Bilateral Investment Treaties

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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 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…

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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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An International Investment Advisory Center: Beyond the WTO Model

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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