Recent Developments in International Investment Law

2016

International investment law remains a fast evolving and vibrant field of law with ongoing and recently-concluded investment treaty negotiations continually altering the status quo. It is a system at a crossroads of reform, generally focused on safeguarding the right of the host state to regulate and on improving the investor-state dispute settlement (ISDS) mechanism. But reform may also come into play in more far-reaching ways and significant changes are likely to see the day in the near future. One such change concerns the institutional architecture of the resolution of investment disputes, with the possible establishment of a permanent investment court and/or the introduction of an appel…

Investment Arbitration and the Controverted Right of the Arbitrator to Issue a Separate or Dissenting Opinion

2018

Abstract Although dissents are not generally encouraged in international arbitration, they are a reality of investment treaty disputes. About one in five cases includes at least one separate or dissenting opinion. The ICSID Convention is rare among investment arbitration rules to expressly recognise the right of the arbitrator to attach his or her personal opinion to the award. Other investment arbitration rules are silent on the topic. And yet dissenting opinions are an established feature of several international courts and tribunals and their role is often viewed more benevolently than in investment arbitration. The article explores the perceived advantages and disadvantages of dissents …

Investment Treaty Arbitration as Public International Law , written by Eric De Brabandere

2016

The European Union's Proposal for an International Investment Court: Significance, Innovations and Challenges Ahead

2016

International audience; Rampant discontent with the current system that governs the protection of international investment and the functioning of investment tribunals has led to a widespread view that there is an urgent need for reform. This is particularly pronounced in the context of investor-state dispute settlement (ISDS). The European Union (EU) has responded to this need by proposing the creation of an international investment court. With its political weight, the EU confers unprecedented legitimacy on the critics of the current ISDS system and reveals investment dispute settlement in the light of public international law, breaking with its background in commercial litigation. The art…

Most-Favoured-Nation Treatment, Survival Clauses and Reform of International Investment Law

2016

In the last decade, international investment law has been on a trajectory of rapid evolution with reform high on agenda priorities. Reform requires a reconciliation of competing interests, which is generally so difficult to achieve that it is often unclear whether an option constitutes ‘reform’ or unwanted change. Two specific treaty provisions, the most-favoured-nation (MFN) treatment and survival clauses, can interfere with the reform process and become an impediment to changing the rules of the game. This is particularly true when political will is present. The MFN treatment, a guarantee of non-discrimination present in the quasi-totality of investment treaties, can have far-reaching ram…

International Investment Law and ISDS: Mapping Contemporary Latin America

2017

In recent years, the negotiation and conclusion of international investment agreements (IIAs) in Latin America has gone hand-in-hand with a rethinking of investment standards and the elaboration of new IIA models. This is evident, among others, in Brazil’s cooperation and facilitation investment agreements (CFIAs), the continuing negotiations on the creation of a regional dispute settlement centre under the aegis of the Union of South American Nations (UNASUR), some recently-released investment policy documents and amendments to national arbitration laws for disputes involving the State. The article highlights such developments emphasising the broad spectrum of local approaches that vary fr…