Investor-State Dispute Settlement System

Name: Investor-State Dispute Settlement System | Reform, Replace or Status Quo?
Brand: Kluwer Law International
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Reform, Replace or Status Quo?

Alan M. Anderson(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 27. November 2020

528 Seiten

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Investor-State disputes are increasing and damage awards are often significant. It is thus no surprise that the investor-State dispute settlement (ISDS) system has come under scrutiny. Perceptions have arisen that ISDS is inconsistent, lacks transparency, and is simply unfair. This book delves into the ongoing worldwide debate and discussions regarding the ISDS system. Drawing contributors from around the world, the authors provide insights on critical topics and address the key question facing the ISDS system and the international community it serves: Should the present ISDS system be reformed, replaced, or simply remain as is? The contributors represent points of view ranging from academia to practice to governmental entities, addressing such topics as: the possible consequences of wholesale replacement or elimination of the current ISDS system; mediation as an alternative to resolve ISDS disputes; the creation of a multinational investment court or appellate review mechanism; lack of an early dismissal mechanism to eliminate meritless claims; issues regarding arbitrators, including their appointment and ethical obligations; how investors may retain their right to pursue claims for violations of investment protection following termination of an agreement; a State's right to assert a counterclaim against an investor-claimant; the role of ISDS in promoting and protecting renewable energy production; the liability of State-controlled entities; the effects and implications of third-party funding; the duty to mitigate damages in the light of excessive damages awards; and improvements and issues relating to post-award enforcement, duration, and cost of ISDS. This book considers the ongoing deliberations and reform measures proposed by UNCITRAL's Working Group III and provides insights into how several geographic regions and economic cooperation areas have sought to address the question of reform of the ISDS system, including the European Union, the Middle East, and the new United States-Mexico-Canada Agreement. With its much-needed and deeply informed balancing of investor and State rights and duties, this book will be welcomed by all who practise in the ISDS field, including arbitrators, State governments and non-governmental organizations, regional economic organizations, and international investors.

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Inhalt

Intro
Half-Title Page
Title Page
Copyright Page
Editors
Contributors
Summary of Contents
Table of Contents
Acknowledgements
Foreword
Introduction
Chapter 1 Bringing Consistency to Investment Arbitration: Challenges and Reform Proposals
§1.01 INTRODUCTION
§1.02 THE CONSISTENCY AND COHERENCE DEBATE: WHAT IS AT STAKE
[A] Consistency
[B] Coherence
[C] Predictability
[D] Correctness of Decision
§1.03 INCONSISTENCY AND INCOHERENCE IN INTERNATIONAL INVESTMENT ARBITRATION
[A] Different Kinds of Unjustified Inconsistencies
[1] Varying Interpretations of Provisions of the Same Treaty
[2] Divergent Interpretation of Procedural Issues
[3] Varying Interpretations of Substantive Treaty Standards
[a] Fair and Equitable Treatment
[b] Umbrella Clause
[c] War Clause
§1.04 IMPACT OF INCONSISTENCY IN INVESTMENT ARBITRATION
§1.05 PROPOSALS TO ADDRESS INCONSISTENCY IN INVESTMENT ARBITRATION
[A] Tailoring Individual IIA
[B] Introducing a System of Precedent
[C] Prior Scrutiny of Award
[D] Appellate Mechanism
[E] Creating an International Court System
§1.06 CONCLUSION
Chapter 2 ISDS Reform in the EU: Are We There Yet?
§2.01 INTRODUCTION
§2.02 THE Achmea Ruling and Opinion 1/17
[A] Background of the Cases
[B] The Reasoning of the CJEU
[C] Where Do We Stand?
