This open access book focuses on public actors with a role in the settlement of investment disputes. Traditional studies on actors in international investment law have tended to concentrate on ...arbitrators, claimant investors and respondent states. Yet this focus on the “principal” players in investment dispute settlement has allowed a number of other seminal actors to be neglected. This book seeks to redress this imbalance by turning the spotlight on the latter. From the investor’s home state to domestic courts, from sub-national governments to international organisations, and from political risk insurance agencies to legal defence teams in national ministries, the book critically reviews these overlooked public actors in international investment law.
With multilateral negotiations to reform investor-state dispute settlement (ISDS) now underway, it is legitimate to wonder about the outcome. Many seem to hope for a single, global reform, but that ...may be unrealistic in the near future. Indeed, the article by Sergio Puig and Gregory Shaffer and the essay by Anthea Roberts both suggest that states are pursuing a wide range of changes to the current system, some of which are incompatible with one another. A number of states prefer investment arbitration. Others favor an investment court. Still others reject international dispute settlement altogether. In this essay, I identify a collection of these options and argue that their number and variety, combined with the intensity of state preferences on the matter of ISDS reform, are likely to preclude a multilateral solution for the foreseeable future and lead to continued fragmentation.
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The rules and regulations of the International Centre for Settlement of Investment Disputes (ICSID) have evolved several times over their almost sixty years of existence. This article examines their ...most recent evolution, that is, the amendments to the ICSID rules and regulations of 2022, which constitute the most extensive revision to date. The article takes stock of the amendments, in particular those relating to arbitration and conciliation governed by the ICSID Convention and by the ICSID Additional Facility, and it also discusses the new Mediation Rules, which were adopted for the first time in 2022. The contribution further considers amendments to ICSID’s Administrative and Financial Regulations and the Institution Rules. The revision has the effect of modernizing ICSID’s rules and regulations and addresses some concerns that have been expressed by states about investor-state dispute settlement (ISDS). Overall, the article concludes with a positive assessment of the amendments, which will no doubt improve the efficiency of ICSID-administered proceedings and ISDS more broadly.
Les règlements du Centre international pour le règlement des différends relatifs aux investissements (CIRDI) ont évolué à plusieurs reprises au cours de leurs presque soixante ans d’existence. Cet article se penche sur l’évolution la plus récente, à savoir les amendements des règlements du CIRDI de 2022, qui constituent la révision la plus approfondie. L’article dresse un bilan de ces amendements, notamment ceux qui concernent l’arbitrage et la conciliation régis par la Convention CIRDI et par le Mécanisme supplémentaire du CIRDI, et il traite par ailleurs du nouveau Règlement de médiation, qui a été adopté pour la première fois en 2022. L’exposé s’intéresse également aux amendements du Règlement administratif et financier du CIRDI et du Règlement d’introduction des instances. La révision modernise les règlements et répond à certaines préoccupations exprimées par les États au sujet du règlement des différends entre investisseurs et États (RDIE). Dans l’ensemble, l’article conclut par une appréciation positive des amendements, qui ont sans doute le potentiel d’améliorer l’efficacité des procédures administrées par le CIRDI et du RDIE de manière plus large.
The habitual description of the Latin American take on investment arbitration as one of hostility fails to capture the complexity and fine nuances of the relationship between Latin America and the ...investor-state dispute resolution mechanism. The article reconsiders the notion of hostility by canvassing the historical context of Latin American investment arbitration, and evaluating some particular topics that have surged in recent years. These include the particularities of compliance and enforcement in relation to awards delivered against Argentina and Ecuador, negotiations on the creation of a regional arbitration center under the aegis of UNASUR, and considerations of the public interest in arbitrations involving Latin American states. In exploring these topics, the article argues that there is no single Latin American approach to investment arbitration and that, overall, the region's perception of dispute settlement should not be considered as particularly hostile to it.
