The Investor-State Dispute Settlement System
The Investor-State Dispute Settlement System

Author: Alan M. Anderson

Publisher: Kluwer Law International B.V.

Published: 2020-11-27

Total Pages: 441

ISBN-13: 9403518103

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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.

Investor-State Dispute Settlement between Developed Countries
Investor-State Dispute Settlement between Developed Countries

Author: William S. Dodge

Publisher:

Published: 2012

Total Pages: 37

ISBN-13:

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Free Trade Agreements between developed countries now frequently contain provisions on investor protection, but the resolution of disputes remains problematic. Chapter 11 of the North American Free Trade Agreement (NAFTA) allows investors to bring direct claims against a host State before an international tribunal without exhausting domestic remedies. This has resulted in a number of claims against the United States by Canadian investors and against Canada by U.S. investors. Chapter 11 of the Australia-United States Free Trade Agreement (AUSFTA) does not permit direct claims, relying instead on a State-to-State dispute resolution mechanism. This paper reviews the evolution of investment-dispute resolution from diplomatic protection to NAFTA and AUSFTA. It suggests that because developed countries have developed legal systems capable of resolving investment disputes expeditiously and without bias, it should be possible to marry the advantages of direct claims with those of the local remedies rule, allowing investors to enforce their own rights under a treaty but requiring them to do so in domestic courts first.

Investor-state Dispute Settlement and Impact on Investment Rulemaking
Investor-state Dispute Settlement and Impact on Investment Rulemaking

Author: United Nations Conference on Trade and Development

Publisher: United Nations Publications

Published: 2007

Total Pages: 128

ISBN-13:

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The aim of this study is to take stock of and to analyse the major developments in the interpretation of procedural and substantive international investment agreement (IIA) provisions as contained in bilateral investment treaties and economic integration agreements with investment provisions. It addresses the implications of those developments for countries, emphasizing the particular needs of developing countries. It presents some conclusions and reflections on possible next steps that countries could take to implement the lessons learned from the investor-State dispute settlement experience.

The Future of Investor-State Dispute Settlement
The Future of Investor-State Dispute Settlement

Author: Ben Beaumont

Publisher: Kluwer Law International B.V.

Published: 2024-02-13

Total Pages: 255

ISBN-13: 9403547731

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What makes investor-State dispute settlement (ISDS) as dynamic a field as it is – especially in comparison with international commercial arbitration – is its uncanny ability to engage directly with the most topical and pressing issues of the day, including human rights, regulation of the energy sector, and climate change and the environment more generally. This book provides a deep dive into the reality behind the causes and effects of the expressed concerns regarding ISDS and the extent to which they can and have been addressed by ongoing reform processes at national, regional, and international levels. Deeply informed insights from leading scholars and practitioners on the status quo and perspectives of ISDS shed clear light on such aspects as the following: reform instruments adopted at the UNCITRAL Working Group III; issues surrounding the legitimacy of ISDS; dispute prevention and amicable settlement mechanisms; the proposed multilateral investment court; implications of climate change and energy transition for investment policies and disputes; recent regional trends in policymaking and perspectives; the ICSID-UNCITRAL Code of Conduct; investment protection standards and dispute resolution mechanisms in recent international investment treaties; viability of the modernized Energy Charter Treaty; use of artificial intelligence; and participation of civil society organizations. As an in-depth analysis of the most recent developments in international investment law and dispute resolution, this book offers a realistic view of the reform processes, thus underlining the necessary legal and institutional measures that will translate into real-life effects in the future. With its help, policymakers and government officials will identify ongoing trends and anticipate risks that require intervention, while practitioners and the broader dispute resolution community will find valuable information about the evolving contours of investment protection treaties and ISDS. For academics and civil society organizations interested in the developments and implications of ISDS, the book provides factual, nuanced, and effective analysis of the relevant issues.