[1] Intra-EU BITs
[2] Extra-EU BITs
[3] FTAs and International Investments Agreements
§2.03 MULTILATERAL INVESTMENT COURT
§2.04 CONCLUSION
Chapter 3 The Path of (Re)volution of the International Investor-State Dispute Settlement Regime: A Case Study of Bosnia and Herzegovina
§3.01 INTRODUCTION
§3.02 ISDS REFORM AT THE GLOBAL LEVEL: UNCITRAL WG III
[A] Reform Options for Consistency, Correctness and Predictability of the Interpretation of Treaties and Principles of International Law
[B] Reform Options for Independence and Impartiality of the Arbitrators and Decision-Makers, Diversity and Transparency in ISDS
[C] Reform Options for Cost and Duration of ISDS Proceedings
§3.03 ISDS AT THE REGIONAL LEVEL: EU PERSPECTIVE POST-Achmea
§3.04 ISDS REFORM AT THE NATIONAL LEVEL: THE CASE OF BIH
[A] The Existing ISDS Framework in BiH
[B] The Future of ISDS in BiH as an EU Member State
[C] ISDS Reform Options for the Surviving BiH BITs
[D] ISDS Reform in BiH: Spotlight on Dispute Prevention and ADR
[E] Structured and Effective Amicable Settlement Provisions (Consultations, Negotiations, Mediation)
[F] Institutional Framework for Amicable Settlement Proceedings: Best Practices from Brazil and BiH
[1] Cooperation and Facilitation Investment Agreement in Brazil
[2] Permanent Negotiating Body for the Peaceful Settlement of International Investment Disputes in BiH
§3.05 CONCLUSION
Chapter 4 The 2015 India Model BIT and Its Suitability under ISDS
§4.01 INTRODUCTION
§4.02 DISPUTE RESOLUTION AND EXHAUSTION OF LOCAL REMEDIES
[A] Investment Arbitration in India under the 2003 India Model BIT
[B] Investment Regime Change in India
[C] Response to 2015 India Model BIT
§4.03 EXCLUSION OF MFN CLAUSE FROM THE 2015 INDIA MODEL BIT
[A] Importation of MFN Clauses for Dispute Resolution
[B] Suitability of MFN Clause in India's Current Investment Regime
§4.04 SHOULD INDIA BE A MEMBER OF THE ICSID?
§4.05 CONCLUSION
Chapter 5 Chronicles of Middle East in Investor-State Arbitration: Autopsy of Prevalent Practice Trends and Future Epidemic Challenges
§5.01 INTRODUCTION
§5.02 EVOLUTION OF INVESTMENT TREATIES AND ISDS PROVISIONS IN THE MIDDLE EAST
[A] First Generation Treaties: A Perilous Path to Pass
[1] Substantive Rights and Guarantees
[2] Procedural Rights and Guarantees
[B] Transformation of the Treaties Signed by Middle East States
§5.03 FRAMEWORK OF INVESTOR-STATE ARBITRATION IN THE MIDDLE EAST
[A] Impact of the Arab Spring on Investment Arbitration Landscape
[B] Investment Arbitration under Middle East Multilateral Treaties
[1] Unified Agreement for the Investment of Arab Capital in the Arab Countries
[a] Ad Hoc Arbitration: Al Kharafi v. Libya
[b] The AIC
[2] Agreement on Promotion, Protection and Guarantee of Investments Among Member States of the Organization of the Islamic Conference
[C] Prevalent Issues of ISDS Claims in the Middle East
[1] Interest and Lost Profits under the Laws of Middle Eastern States
[2] Consolidation and Consistency: Orascom and OTH Cases Against Algeria
[3] Enforcement of Investment Arbitration Awards
§5.04 POSITIONS AND CONTRIBUTIONS OF MIDDLE EAST STATES FOR ISDS REFORM
[A] Investment Disputes Prevention Policies
[B] Contributions of Middle East States to ISDS Reform
§5.05 CONCLUSION
CHAPTER 6 The Rise of NAFTA 2.0: A Case Study in Effective ISDS Reform
§6.01 INTRODUCTION
§6.02 NAFTA: HISTORIC CONTEXT AND FEATURES OF ITS CHAPTER 11 ISDS MECHANISM
