, the aim of the present article is to analyse the effects of the Achmea judgment on the jurisdiction of tribunals to settle intra-European Union (EU) investment treaty disputes. By taking due account of the reasoning conducted by the ECJ, the scope of the Achmea jurisprudence will be clarified. It is concluded that the incompatibility of intra-EU ISDS with EU law concerns all intra-EU investment treaties, including article 26 of the Energy Charter Treaty (ECT). On this basis, we ask whether, and to what extent, the applicability of the Achmea judgment is relevant to arbitral jurisdiction. Considering the law applicable to the arbitration agreement, we conclude that International Centre for Settlement of Investment Disputes (ICSID) tribunals and those seated outside the EU remain competent to settle intra-EU investment disputes. In contrast, the Achmea judgment renders ISDS clauses contained in intra-EU investment treaties inoperable if the tribunal is seated within the EU. The article closes with an outlook that puts these conclusions into perspective by considering recent developments such as the EU Member States’ ratification of a multilateral termination treaty.
{"title":"Jurisdiction of Tribunals to Settle Intra-EU Investment Treaty Disputes","authors":"Julian Scheu, Petyo Nikolov","doi":"10.1093/ICSIDREVIEW/SIAA048","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA048","url":null,"abstract":"\u0000 The European Court of Justice (ECJ) made a ground-breaking shift away from the current system of investor–State dispute settlement (ISDS) by rendering its judgment in the matter of Achmea v Slovak Republic. However, since March 2018, a large and ever-growing number of investment tribunals have found that the Achmea judgment does not deprive them of arbitral jurisdiction. Against this background, the aim of the present article is to analyse the effects of the Achmea judgment on the jurisdiction of tribunals to settle intra-European Union (EU) investment treaty disputes. By taking due account of the reasoning conducted by the ECJ, the scope of the Achmea jurisprudence will be clarified. It is concluded that the incompatibility of intra-EU ISDS with EU law concerns all intra-EU investment treaties, including article 26 of the Energy Charter Treaty (ECT). On this basis, we ask whether, and to what extent, the applicability of the Achmea judgment is relevant to arbitral jurisdiction. Considering the law applicable to the arbitration agreement, we conclude that International Centre for Settlement of Investment Disputes (ICSID) tribunals and those seated outside the EU remain competent to settle intra-EU investment disputes. In contrast, the Achmea judgment renders ISDS clauses contained in intra-EU investment treaties inoperable if the tribunal is seated within the EU. The article closes with an outlook that puts these conclusions into perspective by considering recent developments such as the EU Member States’ ratification of a multilateral termination treaty.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41918425","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 : 2021-06-13DOI: 10.1093/ICSIDREVIEW/SIAA038
A. M. Steingruber
This article addresses the complex topic of counterclaims in investment arbitration by critically assessing and commenting Article 6 of the 2019 The Hague Resolution of the Institut de Droit International (IDI) on the ‘Equality of Parties before International Investment Tribunals’ paragraph by paragraph.
{"title":"Counterclaims: a Critical Analysis of Article 6 of the 2019 The Hague Resolution of the Institut de Droit International on the ‘Equality of Parties before International Investment Tribunals’","authors":"A. M. Steingruber","doi":"10.1093/ICSIDREVIEW/SIAA038","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA038","url":null,"abstract":"This article addresses the complex topic of counterclaims in investment arbitration by critically assessing and commenting Article 6 of the 2019 The Hague Resolution of the Institut de Droit International (IDI) on the ‘Equality of Parties before International Investment Tribunals’ paragraph by paragraph.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44336193","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 : 2021-06-07DOI: 10.1093/ICSIDREVIEW/SIAA047
Jacklyn Biggs
In the 2000s, several European states sought to increase foreign investment in their renewable energy sectors. Those governments later wound back those financial incentives. This resulted in dozens of investment disputes. One of the key issues in those disputes was whether the decision to amend or withdraw financial incentives breached investors' legitimate expectations under the fair and equitable treatment standard. This article argues that investors' legitimate expectations should operate analogously to the concept of estoppel. Therefore, if a state makes a clear commitment to induce investment (this includes commitments in legislation), and an investor reasonably relies on that commitment, then the state should not be able to renege on that commitment without generating liability for breaching the fair and equitable treatment standard.