For about half a century, the European investment treaty model has been associated with European Union (EU) member states' bilateral investment treaty practice, often referred to as their 'best ...practices'. Member state bilateral investment treaties, which are liberal instruments strongly protective of investor interests, have remained relatively unchanged over the years, in contrast with their North American counterparts, which have come to represent a new type of investment treaty, cognizant for the first time of the contracting parties' right to regulate. With the entry into force of the Treaty of Lisbon and the exercise of the EU's new competence over the conclusion of treaties covering foreign direct investment, Europe marks its distances with the old approach of the member states and appears eager to set its own 'model'. While broadly in harmony with the new generation of North American investment treaties, the nascent EU policy aims to improve international investment law in innovative ways, targeting both substantive and procedural protections, and leading to a yet newer generation of international investment treaties. The present article explores this new EU standard, which is set to change the face of international investment law as we know it.
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Although dissents are not generally encouraged in international arbitration, they are a reality of investment treaty disputes. About one in five cases includes at least one separate or dissenting ...opinion. The ICSID Convention is rare among investment arbitration rules to expressly recognise the right of the arbitrator to attach his or her personal opinion to the award. Other investment arbitration rules are silent on the topic. And yet dissenting opinions are an established feature of several international courts and tribunals and their role is often viewed more benevolently than in investment arbitration. The article explores the perceived advantages and disadvantages of dissents as identified in different legal settings, including in public international courts and municipal legal systems, and critically applies them to investment arbitration. Normatively, it expects that dissents function in a broadly similar manner in investment arbitration and in other public international courts and tribunals. But it also recognises that this is nuanced by particularities of context and notably the terms of appointment of the adjudicator.
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This paper reviews the relationship between international investment agreements (IIAs) and foreign direct investment (FDI). It is organised in two parts. The first part explores the generic structure ...of IIAs and highlights the components that are particularly relevant to FDI. It then gives an overview of the specific content of investment treaties using a representative treaty sample over the period 1980–2020. The second part is devoted to surveying theoretical and empirical work on the impact of IIAs on FDI, while highlighting issues with the measurement of FDI, missing FDI data and effect identification due to endogeneity problems. A key difference from earlier surveys is that this article differentiates between IIAs depending on their content and takes this differentiation into account in the measurement of IIAs and their effects on FDI.
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FZAB, GIS, IJS, IZUM, KILJ, NLZOH, NUK, ODKLJ, OILJ, PILJ, SAZU, SBCE, SBMB, UL, UM, UPUK
The last 30 years in the history of international investment law witnessed the emergence of investor-state dispute settlement (ISDS) as the definitive method for the resolution of investment ...disputes, and the expanding role of the investor in the same. Investment dispute settlement has become largely synonymous with a system that involves an investor, often private entity, in international arbitration against its host state. States, in this same setting, are relegated to the role of respondent. But despite the predominant role of the investor, some mechanisms involving both states (host state and home state of the investor) do exist. Some of these mechanisms, such as state-state dispute settlement and binding interpretations, have been used for years. Others, such as national contact points or ombudsmen, are newer. As investment law enters a new era of reflection with the functioning of the current ISDS machinery at its centre, some of the efforts at reforming international investment law focus on enhancing the role of the state in investment dispute settlement and add to the popularity of some of these mechanisms. The article critically explores three ‘soft’ non-adjudicatory approaches to the prevention or resolution of investment disputes that belong to the sphere of state-to-state procedures and have gained currency in recent years: joint interpretive statements, including subsequent agreement or practice under general public international law and clarifications through diplomatic notes and periodic review of treaty content; filter mechanisms; and focal points or ombudsmen.
The relationship between international investment law and world cultural heritage is often explored from the prism of their professed mutual incompatibility: the former’s object is the protection of ...economic interests and the latter’s the preservation of world cultural heritage. The two often clash. Investment rights, endowed with robust enforcement mechanisms, typically prevail. However, a comparative reading of the two systems’ international dispute settlement mechanisms reveals that a more constructive approach to their study is also possible: cross-fertilization and the drawing of lessons from their respective functioning can improve the international resolution of disputes for both. The article considers the international legal framework of the two systems and the nature of disputes in international investment law and in international cultural heritage law. It then focuses on their respective dispute resolution mechanisms, their advantages and disadvantages, and canvasses the appropriateness of a broader use of extra-‘judicial’ or alternative dispute resolution means in investment law, and the desirability of access to dedicated international fora and stronger enforcement rules in international cultural heritage law.
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