Bilateral Investment Treaties

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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 Code as a scholar in residence at ICSID from September 2019 to March 2020, while on Sabbatical leave from my own law school. In this short contribution, I first put the code in the larger context of the ISDS reform process, then explain the main provisions and general content of the draft, and finally provide some comments and ways forward.

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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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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…

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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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