[A] NAFTA's Context and Objectives
[B] NAFTA's Chapter 11 ISDS Mechanism
[C] NAFTA: General Experiences under and Criticisms of Chapter 11
[D] Experiential Reality: NAFTA Claims Pursued Against the US and Canada
[1] Loewen Group, Inc. et al. v. United States
[2] Methanex Corporation v. United States
[3] Eli Lilly and Company v. Canada
[4] Relevant Observations
§6.03 THE RISE OF USMCA AND KEY REVISIONS WITHIN ITS CHAPTER 14
[A] Social, Economic, and Political Context for USMCA's Development
[B] USMCA's Chapter 14 and Noteworthy Shifts
§6.04 CONCLUSION: FRAMING USMCA'S DEVELOPMENT WITHIN THE GLOBAL ISDS DEBATE
CHAPTER 7 Reshaping Investor-State Dispute Settlement Through an Appellate Review Mechanism
§7.01 INTRODUCTION
§7.02 ADVANTAGES AND DISADVANTAGES OF AN APPELLATE REVIEW MECHANISM
[A] Advantages Vis-à-Vis Annulment
[B] Advantages Vis-à-Vis a Multilateral Investment Court
[C] Disadvantages of a Multilateral Court of Appeal
§7.03 NATURE AND SCOPE OF AN ISDS APPELLATE BODY
[A] Nature of the Appeal Mechanism
[B] Grounds for Appeal
§7.04 COMPOSITION AND STRUCTURE OF AN ISDS APPELLATE BODY
[A] Re-edifying the Selection and Appointment Process: Roster Versus Standing Body
[1] Standing or Permanent Appellate Body
[2] Semi-Standing or Roster Model
[B] Qualifications, Diversity, Independence and Impartiality
[C] Remuneration
§7.05 OPTIONS FOR ESTABLISHING AN APPELLATE REVIEW MECHANISM
[A] The Treaty-Specific Approach
[B] The Multilateral Alternative
§7.06 CONCLUSION
CHAPTER 8 Arbitrator-Made (Jurisdictional) Law in Investment Treaty Arbitration: Application, Creation and Control
§8.01 INTRODUCTION
§8.02 ARBITRATOR-MADE JURISDICTIONAL RULES
§8.03 APPLICATION
§8.04 CREATION
§8.05 CONTROL
§8.06 CONCLUSION
CHAPTER 9 State Responsibility for Acts of State-Controlled Entities in Investor-State Dispute Settlement
§9.01 INTRODUCTION
§9.02 ANTECEDENTS TO THE 2001 DARSIWA
[A] Belgium v. Spain (Barcelona Traction)
[B] Trendtex Trading Corporation v. Central Bank of Nigeria
[C] Jurisprudence of the Iran-United States Claims Tribunal
[D] Emilio Maffezini v. Kingdom of Spain
§9.03 THE 2001 DARSIWA
§9.04 POST-2001 DARSIWA ADJUDICATION IN ISDS: SELECTED DECISIONS
§9.05 CONCLUSION
CHAPTER 10 Striking Back: An Investor's Right to Confront Its Home State's Decision to Terminate Investment Protection Agreements
§10.01 INTRODUCTION
§10.02 SETTING THE STAGE
[A] State Obligations Intended to Induce Investment
[B] The Promise to Arbitrate
[C] IIA Building Blocks
§10.03 DO INVESTORS BENEFIT FROM RIGHTS OR MERELY PRIVILEGES?
[A] The Sugar Cases
[1] ADM
[2] CPI
[3] Cargill
[B] Evaluating the Sugar Cases
[C] Rights and Duties
[D] Substantive Versus Procedural Rights: A False Dichotomy
[E] Lex Arbitri
[F] Seat Theory
[G] Contractual Aspect of Arbitration Agreements
§10.04 THIRD-PARTY RIGHTS
[A] Third-Party Beneficiaries under the Common Law and Civil Law
[B] The Second Restatement of the Law of Contracts
[C] Third-Party Beneficiaries under Civil Law
[D] Third-Party Beneficiaries as General Principles of Law
[E] Transposing the General Principle of Third-Party Beneficiaries to IIAs
§10.05 INVESTORS ARE OWED DUTIES, WHICH TRANSLATE INTO RIGHTS
[A] Separability
§10.06 CONCLUSION
CHAPTER 11 Reappraising Access to Justice in ISDS: A Critical Review on State Recourse to Counterclaim
§11.01 INTRODUCTION
§11.02 WHAT DOES A COUNTERCLAIM PROMOTE?
