EU investment agreements and the search for a new balance: A paradigm shift from laissez-faire liberalism toward embedded liberalism?

In July 2012, in an internal document, the European Commission’s Directorate-General for Trade suggested that future EU investment agreements (EUIAs) should incorporate regulatory flexibility in the same way in which EU free trade agreements (FTAs) safeguard parties’ policy space. Since it is expected that a number of treaties on the EU’s negotiating agenda will be concluded in the near future, and given the policy shift that has already taken place in Canada and the US, it is time to start thinking about a new balance in a move away from investment treaties’ traditional laissez-faire liberalism toward WTO law’s embedded liberalism, a model whereby liberalization is embedded within a wider framework that enables public regulation in the interest of domestic stability

A stronger role for the European Parliament in the design of the EU’s investment policy as a legitimacy safeguard

Since the Treaty of Lisbon, the European Commission has designed an innovative investment policy, leaving in the shadows another powerful actor. And yet, in the post-Lisbon era, the European Parliament enjoys extensive powers in the formulation of the EU’s investment policy

The nationality of the international judge: Policy options for the Multilateral Investment Court

The nationality of judges on the international bench can impact their decisions by making them partial to their home countries. In light of the efforts to establish a Multilateral Investment Court, this Perspective considers policy options in relation to the nationality of judges, including the institution of ad hoc judges

Why public policy exceptions have not delivered and how to make them more effective

The interpretation of public policy exceptions is proving to be one of the biggest conundrums of international investment law and makes the application of international investment treaties unpredictable. This Perspective explains why public policy exceptions have not reached their full potential and provides guidance on making them more effective

Non-Adjudicatory State-State Mechanisms in Investment Dispute Prevention and Dispute Settlement: Joint Interpretations, Filters and Focal Points

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

国际法官的国籍：多边投资法庭的政策选择

The nationality of judges on the international bench can impact their decisions by making them partial to their home countries. In light of the efforts to establish a Multilateral Investment Court, this Perspective considers policy options in relation to the nationality of judges, including the institution of ad hoc judges

作为合法性保障的欧洲议会应当在欧盟投资政策的制定过程中发挥更大的作用

Since the Treaty of Lisbon, the European Commission has designed an innovative investment policy, leaving in the shadows another powerful actor. And yet, in the post-Lisbon era, the European Parliament enjoys extensive powers in the formulation of the EU’s investment policy

Facilitating Access to Investor-State Dispute Settlement for Small and Medium-Sized Enterprises: Tracing the Path Forward”

The costs of accessing investor-state dispute settlement (ISDS) are notoriously high. International investment treaties and investment dispute settlement in particular have been primarily designed with large investors in mind – those with the means to access an international tribunal –, while small and medium-sized enterprises (SMEs) and individual or vulnerable investors can face significant barriers to accessing ISDS. This article is the first in legal scholarship to identify and evaluate the diverse opportunities that exist for the establishment and operation of mechanisms allowing SMEs better and easier access to ISDS. Drawing on the wealth of comparative experience from the functioning of existing dispute settlement assistance mechanisms in international courts and tribunals, the article argues that legal assistance is a more efficient and cost-effective tool than financial assistance and presents concrete proposals for the funding and operation of such a mechanism for SMEs. Finally, the article examines the political cost involved in facilitating SMEs’ access to ISDS, in light of the fact that some states have been increasingly wary of ISDS, but it weighs this challenge against the imperative of ensuring effective access to justic

International Investment Law and ISDS: Mapping Contemporary Latin America

In recent years, the negotiation and conclusion of international investment agreements (IIAs) in Latin America has gone hand-in-hand with a rethinking of investment standards and the elaboration of new IIA models. This is evident, among others, in Brazil’s cooperation and facilitation investment agreements (CFIAs), the continuing negotiations on the creation of a regional dispute settlement centre under the aegis of the Union of South American Nations (UNASUR), some recently-released investment policy documents and amendments to national arbitration laws for disputes involving the State. The article highlights such developments emphasising the broad spectrum of local approaches that vary from convergence to divergence in order to interpret Latin American countries’ position in the existing investor-State dispute settlement (ISDS) system and reveal the role that the sub-continent can play in the future design of ISDS

Equity in Global Health Law - Policy Brief

Equity has been sorely lacking in pandemic preparedness and response, and COVID-19 is but the latest example (O’Cuinn and Switzer, 2019; Rourke, 2019). The response to COVID-19 was characterised by nationalism, inequity in access to diagnostics, vaccines, therapeutics and personal protective equipment (PPE) between the Global North and the Global South, as well as discriminatory, and in some instances racist, border closures chiefly impacting low- and middle-income countries. In response to the widespread inequity witnessed during the COVID-19 pandemic, Member States of the World Health Organisation (WHO) are currently negotiating a new international legal instrument - the Pandemic Treaty - intended to prevent pandemics and mitigate associated inequalities such as vaccine access, and improve compliance with international law during pandemic events. From the initial proposal for the Treaty, through the many rounds of discussions that have occurred to date, it is clear that the new instrument is intended to be grounded in equity, with equity positioned as both an objective and as an operational output (Wenham, Eccleston- Turner & Voss, 2022). However, while equity is recognised as a general principle of international law, it does not have a precise and defined meaning. From the start of negotiations, it was unclear what an instrument ‘grounded’ in equity should look like, what the principle of equity actually means in this context, and how this principle can translate into meaningful obligations within international law more generally, as well as pandemic preparedness and global health governance specifically. In an attempt to answer these questions, we convened - with the assistance of funding from the Scottish Council for Global Affairs and the ESRC IAA Policy Impact Fund - a workshop at King’s College, London at which we gathered together experts on equity from different disciplinary backgrounds in an attempt to understand and conceptualize equity as a legal concept, charting its history, development and application within both domestic and international law. In the following short discussion, we distill some of the lessons at this workshop from both national law as well as other international arenas, before offering suggestions on how this somewhat opaque concept might be effectively operationalised within the Pandemic Treaty. The aim of this discussion is therefore not to engage in a lengthy, academic literature review of the different conceptions of equity found in academic texts - of which there is an abundance of relevant literature - but rather to offer practical insights to the operationalisation of equity to the Pandemic Treaty. What we find is that there is no ‘one’ way to do equity or for an international agreement to be equitable. Our discussions found that equity must be more than an abstract buzzword - simply inserting the word equity into a legal text does not achieve equity. However, international law offers a number of lessons for responding to instances of inequity arising in the absence of a perfect, overarching functional definition of equity