The Principle of Clean Hands in International Investment Arbitration: What is the Extent of Investment Protection in Investor-State Disputes?

2021 ◽  
Author(s):  
Agata Zwolankiewicz
Keyword(s):  
International Investment ◽  
Investment Protection ◽  
Investment Arbitration

Das Menschenrecht auf Wasser im internationalen Investitionsrecht

2021 ◽  
Author(s):  
Lara Maria Panosch
Keyword(s):  
Human Rights ◽  
Corporate Social Responsibility ◽  
Building Blocks ◽  
International Investment ◽  
Human Right ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Investment Law ◽  
Corporate Social

International investment law and the law of human rights currently show an unresolved relationship in the practice of international arbitration. The extent to which a human right to water can be accommodated within the framework of investment protection law has been considered in detail in this thesis. The possible solutions identified in the course of this research offer the potential to adequately take into account a human right to water in investment arbitration, both through non-contractual integration by means of a systemic interpretation along the established guidelines and through the contractual inclusion of explicitly formulated building blocks on Corporate Social Responsibility.

Metanarratives as a Trap: Critique of Investor–State Arbitration Reform

2020 ◽  
Vol 23 (4) ◽  
pp. 949-971
Author(s):  
Ksenia Polonskaya
Keyword(s):  
International Trade ◽  
United Nations ◽  
International Investment ◽  
Investment Protection ◽  
Trade Law ◽  
International Trade Law ◽  
Procedural Approach ◽  
Investment Arbitration ◽  
The United Nations ◽  
Critical Conversation

ABSTRACT The ongoing reform of investment arbitration at the United Nations Commission on International Trade Law can have a lasting impact on international investment protection for the decades ahead. This paper examines the current discussions at the United Nations Commission on International Trade Law to explain why the current focus on reforming the procedural aspects of the system is too narrow. As a result of such a narrow approach, the reform risks to miss an opportunity to address the global challenges, e.g. climate change. In advancing its critique of the ongoing reform, the paper adopts the lens of metanarrative by Jean-François Lyotard. By relying on Lyotard, this paper cautions that such values as feasibility and efficiency in conducting the reform should not obscure the need for a critical conversation on the purpose of the reform, which is to ensure the legitimacy of investment arbitration in the future. As this paper argues, a current procedural approach to the reform cannot meaningfully contribute to this objective.

Challenges to the Assessment of Damages Claims Involving Crypto-Assets in Investment Arbitration

Global Jurist ◽  
2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Aveek Chakravarty
Keyword(s):  
International Law ◽  
International Investment ◽  
Foreign Investments ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Asset Classes ◽  
Distinct Features

AbstractThis article addresses the particular challenges involved in valuing various types of crypto-assets as investments under treaty-based investment arbitration. The interaction of the international investment protection regime with crypto-investments has largely remained un-examined, even though increasing amounts of foreign investments have flown into the development of crypto-assets its related markets. The existing investment treaty regime is set to face significant challenges in grappling with crypto-assets as investments due to several distinct features that differentiate them from traditional asset classes. This issue is explored further in the article from the perspective of the principles governing damages under international law.

Part IV Law and Applicable Principles, 17 Dispute Resolution

2017 ◽  
Author(s):  
Burnett Henry G ◽  
Bret Louis-Alexis
Keyword(s):  
Dispute Resolution ◽  
International Investment ◽  
International Agreements ◽  
Commercial Arbitration ◽  
Investment Protection ◽  
Arbitration Clause ◽  
Investment Arbitration ◽  
Domestic Legislation ◽  
Commercial Disputes ◽  
The Way

This chapter begins with a comparison of contract and investment disputes. From an arbitration standpoint, contract-based disputes are predominately commercial disputes submitted to arbitration by virtue of an arbitration clause. In the absence of an arbitration clause, disputing parties might resort to specific agreements or submission agreements in order to find recourse to arbitration. International investment arbitration differs from commercial arbitration in the way the parties express their consent. It is often based on States’ domestic legislation or international agreements between two or more States providing for protection of each contracting State’s investors in their respective territories. The remainder of the chapter discusses the importance of investment protection and investor-State arbitration in international mining disputes.

Human Rights and International Investment Arbitration

2020 ◽  
pp. 149-185
Author(s):  
Ursula Kriebaum
Keyword(s):  
Human Rights ◽  
International Investment ◽  
Human Rights Law ◽  
Academic World ◽  
Applicable Law ◽  
Host State ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Rights Issues

This chapter assesses the role of human rights in international investment arbitration. The treatment of human rights issues by investment tribunals has received increased attention in recent years, especially from the academic world. This is particularly so because tribunals have adopted varying approaches when confronted with human rights-based arguments. Some have responded in a negative way, declining to exercise jurisdiction when human rights were concerned. Others declined to discuss human rights arguments, noting that investment protection provisions were more favourable to investors than human rights law. Others applied human rights law where it composed part of the applicable law by virtue of the host State being a party to a human rights treaty. And some, when interpreting investment protection treaties, drew inspiration from approaches used by human rights courts, despite the decisive human rights treaty not being in force in the host state in the case at hand. The chapter then reflects upon the requirements for the application of human rights law in investment disputes.

