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ASEAN and the Reform of Investor-State Dispute Settlement by Calamita, Nicolas J.,Giannakopoulos, Charalampos Pdf
The reform of Investor-State Dispute Settlement (ISDS) is a subject of ongoing debate in international institutions, yet an ASEAN perspective on the subject has been largely absent to date. This book addresses that gap by presenting, analysing and assessing ISDS reform from an ASEAN perspective, taking into account the experience, needs and concerns of ASEAN as a community and of its member states.
Author : Alan M. Anderson,Ben Beaumont Publisher : Kluwer Law International B.V. Page : 441 pages File Size : 48,5 Mb Release : 2020-11-27 Category : Law ISBN : 9789403518107
The Investor-State Dispute Settlement System by Alan M. Anderson,Ben Beaumont Pdf
Investor-State disputes are increasing and damage awards are often significant. It is thus no surprise that the investor-State dispute settlement (ISDS) system has come under scrutiny. Perceptions have arisen that ISDS is inconsistent, lacks transparency, and is simply unfair. This book delves into the ongoing worldwide debate and discussions regarding the ISDS system. Drawing contributors from around the world, the authors provide insights on critical topics and address the key question facing the ISDS system and the international community it serves: Should the present ISDS system be reformed, replaced, or simply remain as is? The contributors represent points of view ranging from academia to practice to governmental entities, addressing such topics as: the possible consequences of wholesale replacement or elimination of the current ISDS system; mediation as an alternative to resolve ISDS disputes; the creation of a multinational investment court or appellate review mechanism; lack of an early dismissal mechanism to eliminate meritless claims; issues regarding arbitrators, including their appointment and ethical obligations; how investors may retain their right to pursue claims for violations of investment protection following termination of an agreement; a State’s right to assert a counterclaim against an investor-claimant; the role of ISDS in promoting and protecting renewable energy production; the liability of State-controlled entities; the effects and implications of third-party funding; the duty to mitigate damages in the light of excessive damages awards; and improvements and issues relating to post-award enforcement, duration, and cost of ISDS. This book considers the ongoing deliberations and reform measures proposed by UNCITRAL’s Working Group III and provides insights into how several geographic regions and economic cooperation areas have sought to address the question of reform of the ISDS system, including the European Union, the Middle East, and the new United States-Mexico-Canada Agreement. With its much-needed and deeply informed balancing of investor and State rights and duties, this book will be welcomed by all who practise in the ISDS field, including arbitrators, State governments and non-governmental organizations, regional economic organizations, and international investors.
Reshaping the Investor-State Dispute Settlement System by Jean E. Kalicki,Anna Joubin-Bret Pdf
In Reshaping the Investor-State Dispute Settlement System, Jean E. Kalicki and Anna Joubin-Bret offer a broad compendium of practical suggestions for reform of the current system of resolving international investment treaty disputes through arbitration.
Investor-State Dispute Settlement and National Courts by Gabrielle Kaufmann-Kohler,Michele Potestà Pdf
This open access book examines the multiple intersections between national and international courts in the field of investment protection, and suggests possible modes for regulating future jurisdictional interactions between domestic courts and international tribunals. The current system of foreign investment protection consists of more than 3,000 international investment agreements (IIAs), most of which provide for investment arbitration as the forum for the resolution of disputes between foreign investors and host States. However, national courts also have jurisdiction over certain matters involving cross-border investments. International investment tribunals and national courts thus interact in a number of ways, which range from harmonious co-existence to reinforcing complementation, reciprocal supervision and, occasionally, competition and discord. The book maps this complex relationship between dispute settlement bodies in the current investment treaty context and assesses the potential role of domestic courts in future treaty frameworks that could emerge from the States’ current efforts to reform the system.The book concludes that, in certain areas of interaction between domestic courts and international investment tribunals, the “division of labor” between the two bodies is not always optimal, producing inefficiencies that burden the system as a whole. In these areas, there is a need for improvement by introducing a more fruitful allocation of tasks between domestic and international courts and tribunals – whatever form(s) the international mechanism for the settlement of investment disputes may take.Given its scope, the book contributes not only to legal analysis, but also to the policy reflections that are needed for ongoing efforts to reform investor-State dispute settlement.