§11.03 A LEGAL BASIS FOR A STATE TO ASSERT COUNTERCLAIMS
§11.04 EXTENDING TRIBUNAL'S JURISDICTION: A CLOSE CONNECTION TEST FOR ADMISSIBILITY OF A COUNTERCLAIM
§11.05 THE REQUIREMENT OF EXPRESS CONSENT IN THE BIT
§11.06 SOURCES OF THE INVESTOR'S OBLIGATIONS
§11.07 UNILATERAL CHARACTER OF BITS
§11.08 SUBSTANTIVE AND PROCEDURAL NON-COMPLIANCE
§11.09 ENHANCING THE STATE'S ACCESS TO JUSTICE: A WAY FORWARD
§11.10 CONCLUSION
CHAPTER 12 Time for a Clean Energy Charter Treaty? Examining the Role of ISDS in Promoting and Protecting Renewable Energy Investments
§12.01 INTRODUCTION
§12.02 CONTEXT
§12.03 REGULATORY AND POLITICAL RISK IN THE RENEWABLE ENERGY SECTOR
[A] The Need for Further Investment in Low-Carbon Energy
[B] The Ongoing Need for Supportive, Stable Political and Regulatory Conditions
§12.04 THE ECT AND INVESTMENTS IN THE RENEWABLE ENERGY SECTOR
[A] Background to the ECT
[B] How Does the ECT Protect Renewable Energy Investments from Adverse Regulatory and Political Changes?
[C] The Interpretation of Available Protections in Cases Involving Renewable Energy Investments
§12.05 THE ABILITY OF THE ECT TO PROMOTE THE INFLOW OF FOREIGN CAPITAL AND TECHNOLOGY IN THE FIELD OF RENEWABLE ENERGY
§12.06 MODERNIZATION OF THE ECT
[A] Common Criticisms of the ECT
[B] Could Criticisms of the ECT Be Addressed with Improved Drafting?
§12.07 THE LIKELIHOOD OF FURTHER WITHDRAWAL FROM THE ECT
§12.08 CONCLUSION
CHAPTER 13 Addressing Financial Access to Justice in Investment Treaty Arbitration
§13.01 THE STRUCTURAL PROBLEM IN ISDS
§13.02 CLASSIC THIRD-PARTY FUNDING IN ISDS
§13.03 NOT-FOR-PROFIT THIRD-PARTY FUNDING IN ISDS
§13.04 PROPOSALS FOR FINANCIAL ACCESS TO JUSTICE IN ISDS
§13.05 CONCLUSION
CHAPTER 14 Regulating Third-Party Funding in Investor-State Arbitration Through Reform of ICSID and UNCITRAL Arbitration Rules: Holding Global Institutions to Their Development Mandates
§14.01 INTRODUCTION
§14.02 THE NATURE OF TPF IN ISDS AND THE OBJECTIVES OF TPF REGULATION
[A] What Is TPF?
[B] How Is TPF Used in ISDS?
[C] What Are the Objectives of TPF Regulation?
§14.03 WHAT IS REQUIRED TO EFFECTIVELY RESTRICT OR REGULATE TPF IN ISDS?
[A] Treaty-Based TPF Reform
[1] New and Future Treaties
[2] Existing Treaties
[B] Restricting or Regulating TPF Through Reform of Arbitration Rules
[C] Additional Considerations Related to Domestic Law
§14.04 ICSID AND UNCITRAL RULE REFORM AS A PRIORITY
[A] Why ICSID and UNCITRAL and Why Now?
[B] ICSID Rule Reform
[C] UNCITRAL Arbitration Rules Reform
[D] Reform of Other Arbitration Rules
§14.05 CONCLUSION
CHAPTER 15 Alternatives to Arbitration in Reforming Investor-State Dispute Settlement
§15.01 INTRODUCTION
§15.02 ALTERNATIVES TO ARBITRATION IN STATE PRACTICES PERTAINING TO SETTLING INVESTMENT DISPUTES
§15.03 DISCUSSIONS AT UNCITRAL: THE CONTEXT
§15.04 DISCUSSIONS AT UNCITRAL: THE PROPOSED REFORMS
[A] Mediation and Conciliation: The Current Practice, Prospects and Potential Challenges
[B] Domestic Courts, Their Interface with Arbitration and Their Role as an Alternative
[C] State-to-State Mechanisms for Investment Dispute Settlement
§15.05 CONCLUSION
CHAPTER 16 Mediation as a Method to Settle International Trade and Investment Disputes
§16.01 INTRODUCTION
§16.02 MEDIATION IN INTERNATIONAL TRADE DISPUTES
[A] Statistics on ICC Mediations
[B] From Arbitration to Mediation Proceedings
§16.03 UNCITRAL MEDIATION INSTRUMENTS
[A] The Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation 2018
[B] The Singapore Convention
[C] UNCITRAL Mediation Rules
[D] UNCITRAL Notes on Mediation
[E] UNCITRAL WG III on Possible ISDS Reform
§16.04 MEDIATION AND CONCILIATION IN INVESTMENT DISPUTES
[A] ICSID Rules
[B] Statistics on ICSID Conciliations
[C] Conduct of an ICSID Convention Conciliation
[D] Proposal for New ICSID Mediation Rules
[E] Mediation Provisions in Investment Treaties
[F] Permanent Court of Arbitration
[G] Stockholm Chamber of Commerce
[H] International Chamber of Commerce
[I] IBA Rules for Investor-State Mediation
§16.05 CONCLUSION
CHAPTER 17 The Duty to Mitigate: A Billion Dollar Mystery of General Principles of Law
§17.01 INTRODUCTION
§17.02 THE DUTY TO MITIGATE IN DOMESTIC AND TRANSNATIONAL LAWS
[A] General Principles of Law: A Methodological Note
[B] The Duty to Mitigate: A General Principle of Law?
