Investor-State Arbitration Tribunals

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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 Bilateral investment treaties (BITs) and even inserted an ‘explicit clause’ (Article 422) in the Ecuadorian Constitution to prevent future governments from entering new International Investment Agreements (IIAs) that could ‘yield sovereignty’ to international arbitration. Since that time, the Ecuadorian case has served as a textbook example of an ‘exit strategy’ in debates on Investor-State Dispute resolution (ISDS). More than a decade later, on 20 June 2021, the current President of Ecuador reversed the nation’s strategy and rejoined the ICSID convention (here). Days later, the Ecuadorian Constitutional Court (here) upheld the President’s decision, deciding that the ICSID Convention could be ratified without further approval from the National Assembly. However, Ecuador cannot sign new IIAs until…

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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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Belgium asks European Court of Justice to opine on compatibility of Energy Charter Treaty’s investor-State arbitration provisions with EU law

On 3 December 2020, the Government of Belgium announced that it was submitting a request to the Court of Justice of the European Union for an opinion on ‘the compatibility of the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty with the European Treaties.’ This is major news, potentially sounding the death knell…

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To CETA or not to CETA: Reflections on ISDS and the special responsibility of national parliaments

In a reaction to an EJIL: Talk! post by Baetens et al., Arcuri et al. claim that the Dutch parliament has the right to reject CETA and also argue in favour of it doing so. The post by Arcuri et al. raises important points that merit further discussion, among legal academics and practitioners, politicians, and citizens.

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