Bilateral Investment Treaties

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New Options for Investor Accountability in ISDS

ISDS emerged in the twentieth century to empower foreign investors to assert legal claims against host states without the intervention of their home state. But this understanding of international investment law (IIL) – investor rights and host state duties – is now a relic of the past. Yet because of their current asymmetrical nature, ISDS and IIL do not effectively regulate investors’ conduct. Various states have made it clear that that asymmetry has to change. One prominent manifestation of this movement for change is the inclusion of investor obligations in (a few) investment treaties. In the quest for investor accountability, this is clearly an important step, but without procedural tools to enforce these obligations, they will only serve as decorative features in investment treaties. The incumbent challenge for states is to create the requisite procedural tools. There has never been a more opportune to tackle this challenge: as we speak, the reform process for ISDS is ongoing at UNCITRAL Working Group III. To this end, this blog post examines some of the more innovative…

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Nottebohm Under Attack (Again): Is it Time for Reconciliation?

Introduction The Nottebohm judgment has recently come under attack in the context of the European Commission’s position on investment by citizenship (CBI) schemes, also known as “golden passport” programmes. These schemes allow individuals to obtain a second citizenship in a host country in exchange for financial investments or even just a flat fee. On 20…

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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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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…

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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…

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