Pub Date : 2021-04-26DOI: 10.1093/icsidreview/siaa054
Chitransh Vijayvergia
One of the fundamental objectives of international investment agreements (IIAs) is to protect the rights and interests of foreign investors in the territory of a contracting State. Why, then, have tribunals often exercised jurisdiction ratione personae over the claims of dual nationals against their own State? The answer lies in the silence of IIAs on the matter of dual nationals. Such agreements have failed expressly to mention dual nationals in their definitions of ‘investor’ or ‘national’, which has created lacunae that are open to interpretation. Tribunals have often fallen back on international law to fill these gaps and accurately to determine the nationality of an investor’s claims. They have taken into consideration the text of the IIAs, the text of institutional rules and the general principles of international law. The principle of ‘dominant and effective nationality’, as propounded in the Nottebohm case, has made frequent appearances in such interpretation processes. However, the application of this principle has been inconsistent over time, with different tribunals taking different stances. In this article, the author traces this varied approaches of tribunals. In doing so, he analyses the text of and the awards delivered in disputes arising out of the Algiers Declaration, the North American Free Trade Agreement (NAFTA), the United States–Mexico–Canada Agreement (USMCA), the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), the Dominican Republic–Central America Free Trade Agreement (DR-CAFTA), the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and various bilateral investment treaties (BITs). Based on this analysis, the author proposes several changes that States should consider in the future negotiation of BITs to restrict a claim by a dual national against its State of nationality.
{"title":"Dual Nationality of a Private Investor in Investment Treaty Arbitration: A Potential Barrier to the Exercise of Jurisdiction Ratione Personae?","authors":"Chitransh Vijayvergia","doi":"10.1093/icsidreview/siaa054","DOIUrl":"https://doi.org/10.1093/icsidreview/siaa054","url":null,"abstract":"\u0000 One of the fundamental objectives of international investment agreements (IIAs) is to protect the rights and interests of foreign investors in the territory of a contracting State. Why, then, have tribunals often exercised jurisdiction ratione personae over the claims of dual nationals against their own State? The answer lies in the silence of IIAs on the matter of dual nationals. Such agreements have failed expressly to mention dual nationals in their definitions of ‘investor’ or ‘national’, which has created lacunae that are open to interpretation. Tribunals have often fallen back on international law to fill these gaps and accurately to determine the nationality of an investor’s claims. They have taken into consideration the text of the IIAs, the text of institutional rules and the general principles of international law. The principle of ‘dominant and effective nationality’, as propounded in the Nottebohm case, has made frequent appearances in such interpretation processes. However, the application of this principle has been inconsistent over time, with different tribunals taking different stances. In this article, the author traces this varied approaches of tribunals. In doing so, he analyses the text of and the awards delivered in disputes arising out of the Algiers Declaration, the North American Free Trade Agreement (NAFTA), the United States–Mexico–Canada Agreement (USMCA), the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), the Dominican Republic–Central America Free Trade Agreement (DR-CAFTA), the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and various bilateral investment treaties (BITs). Based on this analysis, the author proposes several changes that States should consider in the future negotiation of BITs to restrict a claim by a dual national against its State of nationality.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80092660","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 : 2021-04-01DOI: 10.1093/ICSIDREVIEW/SIAA028
Campbell McLachlan
{"title":"Equality of Parties before International Investment Tribunals: The Institute of International Law Resolution 2019","authors":"Campbell McLachlan","doi":"10.1093/ICSIDREVIEW/SIAA028","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA028","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ICSIDREVIEW/SIAA028","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43234246","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 : 2021-03-04DOI: 10.1093/ICSIDREVIEW/SIAA017
Chiann Bao
{"title":"RSM v Saint Lucia:1With Prejudice—The Unlikely Death Knell","authors":"Chiann Bao","doi":"10.1093/ICSIDREVIEW/SIAA017","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA017","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47791248","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 : 2021-02-15DOI: 10.1093/ICSIDREVIEW/SIAA034
E. Gaillard, I. M. Penusliski
When the ICSID system was being set up, the matter of compliance with investment awards rendered against States was considered "academic". ICSID’s architects believed that as long as States would remain under an international obligation to comply with awards they would generally do so. Writing in the 2000s and early 2010s, commentators observed that States have generally complied with adverse investment awards. In the last two decades, the number of investor-State arbitrations has soared, and more and more damages awards have been rendered against States. This analysis seeks to contribute to a fact-based debate on the future of international investment law by addressing an under-examined but essential aspect of that regime, namely, compliance with investment awards. It assesses empirically the experience with investment arbitration of the thirty-two most sued States, covering approximately 70% of all cases initiated through to the end of 2019. The data examined indicates that the ICSID founders’ prognosis that compliance with investment awards would be a non-issue—framed as it was in such sweeping terms—has not held true. Whereas the majority of States have complied with adverse awards (usually after seeking annulment), the instances of non-compliance or significantly delayed compliance are important. A significant proportion of the cases where States have been ordered to pay damages have required enforcement proceedings. Instances of home State’s intervention--and inevitably re-politicization of the dispute--have resurged. There is thus a gap between the regime’s authority and effectiveness that needs to be addressed. Still, and regardless of its imperfections, it could be said that the modern investment dispute resolution system continues to be revolutionary, in particular when compared to the antecedent regime, which rested almost entirely on the inclination of the home State to espouse its nationals’ claims.
{"title":"State Compliance with Investment Awards","authors":"E. Gaillard, I. M. Penusliski","doi":"10.1093/ICSIDREVIEW/SIAA034","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA034","url":null,"abstract":"\u0000 When the ICSID system was being set up, the matter of compliance with investment awards rendered against States was considered \"academic\". ICSID’s architects believed that as long as States would remain under an international obligation to comply with awards they would generally do so. Writing in the 2000s and early 2010s, commentators observed that States have generally complied with adverse investment awards. In the last two decades, the number of investor-State arbitrations has soared, and more and more damages awards have been rendered against States. This analysis seeks to contribute to a fact-based debate on the future of international investment law by addressing an under-examined but essential aspect of that regime, namely, compliance with investment awards. It assesses empirically the experience with investment arbitration of the thirty-two most sued States, covering approximately 70% of all cases initiated through to the end of 2019. The data examined indicates that the ICSID founders’ prognosis that compliance with investment awards would be a non-issue—framed as it was in such sweeping terms—has not held true. Whereas the majority of States have complied with adverse awards (usually after seeking annulment), the instances of non-compliance or significantly delayed compliance are important. A significant proportion of the cases where States have been ordered to pay damages have required enforcement proceedings. Instances of home State’s intervention--and inevitably re-politicization of the dispute--have resurged. There is thus a gap between the regime’s authority and effectiveness that needs to be addressed. Still, and regardless of its imperfections, it could be said that the modern investment dispute resolution system continues to be revolutionary, in particular when compared to the antecedent regime, which rested almost entirely on the inclination of the home State to espouse its nationals’ claims.","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86314726","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 : 2021-01-04DOI: 10.1093/ICSIDREVIEW/SIAA049
Y. Dautaj
{"title":"Environmental Interests in Investment Arbitration: Challenges and Directions and Water Services Disputes in International Arbitration: Reconsidering the Nexus of Investment Protection, Environment, and Human Rights","authors":"Y. Dautaj","doi":"10.1093/ICSIDREVIEW/SIAA049","DOIUrl":"https://doi.org/10.1093/ICSIDREVIEW/SIAA049","url":null,"abstract":"","PeriodicalId":44986,"journal":{"name":"Icsid Review-Foreign Investment Law Journal","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2021-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ICSIDREVIEW/SIAA049","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48198340","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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