Bilateral Investment Treaties

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

June 10, 2020

Kit De Vriese

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 previous crises, in particular the Argentinian economic crisis, it is highly probable that investors will file claims under international investment agreements. While many of those will fail, fair and equitable treatment (FET) is the most obvious weapon in the arsenal of the investor, as its shotgun approach has the highest rate of success. It prescribes a balance between the State’s prerogative to take emergency measures (e.g. in times of economic hardship: Hydro Energy v Spain) and the investor’s rights against unreasonable and discriminatory conduct (Merrill & Ring Forestry LP v Canada, Award, §233). However, the State is defended well; it has multiple layers of walls to protect its sovereignty. Next to security clauses in…

Epidemic Sovereignty? Contesting investment treaty claims arising from coronavirus measures

March 27, 2020

Oliver Hailes

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…

UNCITRAL and ISDS Reforms: Agenda-Widening and Paradigm-Shifting

September 20, 2019

Anthea Roberts

Taylor St John

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…

The Colombian Constitutional Court Judgment C-252/19: A new frontier for reform in international investment law

July 29, 2019

Gustavo Prieto

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…

An International Investment Advisory Center: Beyond the WTO Model

July 26, 2019

Jeremy Sharpe

Establishing an international investment advisory center is now a priority for many states. UNCITRAL Working Group III has put the issue at the top of its agenda for ISDS reform. The European Commission is considering an advisory center for its proposed Multilateral Investment Court. The Netherlands government has commissioned a feasibility study. Thinking about an…

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Ecuador v. United States Inter-State Arbitration under a BIT: How to Interpret the Word “Interpretation”?

August 31, 2012

Dapo Akande

There is an inter-State arbitration pending between Ecuador and the United States under the Bilateral Investment Treaty (BIT) between those two countries (Treaty between United States of America and the Republic of Ecuador Concerning the Encouragement and Reciprocal Protection of Investment, 27 August 1993). The Ecuador v. US case , which was initiated in June 2011, is, as far as…

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

December 10, 2021

Javier García Olmedo

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…

Achmea: The principle of autonomy and its implications for intra and extra-EU BITs

March 27, 2018

Angelos Dimopoulos

On 6 March 2018, the CJEU issued its judgment in Case C-284/16 Achmea, where it opined that intra-EU BITs and in particular their ISDS provisions are incompatible with the principle of autonomy of EU law. In a rather brief judgment, the Court found the ISDS provision under the Netherlands-Slovakia BIT has an adverse effect on the autonomy…

Urbaser v Argentina: The Origins of a Host State Human Rights Counterclaim in ICSID Arbitration?

February 10, 2017

Edward Guntrip

Investment tribunals rarely examine host state arguments based on international human rights law in great depth. The ICSID award Urbaser v Argentina is the first to provide a detailed discussion of a host state’s human rights counterclaim. Hence, this decision presents an opportunity to more fully understand the role of human rights in investment arbitration. As the…