Investor-State Dispute Settlement by Scott Miller,Gregory N. Hicks Pdf
Investor-State Dispute Settlement (ISDS) is a provision in Bilateral Investment Treaties (BITs) and other international investment agreements that allows investors to enter arbitration with states over treaty breaches. ISDS has become controversial in the United States and our negotiating partners; critics, including some governments, have argued that ISDS is unnecessary, while others insist it is illegitimate as public policy. Treaty-based investment protection represents a major advance in the fair treatment of aliens and the peaceful resolution of disputes. Given the alternatives, withdrawing from investment treaties—the logical conclusion of the critics’ position—would likely have negative consequences for economic growth and the rule of law. This report is an empirical review of ISDS, based on the record of disputes under existing investment treaties.
Investor-State Dispute Settlement and National Courts by Gabrielle Kaufmann-Kohler Pdf
This open access book examines the multiple intersections between national and international courts in the field of investment protection, and suggests possible modes for regulating future jurisdictional interactions between domestic courts and international tribunals. The current system of foreign investment protection consists of more than 3,000 international investment agreements (IIAs), most of which provide for investment arbitration as the forum for the resolution of disputes between foreign investors and host States. However, national courts also have jurisdiction over certain matters involving cross-border investments. International investment tribunals and national courts thus interact in a number of ways, which range from harmonious co-existence to reinforcing complementation, reciprocal supervision and, occasionally, competition and discord. The book maps this complex relationship between dispute settlement bodies in the current investment treaty context and assesses the potential role of domestic courts in future treaty frameworks that could emerge from the States current efforts to reform the system. The book concludes that, in certain areas of interaction between domestic courts and international investment tribunals, the "division of labor" between the two bodies is not always optimal, producing inefficiencies that burden the system as a whole. In these areas, there is a need for improvement by introducing a more fruitful allocation of tasks between domestic and international courts and tribunals - whatever form(s) the international mechanism for the settlement of investment disputes may take. Given its scope, the book contributes not only to legal analysis, but also to the policy reflections that are needed for ongoing efforts to reform investor-State dispute settlement.
The Future of Investor-State Dispute Settlement by Ben Beaumont,Fahira Brodlija,Robert Ashdown,Armand Terrien Pdf
What makes investor-State dispute settlement (ISDS) as dynamic a field as it is – especially in comparison with international commercial arbitration – is its uncanny ability to engage directly with the most topical and pressing issues of the day, including human rights, regulation of the energy sector, and climate change and the environment more generally. This book provides a deep dive into the reality behind the causes and effects of the expressed concerns regarding ISDS and the extent to which they can and have been addressed by ongoing reform processes at national, regional, and international levels. Deeply informed insights from leading scholars and practitioners on the status quo and perspectives of ISDS shed clear light on such aspects as the following: reform instruments adopted at the UNCITRAL Working Group III; issues surrounding the legitimacy of ISDS; dispute prevention and amicable settlement mechanisms; the proposed multilateral investment court; implications of climate change and energy transition for investment policies and disputes; recent regional trends in policymaking and perspectives; the ICSID-UNCITRAL Code of Conduct; investment protection standards and dispute resolution mechanisms in recent international investment treaties; viability of the modernized Energy Charter Treaty; use of artificial intelligence; and participation of civil society organizations. As an in-depth analysis of the most recent developments in international investment law and dispute resolution, this book offers a realistic view of the reform processes, thus underlining the necessary legal and institutional measures that will translate into real-life effects in the future. With its help, policymakers and government officials will identify ongoing trends and anticipate risks that require intervention, while practitioners and the broader dispute resolution community will find valuable information about the evolving contours of investment protection treaties and ISDS. For academics and civil society organizations interested in the developments and implications of ISDS, the book provides factual, nuanced, and effective analysis of the relevant issues.
