Counterclaims in investor-state arbitration

This paper provides a comprehensive analysis of the legal regime governing counterclaims in investor-State disputes. It challenges the frequent presumption that the right to assert counterclaims is hindered by the fact that investment treaties impose no obligations on foreign investors and only protect their rights. The paper demonstrates that the right to assert counterclaims is a procedural right, and subject matter jurisdiction over counterclaims depends on whether the investor has breached obligations found in applicable law. The paper shows that foreign investors’ substantive obligations can be found in sources of international law other than investment treaties. The paper also highlights the difficulties of asserting counterclaims in non-commercial areas such as human rights and environmental protection. Finally, it also shows that tribunals may pierce the corporate veil of foreign investors in the context of counterclaims

Transparency in investor-state arbitration: the way forward

The push for transparency in investor-State arbitration is gaining momentum. In July 2013 the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. (1) In December 2014 the General Assembly adopted the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention on Transparency), (2) providing a streamlined mechanism for States to adopt the Rules on Transparency. These developments are part of a welcomed trend towards transparency in investor-State page "49" arbitration. (3) This article explains why transparency of investor-State arbitration is so important, why the Rules on Transparency should be widely adopted, and how the Mauritius Convention on Transparency can make that happen

Developing Human Right Norms for Investor-State Arbitration: The Needed Panacea for Environmental Injustice?

The dissatisfaction of States and some non-State actors with investor-State arbitration has deepened over the years. This has resulted in agitations for the reform of investor-State dispute settlement. Part of the reform agenda is the need for international investment tribunals to be required to consider human right norms, in appropriate cases, in the determination of arbitration matters before them. This is because, as good as the idea of protecting foreign investments is, if it is not put in its right perspective, it may lead to good government policies and the human rights of indigenes of host communities being sacrificed on the ‘altar’ of investment protection. Thus, this work aims at contributing to the ongoing debate on the need for international investment tribunals to always take public interest into account when deciding disputes before them. In that regard, this work examines the connection between human rights and investor-State arbitration, with particular focus on how these evolving human right norms would produce the needed panacea for environmental injustice. Although the ongoing agitations for reform transcend investor-State arbitration, this work in limited to discussing the specific issue of the need for investor-State arbitration tribunals to be required to give adequate consideration to human right norms in the determination of the matters that come before them. In this work, we used qualitative methodology based on doctrinal approach. The research design used is content analysis, which helps in describing the connection between human rights and investor-State arbitration as well as the concept of developing human right norms in investor-State arbitration. Keywords: Environmental injustice, Human right norms, Investment, Investor-State arbitration, Public interest DOI: 10.7176/JLPG/111-06 Publication date:July 31st 202

In defense of bilateral investment treaties

The exclusion of investor-state arbitration from the TTIP agreement would represent a regressive development in international investment law that is to be resisted rather than furthered. The key contentions advanced by critics of investor-state arbitration are exaggerated, and reform efforts should instead focus on its shortcomings

Comments on the European Commission’s Approach to Investor-State Arbitration in TTIP and CETA

The paper provides a detailed response to the European Commission\u27s proposed approach to investor-state arbitration in the Transatlantic Trade and Investment Partnership (TTIP). It offers a general response followed by detailed replies to substantive and procedural questions posed by the Commission. Overall, it characterizes the Commission\u27s proposed approach in the TTIP and in the Canada-EU Comprehensive Economic and Trade Agreement (CETA) as having taken positive steps to address the lack of openness in investor-state arbitration but as having failed to address the lack of judicial independence, lack of procedural fairness, and lack of balance in the allocation of rights and responsibilities in investor-state arbitration

The quest for transparency in investor-state arbitration: Are the transparency rules and the Mauritius Convention effective instruments of reform?

In recent years, critics have questioned the legitimacy of international investment law, particularly investor-State arbitration on the grounds, amongst others, that confidentiality and lack of transparency in arbitral proceedings pose a threat to the basic principles of public law and democracy. In response, minimal transparency measures have been introduced by States, regional international economic organizations and the International Centre for the Settlement of Investment Disputes (ICSID) over the last two decades. More recently, the Transparency Rules and the Mauritius Convention were introduced by the United Nations Commission on International Trade Law (UNCITRAL) for a more far-reaching impact. These instruments have been widely applauded as the much awaited solution for entrenching transparency and enhancing the legitimacy of treaty-based investor-State arbitration. But will they really establish transparency in investor-State arbitration considering the opt-out provisions in Article 1(1) of the Transparency Rules and Article 3(1) of the Mauritius Convention? In attempting this question,the article examined the concept of treaty based investor-State arbitration, its public character and the possible effect the opt-out provisions could have on the quest for transparency. It posited that a mechanism that allows parties – States and foreign investors – a choice whether or not to apply these instruments in a given arbitration will impede the attainment of the objective of entrenching transparency in investor-State arbitration

Reform of Investor-State Arbitration: A Perspective from Canada

The article presents a model for reform of investor-state arbitration aimed at enhancing institutional safeguards of independence in the system. The model is based on the person-to-government adjudicative mechanism in Canada\u27s Agreement on Internal Trade. The article also summarizes the win-loss record of Canada and of Canadian investors in investor-state arbitration

The Association of Economic Crises and Investor-State Arbitration Cases

The number of investor-state arbitration disputes has been on the rise since the mid 1990s. Their determinants are still not fully understood. This study empirically examines the effects of economic crises on investor-state arbitration claims, based on international investment agreements (IIAs). We use a unique dataset containing 961 investor-state arbitration claims covering 132 host (defendant) and 75 home (claimant) countries over the 1986-2017 period. We find that episodes of economic crises are positively and significantly associated with the number of investor-state arbitration cases and we uncover evidence that the type of economic crisis matters. In addition, the positive impact of economic crises on arbitration cases is inversely related to the rule of law in a host country. These results are consistent with the view that governments are prioritizing policy actions aiming at mitigating the negative impact of economic crises over compliance with their obligations in IIAs. From a policy perspective, our results suggest that besides strengthening the rule of law domestically, the IIA system should be reformed with a focus on avoiding a vicious circle, thus shortening the recovery period after economic crises.Series: Department of Economics Working Paper Serie

Submission to UNCITRAL Working Group II on International Arbitration

Most investment treaties grant investors the procedural right to bring claims against governments through investor-state arbitration. Under the arbitration rules that commonly govern the proceedings, including the arbitration rules developed by a United Nations body, the United Nations Commission on International Trade Law (UNCITRAL), these disputes can remain hidden from public view from their commencement through conclusion. Recognizing the public interest in investor-state arbitration, UNCITRAL has been working since 2010 to develop a legal standard that would ensure transparency in investor-state arbitration. Committed to the belief that transparency in investor-state arbitration is fundamental for accountability, good governance, and the rule of law, elements which are, in turn, crucial for sustainable development, the Vale Columbia Center on Sustainable International Investment (VCC) has been participating in the UNCITRAL process and has drafted various notes and proposals in support of the effort to increase public access to information regarding these disputes. In October 2012, the VCC and partners, the Center for International Environmental Law and the International Institute for Sustainable Development, prepared this background note describing and analyzing the key issues involved in UNCITRAL's work to increase transparency in investor-state arbitrations