[C] The Standard of Due Diligence Required in Mitigation
§17.03 THE DUTY TO MITIGATE IN INTERNATIONAL INVESTMENT ARBITRATION
[A] Preliminary Issue: Mitigation as Liability or/and Quantum?
[B] The Standard of Due Diligence in Mitigation in International Investment Law
[C] Reforms and Related Appeal Mechanisms: The Way Forward for More Clarity on the Duty to Mitigate?
§17.04 CONCLUSION
CHAPTER 18 Challenges in Quantifying Damages: Are Damages Getting the Treatment They Deserve by Investor-State Tribunals?
§18.01 INTRODUCTION
§18.02 THE SCOPE OF AN ARBITRAL TRIBUNAL'S POWER TO AWARD DAMAGES
[A] Legal Basis for the Tribunal's Power to Award Damages
[1] International Investment Agreements
[2] Customary International Law
[a] ILC's Articles on Responsibility of States for Internationally Wrongful Acts
[b] Jurisprudence of International Courts and Tribunals
[c] Resolutions of the UN General Assembly
[3] General Principles of Law
[4] Body of Case Law of International Tribunals
[B] Are Arbitral Tribunals Obliged to Justify Their Award of Damages?
§18.03 WEAKNESSES OF THE CURRENT SYSTEM
[A] Inflation of Claims
[B] Lack of Sufficient Reasoning
[C] Perception of Unfair and Unrealistic Compensation: The Case of Tethyan v. Pakistan
[D] Are Arbitrators Well-Equipped to Handle Valuation?
§18.04 PROPOSED WAY FORWARD
[A] Increase the Use of Tribunal-Appointed Experts
[B] Is the Answer in US Court Litigation? The Example of Appraisal Litigation in the State of Delaware
[C] Institutional Proposals for Reform
§18.05 CONCLUSION
CHAPTER 19 Improving Post-award Efficiency: Proposed Reforms to the ICSID Annulment Process
§19.01 INTRODUCTION
§19.02 OVERVIEW OF THE POST-AWARD REGIME
[A] Supplementation, Rectification, Interpretation, and Revision
[B] Annulment
§19.03 CONTEMPORARY ISSUES
[A] Annulment-Related Delays
[B] Impact on Enforcement
§19.04 ENHANCING POST-AWARD EFFICIENCY
[A] Encourage Use of Post-award Remedies Other Than Annulment under the ICSID Convention
[B] Impose and Enforce Time Limits on the Annulment Process
[C] Socialize the Limited Scope of Post-award Remedies
[D] Use of ICSID Arbitration Rule 41(5)
§19.05 CONCLUSION
CHAPTER 20 Enforcement of Investment Court Decisions under the New York Convention: A Search for Defining Elements
§20.01 INTRODUCTION
§20.02 ENFORCEMENT AND THE TERMS OF THE NEW YORK CONVENTION
[A] Requirement of a 'Foreign' Award
[B] Requirement of an 'Agreement in Writing'
§20.03 COMPARISON TO WTO ARBITRATION
[A] Systemic Considerations
[B] Specific Forms of WTO Arbitration
§20.04 CONCLUSIONS
Index

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