International Economic Law

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UNCITRAL and ISDS Reform (Online): Crossing the Chasm

To text or not to text? That is the question. Or, rather, that was the question at UNCITRAL when Working Group III resumed its deliberations online last week. The Working Group’s focus was structural reforms, first selection and appointment of permanent or fixed-term adjudicators, then an appellate mechanism. As readers of this series know well, states hold different substantive views about the desirability of structural reform and these differences came out clearly in their interventions. But the more significant question of the week was one of process: whether, despite these differences, the time had come to move to text in an effort to “cross the chasm” of developing reforms. During the week, that question was answered in the affirmative. The movement toward “texting” was significant, though not unexpected. In a letter to delegates before the session, the Chair explained that the Working Group will be developing numerous reforms over the coming years that will be presented for review and approval by the Commission on a rolling basis. However, the expectation is that all…

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The EU-China Comprehensive Agreement on Investment: a tale of sound and fury

On December 30, the European Commission announced that the European Union and China had reached an agreement in principle on investment, nearly seven years after negotiations began. This was met with shock, if not fury— and that was even before the agreement was published. Those hoping for reinvigorated transatlantic relations between the EU and the USA following…

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Equitable COVID Vaccine Distribution and Access: Enforcing International Legal Obligations under Economic, Social, and Cultural Rights and the Right to Development

Editor's Note: This post was prepared in advance of my remarks for the 12 February 2021 Global Webinar of the Notre Dame Eck Institute of Global Health ("Are we all in this together? Assessing and addressing equitable access and distributive justice in global supply chains during major disease outbreaks").  By this time, US pharmaceutical companies…

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Cairn Energy v India: Retroactive Taxation, Fair and Equitable Treatment and the General Principles Method

This post addresses an Award of 21 December 2020 in Cairn Energy v India, a case under the UK–India BIT. The headline outcome of the Award is that India’s retroactive application of taxation legislation, that subsequently imposed taxes on the transactions of the claimants that were not taxable at the time the transactions occurred, constituted a…

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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…

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