Investor-State Arbitration Tribunals

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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 tools and outlining ‘how to foster their use’. Treaty interpretation by treaty Parties commands attention, in light of States’ increasing efforts to safeguard their ability to influence the interpretation of their IIAs. A seminal and potentially controversial aspect of treaty Party interpretations is their timing. This is also the topic of this contribution. The post reviews the timing of treaty Party interpretations, in light of treaty Party interpretations issued outside treaty negotiations, during negotiations, at the time of treaty signature, and post-treaty conclusion. Outside treaty negotiations Outside IIA negotiations, States can guide the interpretation of their IIAs through interpretive statements, model BITs, official statements, commentaries, parliamentary debates, and constitutional court decisions. For example, 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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COVID-19 and ‘War’ Clauses in Investment Treaties: A Breach through the Wall of State Sovereignty?

In the fog of COVID-19, lawyers are identifying ways to hold States accountable for the outbreak, indecision and/or actions, whether or not violating due diligence obligations. States have adopted different measures, with varying success and degree of intrusiveness: from lockdowns over export restrictions and requisitions, to stimulus legislation and even infection tracking. As with…

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A New Hope for the Yukos Shareholders – PCA Awards Revived by the Hague Court of Appeal

Four years ago, the Hague district court gave an unexpected twist to the dispute between Russia and shareholders of the former oil company Yukos, setting aside the 50 billion USD awards issued by an investment arbitration tribunal under the auspices of the PCA on grounds of Russia’s breach of the expropriation clause of the…

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