The Impact of Investor-State Dispute Settlement on Statess IP Legal Regime: A Comparative Study on International Investment Agreements

2015 ◽  
Author(s):  
June Eunyeong Park
Keyword(s):  
Comparative Study ◽  
Dispute Settlement ◽  
International Investment ◽  
Legal Regime ◽  
International Investment Agreements ◽  
The Impact ◽  
Investment Agreements

The Proliferation of Joint Interpretation Clauses in New International Investment Agreements: A Mixed Blessing?

2020 ◽  
Author(s):  
Loris Marotti
Keyword(s):  
Dispute Settlement ◽  
General Rule ◽  
International Investment ◽  
Vienna Convention ◽  
Control Mechanisms ◽  
International Investment Agreements ◽  
Joint Interpretation ◽  
Dispute Settlement System ◽  
The Impact ◽  
Investment Agreements

Abstract Joint interpretation clauses (JICs) are among the most controversial control mechanisms on the interpretative powers of tribunals brought by the current wave of reform of the investor–State dispute settlement system (ISDS). Literally proliferating in the new generation of international investment agreements (IIAs), these clauses give contracting States the power to issue joint interpretations (JIs) that are expressly recognized as binding upon dispute settlement bodies and may even be issued in relation to matters pending before such bodies. This article discusses several issues raised by the ‘authentic interpretation’ enhanced by JICs. In the first part, JICs are assessed against the background of the general rule on treaty interpretation, including, in particular, subsequent agreements under article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties. The second part of the article addresses the tensions between judicial bodies and treaty parties sharing the interpretative authority over IIAs and investigates whether there are any limitations on the interpretative powers of States under JICs. The third part is devoted to the impact of JIs on the proper conduct of investment arbitration proceedings, considering the participation of private actors (the investors) in the proceedings and the ‘dual role’ of States (as treaty parties and respondents) in this field. The concluding part of the article speculates whether a greater institutionalization of the international investment regime is likely to prompt more frequent forms of judicial reactions against ‘ill-perceived’ JIs and fuel the tension between States and dispute settlement bodies.

Procedural Aspects of Investor-State Dispute Settlement: The Emergence of a European Approach?

2014 ◽  
Vol 15 (3-4) ◽  
pp. 585-611 ◽  
Author(s):  
Christian J. Tams
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
International Investment ◽  
Investment Policy ◽  
Public Consultation ◽  
The European Union ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
The Impact ◽  
Investment Agreements

Chapters on investor-State dispute settlement (isds) are among the controversial sections of international investment agreements. The chapter situates the evolving approach of the European Union (eu) to isds, and it does so in two steps: (i) It assesses the impact of the main eu actors on the formation of the eu’s investment policy and comments on the current backlash against investment arbitration, which has led the European Commission to engage in a public consultation. (ii) Against that background, the article provides a roadmap through the details of isds draft provisions put forward by eu actors. Its focus is on procedural aspects of dispute resolution (notafbly attempts to curtail options for parallel proceedings and certain types of claims) and on the question of consistency (which continues to prompt debate among treaty-makers).

Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?

2021 ◽  
pp. 1-26
Author(s):  
CÉLINE LÉVESQUE
Keyword(s):  
Working Group ◽  
Dispute Settlement ◽  
Code Of Conduct ◽  
International Investment ◽  
Group Iii ◽  
Investment Promotion ◽  
Long Run ◽  
International Investment Agreements ◽  
The Subject ◽  
Investment Agreements

Abstract The practice of arbitrators and counsel in investor-state dispute settlement (ISDS) cases simultaneously playing both roles — known as “double-hatting” — has been the subject of much controversy in recent debates on ISDS reform, notably, at the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III where a Draft Code of Conduct for Adjudicators in International Investment Disputes is under discussion. While Canada has been less than consistent in its approaches to ISDS in recent international investment agreements (IIAs), its position against double-hatting has been rather constant. This article explores whether this stance reveals a commitment on the part of Canada towards increased judicialization of ISDS or reflects a “flavour of the month” reform likely to change with differing IIAs and negotiating partners. Analysis of Canada’s recent IIA practices, including its model Foreign Investment Promotion and Protection Agreement, released in May 2021, and the positions it has taken at UNCITRAL’s Working Group III, lead the author to conclude that Canada appears committed to increased judicialization of ISDS in the long run.

