International Investment Law

Page 1 of 2

Filter category

Feature post image

Shoehorning Substance into a Procedural Mandate? The Right to Regulate and UNCITRAL Working Group III

September 7, 2023

This post addresses Draft Provision 12, on ‘Right to Regulate’, in the recent ‘Draft Provisions on Procedural and Cross-Cutting Issues’ that were published by the UNCITRAL Secretariat in late July and will be discussed at UNCITRAL Working Group III’s next session in October 2023 (A/CN.9/WG.III/WP.229 [11]). The Draft Provisions have been ‘prepared for inclusion in existing and future’ International Investment Agreements (IIAs) (A/CN.9/WG.III/WP.231, [3]). While Draft Provision 12(1) contains a very standard right to regulate clause, similar to those found in many newer IIAs, the next two paragraphs are far more novel. These provide: When assessing the alleged breach by a Contracting Party of its obligation under the Agreement [the relevant IIA], the Tribunal shall give a high level of deference that international law accords to Contracting Parties with regard to the development and implementation of domestic policies, the right to regulate in the public interest and the right to adopt, maintain and enforce measures sensitive to the protection of public health, public safety or the environment,…

Read more

Dual Nationals in Investment Treaty Arbitration: An Emerging Field of Inconsistent Decisions

July 27, 2023

Introduction Nationality is a crucial marker for protection in international investment law. Only investors that qualify as nationals of a contracting party can access investment treaties. Most investment treaties, however, are premised on broad provisions defining eligible nationals. With respect to individuals, these instruments typically define protected investors as physical persons who hold the nationality…

Read more

Sovereign White Knights: Defensive State-Capitalism as a Gate Keeper of (EU) Economic Security?

July 18, 2023

Geopolitical considerations have been creeping into corporate and international economic laws. Faced with rapidly increasing inbound foreign direct investment by corporations from competing economies, many countries have either strengthened existing, or developed new, investment screening mechanisms. These mechanisms enable host country governments to decide whether to admit foreign investment, and if so, whether conditions should be…

Read more

Critical insecurities? The European Union’s trade and investment strategy for a stable supply of minerals for the green transition

February 23, 2023

Clashing over critical minerals The green transition is creating an exponential need for critical raw materials (“CRMs”), such as lithium, nickel and cobalt, as these are necessary for environmentally-friendly technologies, from wind turbines to electrical vehicles. The European Union (“EU”) is in desperate need of such minerals due to limited reserves at home and long-lasting…

Read more

Politicization of the 5G rollout: Litigation way for Huawei?

February 10, 2023

The Chinese government’s ambition to become the global leader in new technologies, manifested in state-led industrial policies such as Made in China 2025, has prompted a strong response. For example, the United States significantly tightened its export control regulations and expanded grounds for foreign direct investment screening. In turn,…

Read more