Bilateral Investment Treaties

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Epidemic Sovereignty? Contesting investment treaty claims arising from coronavirus measures

  Though nothing can be immortall, which mortals make; yet, if men had the use of reason they pretend to, their Common-wealths might be secured, at least, from perishing by internall diseases. Hobbes, Leviathan (1651). My morning radio plays a hit parade of measures adopted by various States to combat the pandemic spread of coronavirus disease (COVID-19), from Italian lockdown to British equivocation. Our collective infirmity has exposed the dependence of supply chains and financial forecasts on the predictability of sovereign responses to emergent threats. Policies so far seem disjointed, parochial, ad hoc. Economic loss is escalating in the scramble to save lives. When the dust settles, some foreign investors could call upon their host State to cough up. Indeed, allegedly arbitrary or disproportionate measures, albeit in the public interest, provide regular grist for the mill of investment treaty arbitration. In the debate whether investment treaties create a chilling effect, there is an assumed ‘clash of cultures’ between public health and investment arbitration. By…

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UNCITRAL and ISDS Reforms: Agenda-Widening and Paradigm-Shifting

On 17 July 2019, South Africa made its submission to UNCITRAL on investor–state dispute settlement (ISDS) reform in which it seeks a “paradigm-shift” in investment law. In keeping with our description of South Africa as a “widener” in the UNCITRAL debates, the submission brings a wide-angle lens to the negotiations, first placing…

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The Colombian Constitutional Court Judgment C-252/19: A new frontier for reform in international investment law

On 6 June 2019, the Colombian Constitutional Court announced its long-awaited decision (made public 2 July 2019) regarding the constitutionality of the 2014 Colombia – France Bilateral Investment Treaty (BIT). Using an innovative line of reasoning, the Colombian Court did not only rule on whether or not this text was constitutional. It further declared the BIT to…

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An International Investment Advisory Center: Beyond the WTO Model

Establishing an international investment advisory center is now a priority for many states.  UNCITRAL Working Group III has put the issue at the top of its agenda for ISDS reform.  The European Commission is considering an advisory center for its proposed Multilateral Investment Court.  The Netherlands government has commissioned a feasibility study. Thinking about an…

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An Analysis of the Use of ICJ Jurisprudence in Investor-State Dispute Settlement

Last October 2018, the International Court of Justice (“ICJ” or “the Court”) issued its merits judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile). In a brief passage, the Court summarily dismissed Bolivia’s argument that the doctrine of “legitimate expectations” exists in general international law outside the context of fair and equitable treatment…

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