International Investment Law

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The Mandate Conundrum: Reflections on the 46th Session of the UNCITRAL Working Group III on ISDS Reform

November 21, 2023

The UNCITRAL Working Group III convened in Vienna between 9 and 13 October 2023 for its 46th session to discuss the establishment of an advisory centre on international investment law, which would be tasked to provide legal and technical assistance in connection with investor-State disputes. In addition, it would tackle a number of “procedural and cross-cutting” issues (PaCCI) it had identified in earlier sessions. The PaCCI, 25 in total, includes the right to regulate, damages, consultation, denial of benefits, shareholder claims, and counterclaims. On the first day, the WGIII allocated three days to discuss the issue of the advisory centre and two days to commence its debate on the PaCCI (specifically damages). The WGIII began its work by acknowledging that given the number of the identified PaCCI and their extensive content, the discussions on both agenda items would likely continue well beyond the 46th session. The 47th session is scheduled to take place between 22 and 26 January 2024 in Vienna. Parallel to these two…

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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…

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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…

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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…

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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…

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