Bilateral Investment Treaties

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ISDS reform and air guitar: A response to Grant and Kieff

July 19, 2022

In issue 2020(2) of EJIL, we published an empirical study concerning the public perception of investment arbitration. Our article presents the results of four experiments that we conducted to assess which factors mostly affect the public acceptance of investor-State dispute resolution outcomes. In our study we tested a number of possible factors that influence public perception – i.e. the institutional design of ISDS, the rights investment arbitration protects, and the inclusion or exclusion of domestic investors from the benefits of ISDS. Thomas D. Grant and F. Scott Kieff have published a fascinating and thought-provoking response to our study. We are grateful to Grant and Kieff for the attention they have dedicated to our article, and for the points they raise, which allow us to rekindle the EJIL debate on the “experimental turn” in international law scholarship. In this post, we will pick up some of Grant and Kieff’s suggestions, in the hope of encouraging them (and any other interested EJIL reader) to experiment…

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New Options for Investor Accountability in ISDS

December 22, 2021

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…

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

December 10, 2021

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

December 8, 2020

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?

August 13, 2020

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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