Investor-State Arbitration Tribunals

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UNCITRAL and ISDS Reform (Hybrid): Islands of Persuasion

Since UNCITRAL Working Group III opened its most recent session on 14 February, many delegates began their interventions by wishing each other a Happy Valentine’s Day. As they did this, we recalled our blog after the first virtual session, in which we wrote that moving online was “like entering into a long distance relationship that remains fueled by memories of in person connection. But what happens as the time drags out and the challenges mount? Will the group’s commitment remain? Or will it wane?”  Sixteen months later, the group’s commitment has not waned. Most sessions this week had 270 attendees, despite time zone challenges and competing priorities. Large delegations from Korea (7 officials), China (10 officials), and Singapore (7 officials) were still on the line as the clock struck 2am in Seoul and 1am in Beijing and Singapore at the end of the morning sessions. These delegations were all back again four hours later for the afternoon session, as were other Asian delegations, including Thailand’s delegation of 7 officials, from 4 different ministries,…

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UNCITRAL and ISDS Reform (Hybrid): Season 5 – Watching the Grass Grow

Watching UNCITRAL Working Group III over the years has been a bit like viewing a long-running television series. The beginning of the process was exciting as we met a compelling cast of characters and the plot line began to take shape. Sometimes there was high drama: Which actors would support which kinds of reforms? Which ones would oppose…

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Ecuador returns to the ICSID Convention: A brief assessment of its decade-long international investment law ‘exit strategy’

On July 6, 2009, Ecuador notified (here) the World Bank of its denunciation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). This denunciation formed part of a strategy of resistance to the international investment regime. Around that time, this South American country also began to terminate its…

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UNCITRAL and ISDS Reform (Online): Crossing the Chasm

To text or not to text? That is the question. Or, rather, that was the question at UNCITRAL when Working Group III resumed its deliberations online last week. The Working Group’s focus was structural reforms, first selection and appointment of permanent or fixed-term adjudicators, then an appellate mechanism. As readers of this series know well, states hold different…

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Against DCF valuation in ISDS: on the inflation of awards and the need to rethink the calculation of compensation for the loss of future profits

One of the most noticeable facts in recent ISDS is the spectacular inflation of compensation awarded to investors. The overall increase in the amounts is well documented. Of the (now more than) 50 known awards in excess of USD 100 million, none was rendered before 2000 and only 11 before 2010. What is most attention-grabbing, however,…

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