Investor-State Arbitration Tribunals

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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 and why? Sometimes there was character development: Which individuals were in the room? What were their backgrounds and personalities, and how did these effect interactions within and beyond the room? Sometimes there were subplots: What was the story line in a given week? Which actors took the floor on it and why? In July 2021, the initial four-year series of UNCITRAL Working Group III meetings on ISDS reform came to an end. As the story line has progressed over the years, we have watched some central characters remain throughout, while others have come and gone, with the participation of different states and non-state actors rising and falling over time and with respect to different issues. During…

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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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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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