Jurisdiction ratione temporis in International Investment Arbitration

2017 ◽  
Vol 16 (1) ◽  
pp. 139-158
Author(s):  
Andrea Gattini
Keyword(s):  
International Law ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Public International Law ◽  
Provisional Application ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Investment Law ◽  
The Law

Issues concerning the temporal scope of jurisdiction of international investment arbitration tribunals are attracting increased attention due to recent events, such as the denunciation of the icsid Convention by some states, the denunciation of bilateral investment treaties from which the tribunals draw their jurisdiction, or the provisional application of other treaties concerning investment protection. The solutions offered by most arbitral tribunals are in line with international customary rules on the law of treaties, a point which deserves attention as further proof of the cohesiveness of international investment law with public international law.

Investment Arbitration in East Asia and the Pacific

2015 ◽  
Vol 16 (5-6) ◽  
pp. 800-842 ◽  
Author(s):  
Claudia T. Salomon ◽  
Sandra Friedrich
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Investment Protection ◽  
The Past ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
The Pacific ◽  
Investment Patterns ◽  
Investment Agreements ◽  
Trade And Investment

Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region’s continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IIAs. On the heels of this development, the region has seen a rising number of investment arbitrations. As of December 2014, at least 49 investment arbitrations have been brought against EAP countries and/or by EAP investors. Most recently, the number of new cases has picked up pace significantly, making the region a veritable ‘hot bed’ of investment arbitration.

PROTECTING ITALIAN INVESTMENTS IN LIBYA’S CHANGING ENVIRONMENT

2014 ◽  
Vol 23 (1) ◽  
pp. 147-172 ◽  
Author(s):  
Ferdinando Franceschelli
Keyword(s):  
Foreign Direct Investment ◽  
International Law ◽  
Armed Conflict ◽  
Direct Investment ◽  
International Investment ◽  
Trading Partner ◽  
Investment Protection ◽  
Investment Arbitration ◽  
The Relationship ◽  
Extensive Damage

Italy is both the main trading partner and the State that has the most sizeable foreign direct investment interests in Libya. However, the outbreak of armed conflict in Libya in 2011 resulted in extensive damage to Italian investors. In order to obtain proper redress Italian investors may seek to rely upon investment protection provisions contained in treaties previously concluded between these two States, notably the BIT of 2000 and the Treaty of Benghazi of 2008. Crucially, however, the outbreak of the armed conflict and the subsequent regime change that took place following the Gaddafi’s removal from power raise doubts about the effectiveness of such treaties. This article firstly reviews both the relevant rules of international law and the investment treaties in force between Italy and Libya. Then, it examines the relationship between Italy and Libya during and after the events of 2011 and comes to the conclusion that such treaties are still effective and as such Italian investors may invoke the provisions contained therein, including those envisaging resort to international investment arbitration.

A New Approach to the Law of Foreign Investments

2016 ◽  
Author(s):  
Vidal-León Christian
Keyword(s):  
Policy Decision ◽  
International Investment ◽  
Inclusive Process ◽  
Foreign Investments ◽  
New Approach ◽  
The Public ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Domestic Investments ◽  
The Government

This chapter analyzes South Africa's decision to terminate its investment treaties and the underlying objectives of South Africa's new investment regime, namely: (1) reinforcing the ‘sovereign right to regulate in the public interest’; (2) doing away with international investment arbitration; and (3) placing foreign and domestic investments on an equal footing. It examines the standards of investment protection not explicitly laid down in the Promotion and Protection of Investment Bill 2013 and inquires whether these standards are otherwise protected by the constitution or other laws. The chapter concludes that whilst South Africa's policy decision on its investment protection regime is open to debate, the government has followed a comprehensive, transparent, and inclusive process, in which relevant stakeholders have been heard and with which they have engaged.

The New Gold Standard? Empirically Situating the Trans-Pacific Partnership in the Investment Treaty Universe

2016 ◽  
pp. 339-373 ◽  
Author(s):  
Wolfgang Alschner ◽  
Dmitriy Skougarevskiy
Keyword(s):  
High Standard ◽  
Trade Agreement ◽  
International Investment ◽  
Legal Analysis ◽  
Investment Protection ◽  
Brics Countries ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Agreements

The Trans-Pacific Partnership (TPP) has been labeled a ‘new, high-standard trade agreement’. But just how ‘new’ and ‘high’ are the standards it sets? To answer that question we combine traditional legal analysis with computational text comparisons situating the TPP in the universe of international investment agreements (IIAs). We find that the TPP investment chapter offers few truly novel features — 81% of its text is taken from prior American treaties. Compared to the majority of IIAs, however, the TPP goes beyond existing practice: it sets high levels of investment protection, explicitly safeguards host state sovereignty and establishes a sophisticated investment arbitration architecture. Nevertheless, the TPP is unlikely to revolutionize the IIA universe. Its innovations are open to circumvention given that older treaties remain in force parallel to the TPP. Moreover, as disagreement persists with Europe and BRICS countries, the TPP is unlikely to serve as a template for future multilateralization.

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