{"title":"The Scope of Investors’ Legitimate Expectations under the FET Standard in the European Renewable Energy Cases","authors":"Jacklyn Biggs","doi":"10.1093/ICSIDREVIEW/SIAA047","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA047","url":null,"abstract":"\u0000 In the 2000s, several European states sought to increase foreign investment in their renewable energy sectors. Those governments later wound back those financial incentives. This resulted in dozens of investment disputes. One of the key issues in those disputes was whether the decision to amend or withdraw financial incentives breached investors' legitimate expectations under the fair and equitable treatment standard. This article argues that investors' legitimate expectations should operate analogously to the concept of estoppel. Therefore, if a state makes a clear commitment to induce investment (this includes commitments in legislation), and an investor reasonably relies on that commitment, then the state should not be able to renege on that commitment without generating liability for breaching the fair and equitable treatment standard.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44118556","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 : 2021-05-11DOI: 10.1093/ICSIDREVIEW/SIAB003
L. Pereira
{"title":"Economic Analysis of the Arbitrator’s Function","authors":"L. Pereira","doi":"10.1093/ICSIDREVIEW/SIAB003","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAB003","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ICSIDREVIEW/SIAB003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46956910","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 : 2021-05-11DOI: 10.1093/ICSIDREVIEW/SIAA051
Ivan Cavdarevic
{"title":"Attribution in International Law and Arbitration","authors":"Ivan Cavdarevic","doi":"10.1093/ICSIDREVIEW/SIAA051","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA051","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78926388","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 : 2021-05-11DOI: 10.1093/ICSIDREVIEW/SIAA044
A. Reuter
In its 2018 Achmea ruling, the European Court of Justice (ECJ) found intra-European Union (EU) investment arbitration incompatible with EU law, and in its 2019 opinion on the proposed Canada–EU Trade Agreement (CETA), the ECJ has set out requirements for the recognition by the EU of investor–State arbitration at large. On the other hand, in the last few years a great many tribunals (under both International Centre for the Settlement of Investment Disputes (ICSID) and non-ICSID regimes) have dealt with intra-EU investment arbitrations, most of them under the Energy Charter Treaty (ECT). None of these tribunals found the proceedings to be incompatible with EU law. The reason for this discrepancy is that the tribunals deal with investors’ rights, while the ECJ, in contrast, is concerned with intra-EU governance issues. However, individual rights are not alien to EU law. Against that background, this note is based on the established finding that investment treaties bestow private investors with individual rights under public international law. These rights need to be taken seriously: as third parties, investors can, under both public international law and EU law, draw upon these rights, irrespective of the internal EU governance rules with which the ECJ was concerned. Hence, this note2 is not meant to be a further contribution to the voluminous debate on the internal EU governance rules drawn upon by the ECJ. In contrast, it is based on the binding effect on the EU of the investors’ individual rights. Furthermore, it shows that the ECJ’s rulings do not have an adverse precedent effect on the pursuit of investors’ rights and that, in addition, the ECT meets the criteria under which the ECJ has assessed EU compatibility of investment arbitration. Last but not least, the denial by EU institutions of investors' rights under the ECT may, in itself, constitute an infringement of the ECT.
{"title":"Taking Investors’ Rights Seriously: The Achmea and CETA Rulings of the European Court of Justice do not Bar Intra-EU Investment Arbitration","authors":"A. Reuter","doi":"10.1093/ICSIDREVIEW/SIAA044","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA044","url":null,"abstract":"\u0000 In its 2018 Achmea ruling, the European Court of Justice (ECJ) found intra-European Union (EU) investment arbitration incompatible with EU law, and in its 2019 opinion on the proposed Canada–EU Trade Agreement (CETA), the ECJ has set out requirements for the recognition by the EU of investor–State arbitration at large. On the other hand, in the last few years a great many tribunals (under both International Centre for the Settlement of Investment Disputes (ICSID) and non-ICSID regimes) have dealt with intra-EU investment arbitrations, most of them under the Energy Charter Treaty (ECT). None of these tribunals found the proceedings to be incompatible with EU law.\u0000 The reason for this discrepancy is that the tribunals deal with investors’ rights, while the ECJ, in contrast, is concerned with intra-EU governance issues. However, individual rights are not alien to EU law. Against that background, this note is based on the established finding that investment treaties bestow private investors with individual rights under public international law. These rights need to be taken seriously: as third parties, investors can, under both public international law and EU law, draw upon these rights, irrespective of the internal EU governance rules with which the ECJ was concerned. Hence, this note2 is not meant to be a further contribution to the voluminous debate on the internal EU governance rules drawn upon by the ECJ. In contrast, it is based on the binding effect on the EU of the investors’ individual rights. Furthermore, it shows that the ECJ’s rulings do not have an adverse precedent effect on the pursuit of investors’ rights and that, in addition, the ECT meets the criteria under which the ECJ has assessed EU compatibility of investment arbitration. Last but not least, the denial by EU institutions of investors' rights under the ECT may, in itself, constitute an infringement of the ECT.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ICSIDREVIEW/SIAA044","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45709627","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 : 2021-04-28DOI: 10.1093/icsidreview/siaa024
Yilin Wang
{"title":"The Fight between Interpretation and Modification: A Critique of Sanum v Laos","authors":"Yilin Wang","doi":"10.1093/icsidreview/siaa024","DOIUrl":"https://doi.org/10.1093/icsidreview/siaa024","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/icsidreview/siaa024","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48351333","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}
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