International Investment Agreements and National Governance: The Case of Egypt

2020 ◽  
pp. 1-28
Author(s):  
Reem Anwar Ahmed Raslan
Keyword(s):  
International Investment ◽  
International Standards ◽  
Third Party ◽  
Legal Regime ◽  
Policy Makers ◽  
Legal Obligations ◽  
International Investment Agreements ◽  
Regulatory Powers ◽  
Domestic Reform ◽  
Investment Agreements

Abstract The current international investment legal regime results from the interplay between international investment norms, embodied mainly in international investment agreements (IIAs), and the legal regime of the host country. This article will outline two major impacts IIAs can exert on national governance in Egypt: first, the domestic reform impact that refers to domestically initiated reform measures taken to compliment IIAs objectives, such as establishment of Economic Courts as well as limitation of third-party challenge of Investor–State contracts; and, second, the Supra-National Impact which involves situations where IIAs constrain the regulatory powers of the host state usually by imposing legal obligations that go beyond international standards, such as alternative dispute resolution (ADR) mechanisms as well as trade-related investment measures-plus (TRIMS-Plus) and trade-related aspects of intellectual property rights-plus (TRIPS-Plus) provisions. Understanding the profound effects of IIAs on national governance will beneficially inform policy makers when concluding IIAs.

Investment Protection in Disputed Maritime Areas

2018 ◽  
Vol 19 (5-6) ◽  
pp. 828-859
Author(s):  
Peter Tzeng
Keyword(s):  
Dispute Settlement ◽  
Political Risk ◽  
International Investment ◽  
Joint Development ◽  
Investment Protection ◽  
International Investment Agreements ◽  
Protection Mechanisms ◽  
United Nations Convention ◽  
Risk Insurance ◽  
Investment Agreements

Abstract Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.

Dispute Settlement in EU International Investment Agreements with Third States: Three Salient Problems

2014 ◽  
Vol 15 (3-4) ◽  
pp. 551-569 ◽  
Author(s):  
Markus Burgstaller
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Preliminary Ruling ◽  
International Investment Agreements ◽  
Investment Agreements

The eu institutions are committed to include investor-State arbitration clauses in eu iias with third States. However, there are at least three unresolved problems in doing so. First, the eu is not, and is unlikely to become, a Contracting Party to the icsid Convention. While this deficiency may be remedied by replicating relevant provisions of the icsid Convention, eu investors cannot benefit from icsid’s institutional clout which could facilitate enforcement of awards. Secondly, there may be problems from an eu law perspective. Arguably, the eu could only include investor-State arbitration clauses in eu iias with third States following a change in eu primary law such that investment tribunals could request a preliminary ruling from the cjeu in accordance with Article 267 tfeu. Thirdly, to date there appears to be no agreement within the eu on the question who will be the proper respondent in an arbitration.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

scholarly journals Foreign Investors vs. National Tax Measures: Assessing the Role of International Investment Agreements

2021 ◽  
pp. 149-169
Author(s):  
Julien Chaisse ◽  
Jamieson Kirkwood
Keyword(s):  
International Investment ◽  
Foreign Investors ◽  
International Investment Agreements ◽  
Key Characteristics ◽  
Recent Trends ◽  
National Tax ◽  
Definition Of ◽  
The Impact ◽  
Investment Agreements

AbstractThis chapter focuses on the impact of the international law of foreign investment on tax issues with a view to assessing the interactions between the two regimes and identifying potential signs of convergence. In particular, this chapter focuses on the operation of International Investment Agreements (IIAs) and assesses the role of IIAs from the perspective of foreign investors vis-à-vis National Tax Measures (NTMs). Part I of this chapter provides an understanding of the convergence between investment law and tax issues. This aids in an understanding of the key characteristics of IIAs (such as the definition of investment and the use of specific tax exceptions) and the relationship between currently existing IIAs and tax disputes. Part II analyzes, both quantitatively and qualitatively, the recent trends of tax disputes in investment arbitration. Part III assesses how tax can be seen as the last barrier to cross border investment. Part IV concludes.

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