Investor-State Arbitration Tribunals

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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 more officials participate? Or does it lessen the prestige and priority of the negotiations, leading to less engagement by key officials? How do you read the room? How do you build coalitions? If what matters most is what happens in the margins, what happens when there are no margins?…

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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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The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement: An Important Step Forward in the Reform Process?

On May 1, 2020, the secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). States, international organisations and other stakeholders have until October 15 to send comments on the draft. I had the privilege to work extensively on the draft…

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