Investor-State Arbitration Tribunals

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Expropriating democracy: on the right and legitimacy of not ratifying CETA

In May 2020, the unwinding saga in CETA’s ratification landed in a divided Dutch Senate. The date of the decisive vote in the Senate is dependent on the government’s response to questions raised by senators. Academics have suggested that the Netherlands should ratify CETA because not doing so ‘would be a very negative signal’ ‘in today’s crumbling international legal order.’ In a somewhat similar vein, the Parliament of Cyprus has been reprimanded for having rejected CETA. There are at least two sets of arguments that ought to be considered when discussing the legality and legitimacy of Member States ratification of CETA, which may have been understated in the above-mentioned analyses. The first is that national parliaments have a sound legal basis for not ratifying CETA. The second is that it is not only legal but fully legitimate to not ratify an agreement including an investor-state dispute settlement mechanism, one of the most controversial institutions in the contemporary international legal order. Underplaying the legality and legitimacy of this choice, we argue, is a disservice to…

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UNCITRAL and ISDS Reform (Online): Can You Hear Me Now?

‘Can you hear me now?’ is a question that the delegates of Working Group III asked each other often last week, as negotiations on ISDS reform continued but were, for the first time, online. Moving online means that negotiators are also facing many other new questions. How do you keep momentum going? Does moving online mean more governments and…

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Uses and abuses of authentic interpretations of international investment agreements: Reflections on the role of arbitral tribunals as masters of the judicial function

In their previous posts, Catharine Titi and Tarcisio Gazzini discussed some general aspects concerning authentic (joint) interpretations of international investment agreements. They brilliantly clarified aspects concerning the timing of joint interpretations as well as the murky difference between interpretations and amendments of investment treaties. This post will not delve into what was already explained by my…

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The Timing of Treaty Party Interpretations

Treaty interpretation by treaty Parties was initially planned to be discussed in the 39th session of UNCITRAL Working Group III scheduled to take place in New York in March-April 2020. A Note prepared by the UNCITRAL Secretariat in anticipation of the now-postponed session addressed treaty interpretation in the context of ISDS, pointing to the existing interpretive…

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Authentic (or Authoritative) Interpretation of Investment Treaties by the Treaty Parties

General remarks The interpretation of investment treaties is governed by the rules on interpretation codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT). The hybrid nature of Investor-State arbitration, in which the parties to the dispute and the parties to the treaty do not coincide, calls for a “particular…

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