Investor-State Arbitration Tribunals

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Reassessing Consent in Counterclaims: Rebalancing Investment Protection and Public Interest under the UNCITRAL ISDS Reform

November 27, 2025

Li Yi

In mid-2025, the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WGIII) released a new set of Draft Provisions on Procedural and Cross-Cutting Issues, as part of its ongoing reform of investor-state dispute settlement (ISDS), which aims at addressing long-standing concerns about the fairness, balance, and effectiveness of the current system. One of the most notable proposals identifies an investor’s initiation of arbitration as implied consent to a tribunal’s jurisdiction over counterclaims. Counterclaims have increasingly been seen as a potential tool for host States to raise public interest concerns deriving from foreign investment. The proposed implied consent rule addresses a crucial question: how ‘consent’ should function when a State seeks to bring a counterclaim against an investor.

Time and Compromise in UNCITRAL’s Working Group III

October 22, 2025

Ladan Mehranvar

Tarald Gulseth Berge

During the week of 22 September 2025, States once again met in Vienna under Working Group III (WGIII) of the United Nations Commission on International Trade Law (UNCITRAL) to deliberate reforms to investor–State dispute settlement (ISDS). Since receiving its mandate in 2017, WGIII has been tasked with identifying and addressing concerns about the ISDS system embedded in investment…

Lupaka Gold v. Peru (2025) at ICSID: Indigenous Self-Determination and State Responsibility in International Investment Law

October 10, 2025

José Saldaña

On June 30th 2025, an international arbitration tribunal at the International Centre for Settlement of Investment Disputes (ICSID) held that Peru had breached its obligations under the Canada – Peru Free Trade Agreement (FTA) by failing to provide full protection and security (FPS) and fair and equitable treatment to the Canadian mining company Lupaka Gold Corp. The…

Redefining the Rules: A New Generation of Sponsorship Agreements in Deep Sea Mining?

August 27, 2025

Nicolò Andreotti

Franka Nodewald

A ‘new generation’ of sponsorship agreements for deep sea mining operations between The Metals Company (TMC) subsidiaries and their sponsoring states is evolving. On May 29th, 2025 The Republic of Nauru (Nauru) and Nauru Ocean Resources Inc. (NORI) concluded an amended version of their sponsorship agreement (Nauru-SA). Similarly, on August 4th, 2025 the Government of the Kingdom…

Clocked Out: How the Armenian Civil Code Sank a $331 Million Claim

April 17, 2025

Davit Khachatryan

Can a three-year deadline in Armenia’s Civil Code derail a $331 million investment arbitration? The recent ICSID award in Rasia FZE and Joseph K. Borkowski v. Republic of Armenia says yes, exposing a critical spot in investor-state dispute settlement (ISDS): the quiet power of domestic law to strangle investment claims. The dispute stemmed from a…

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A Turning of the Tide against ISDS?

May 19, 2017

Anthea Roberts

The Court of Justice for the European Union fired a significant shot at investor-state dispute settlement (ISDS) this week, and the result is likely to be much more than just a flesh wound. In deciding that the European Union did not have exclusive competence to enter into agreements including ISDS clauses, the Court made it significantly more likely…

CETA’s New Domestic Law Clause

March 17, 2016

Jarrod Hepburn

The recent, widely-reported ‘legal scrub’ of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) has drawn attention for its endorsement of a radical shift away from the model of investor-state dispute settlement that has prevailed in investment agreements to date. The new text indicates that Canada has agreed to the EU’s proposals on an investment court system,…

Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis

April 28, 2017

Anthea Roberts

I have recently been pondering a common complaint voiced against the EU and Canada’s proposal for a multilateral investment court, which is that it would be biased against investors because all of the judges would be selected by states (see, for example, the ABA’s Report here and Judge Schwebel’s speech here). In my view, this…

The Empire Strikes Back: Yukos-Russia, 1-1

May 26, 2016

Johannes Fahner

In the latest chapter to the ever fascinating Yukos dispute, Russia recently secured a victory in the District Court of The Hague, which set aside the US $ 50 billion awards issued two years ago by an arbitral tribunal constituted under the Energy Charter Treaty (ECT). The crucial issue was whether Russia was bound to…