The Selection and Removal of Arbitrators in Investor-State Dispute Settlement by Chiara Giorgetti Pdf
The Selection and Removal of Arbitrators in Investor-State Dispute Settlement explores and assesses two essential features in investor state dispute resolution (ISDS): the selection and the removal of arbitrators. Both topics have received increasing scrutiny and criticism, that have in turn generated calls for reforms In its first part, the book explains the selection of arbitrators procedurally and comparatively under the most-often used arbitration rules.
Investor-State Arbitration by Christopher Dugan,Don Wallace,Noah Rubins,Borzu Sabahi Pdf
I. Introduction II. History and Limitations of the Traditional System for Resolving Investment Disputes III. The Modern System of Investor-State Arbitration IV. Commonly Used Procedural Rules V. Procedural Law Applicable in Investor-State Arbitration VI. National Court Interference: Anti-Arbitration Injunctions VII. The Course of an Investment Arbitration VIII. Consolidation under Relevant Arbitration Rules or Treaties IX. Governing Law in Investment Disputes X. Consent to Arbitral Jurisdiction XI. The Concept of Investment XII. The Nationality of the Investor XIII. Exhaustion of Local Remedies XIV. Election of Forum: National Courts and Contract Arbitrations XV. Discrimination XVI. Expropriation XVII. "Fair and Equitable Treatment" and "Full Protection and Security" XVIII. Umbrella Clauses XIX. Damages, Compensation, and Non-Pecuniary Remedies XX. Annulment and Set Aside XXI. Enforcement of Awards XXII. The Future of International Investment Arbitration Select Bibliography Index Table of Cases Index of Treaties, Conventions, and International Agreements.
The Role of the State in Investor-State Arbitration by Shaheeza Lalani,Rodrigo Polanco Lazo Pdf
Edited by Shaheeza Lalani and Rodrigo Polanco Lazo, The Role of the State in Investor-State Arbitration is a collection of edited contributions by lawyers, arbitrators and political scientists on the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration.
Public Actors in International Investment Law by Catharine Titi Pdf
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.
India and Investor-State Dispute Settlement by Prabhash Ranjan Pdf
Prabhash Ranjan explores the two competing narratives of investor-state dispute settlement (ISDS) and focuses on the six ISDS cases India lost. On the one hand, ISDS is chastised for affronting the State’s sovereign regulatory power – the Philip Morris narrative. On the other hand, ISDS allows investors to hold States accountable for abuse of public power – the Yukos narrative. This book argues that India’s ISDS story resembles the Yukos narrative. With a focus on six case studies, this book examines the reasons that led to foreign investors suing India and the following developments. These ISDS claims are divided into four categories: a case arising from judicial actions, claims brought because of the cancellation of a contract to lease spectrum, conflicts resulting from the imposition of retroactive taxes, and disputes arising from the actions of sub-national governments. Based on India’s recent treaty practice, the book also contends that India is de-legalizing and de-judicializing international investment law. By telling India’s ISDS story, the book drives home the point that rectifying the ISDS system's flaws requires both narratives' centrality. Excessive focus on the Philip Morris narrative will replace the existing imbalances with a new one where the scale tilts towards the States to the detriment of foreign investment. This is a useful reference for scholars and practitioners interested in ISDS and its implications for India.
United Nations Conference on Trade and Development
Author : United Nations Conference on Trade and Development Publisher : United Nations Publications Page : 128 pages File Size : 55,9 Mb Release : 2007 Category : Business & Economics ISBN : UOM:39015069035858
Investor-state Dispute Settlement and Impact on Investment Rulemaking by United Nations Conference on Trade and Development Pdf
The aim of this study is to take stock of and to analyse the major developments in the interpretation of procedural and substantive international investment agreement (IIA) provisions as contained in bilateral investment treaties and economic integration agreements with investment provisions. It addresses the implications of those developments for countries, emphasizing the particular needs of developing countries. It presents some conclusions and reflections on possible next steps that countries could take to implement the lessons learned from the investor-State dispute settlement experience.
