Bilateral Investment Treaties

Page 1 of 18

Filter category

Feature post image

Belgium asks European Court of Justice to opine on compatibility of Energy Charter Treaty’s investor-State arbitration provisions with EU law

On 3 December 2020, the Government of Belgium announced that it was submitting a request to the Court of Justice of the European Union for an opinion on ‘the compatibility of the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty with the European Treaties.’ This is major news, potentially sounding the death knell for the settlement of intra-EU investor-State disputes through treaty arbitration. The arbitration of investor-State disputes under intra-EU BITs was held incompatible with EU law by the CJEU in its 2018 Achmea judgment. The Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union adopted by 23 Member States in May this year seeks to terminate the remaining intra-EU BITs and their ‘sunset clauses’, as well as to prevent investors in pending and new arbitration proceedings from relying on their protections. The ECT, to which the EU and all its Member States bar one (Italy having withdrawn from the Treaty at the beginning of 2016) are parties,…

Read more

The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement: An Important Step Forward in the Reform Process?

On May 1, 2020, the secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). States, international organisations and other stakeholders have until October 15 to send comments on the draft. I had the privilege to work extensively on the draft…

Read more

COVID-19 and ‘War’ Clauses in Investment Treaties: A Breach through the Wall of State Sovereignty?

In the fog of COVID-19, lawyers are identifying ways to hold States accountable for the outbreak, indecision and/or actions, whether or not violating due diligence obligations. States have adopted different measures, with varying success and degree of intrusiveness: from lockdowns over export restrictions and requisitions, to stimulus legislation and even infection tracking. As with…

Read more

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…

Read more

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…

Read more
  • Page 1 of 18
  • Last