Second Thoughts
Second Thoughts

Author: Armand de Mestral

Publisher: McGill-Queen's Press - MQUP

Published: 2017-01-30

Total Pages: 413

ISBN-13: 1928096395

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Criticism. Doubts. Second thoughts. Although investor-state arbitration (ISA) has been included in investment agreements between developed and developing countries since the 1960s, and provided foreign investors with a kind of private justice against developing world host states, it became increasingly controversial in developed countries when it was included in NAFTA in 1993, creating the possibility of ISA claims between and against two developed countries (the United States or Canada), as well as claims against and by a developing state (Mexico). A few years later, the OECD’s attempt to finalize the Multilateral Agreement on Investment was stymied by concerted civil society protest and opposition to ISA, and in recent years each new proposed agreement has sparked fresh rounds of protest. What engenders the controversy about ISA? While ISA’s advantage is that it prevents escalation of international conflict by relieving states from feeling obliged to espouse claims of injured investors against foreign governments, it is criticized for creating regulatory chill whereby states are reluctant to make necessary public policy reforms for fear that changes to the investment environment will lead to expensive investor claims. Are fears of litigation and expensive payouts well founded? Can key modifications to the ISA system, such as those added to the Comprehensive Economic and Trade Agreement satisfy critics and redeem this system of private justice? Is ISA really necessary between developed democracies where an independent and professional judiciary can generally be trusted to decide without fear or favour? In Second Thoughts: Investor-State Arbitration between Developed Democracies, 16 international investment legal experts have undertaken in-depth analyses of ISA’s economic, political, and social impacts when included in agreements between developed democracies. This timely volume appears at a critical moment, seeking answers to the crucial questions that will determine the next generation of international investment agreements.

Investor-State Dispute Settlement
Investor-State Dispute Settlement

Author: Scott Miller

Publisher: Rowman & Littlefield

Published: 2015-02-02

Total Pages: 41

ISBN-13: 1442240733

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Investor-State Dispute Settlement (ISDS) is a provision in Bilateral Investment Treaties (BITs) and other international investment agreements that allows investors to enter arbitration with states over treaty breaches. ISDS has become controversial in the United States and our negotiating partners; critics, including some governments, have argued that ISDS is unnecessary, while others insist it is illegitimate as public policy. Treaty-based investment protection represents a major advance in the fair treatment of aliens and the peaceful resolution of disputes. Given the alternatives, withdrawing from investment treaties—the logical conclusion of the critics’ position—would likely have negative consequences for economic growth and the rule of law. This report is an empirical review of ISDS, based on the record of disputes under existing investment treaties.

Handbook of Research on Energy and Environmental Finance 4.0
Handbook of Research on Energy and Environmental Finance 4.0

Author: Rafay, Abdul

Publisher: IGI Global

Published: 2022-02-18

Total Pages: 545

ISBN-13: 179988211X

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Energy and environmental finance (EEF) is an emerging global phenomenon. During the last few decades, many countries started monitoring EEF practices. Major components of these practices include costs, fraud, scandals, and more. Among several problems, the most prevalent is the lack of awareness about the issues of EEF among various stakeholders. The Handbook of Research on Energy and Environmental Finance 4.0 is an international reference that provides understanding and lessons learned in all aspects of EEF in individual, organizational, and societal experiences. This book examines research in the shape of experience, implementation, and application. Covering topics such as clean power, energy poverty, and environmental degradation, this book is a dynamic resource for academicians, researchers, professionals who work within the domains of EEF, EEF regulators, scholars of EEF, managers involved in EEF organizations, law practitioners involved in EEF regulations, auditors involved in audit and control systems of EEF, university professors, and students pursuing studies and research in EEF.

Investor-State Dispute Settlement and the Regulatory Autonomy of Host States: an Analysis Through the Effect of ISDS on Foreign Direct Investment
Investor-State Dispute Settlement and the Regulatory Autonomy of Host States: an Analysis Through the Effect of ISDS on Foreign Direct Investment

Author: Madwa-Nika Phanord-Cadet

Publisher:

Published: 2017

Total Pages: 102

ISBN-13:

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This paper studies how the dispute resolution model currently institutionalized in the vast majority of international investment agreements (IIAs) and free trade agreements (FTAs) may affect states' ability and leeway to legislate and regulate in the public interest. To explore this topic through quantitative methods, this paper elaborates on the empirically testable hypothesis that being an unreliable host state through involvement in the institution of investment arbitration decreases foreign direct investment inflows (FDIs). I test this hypothesis during the year of initiation of cases against host countries and during subsequent years, verify if the outcome of original proceedings, i.e. the number of cases decided in favor of the state or the investor in any given year, substantially affects my dependent variable, and assess the differential effect of low-income, middle-income or high-income countries. I create a panel of 109 developed and developing countries, covering the 1993 to 2015 period, using data extracted from the United Nations Conference on Trade and Development (UNCTAD) and the World Bank. I find that, for all the countries that have been a respondent party in investor-state dispute settlement, a positive statistically significant relationship between this variable and investment inflows can be observed during the year of initiation of cases, potentially showing confidence in an effective and credible international court system. On the year the award was promulgated, cases decided in favor of investors still show a statistically significant positive relationship, while cases decided in favor of states significantly decrease foreign direct investment, controlling for economic explanatory variables. For lower developed countries in my sample, being an unreliable host state through involvement in the institution of investment arbitration does decrease foreign direct investment (FDI) inflows, even on the year of initiation of the case, and this relationship is statistically significant. Since ISDS has been incorporated in international investment agreements to protect investors doing business in countries with weaker institutions, those results could give substance to the view that lower-income countries need to worry more about their regulatory sovereignty than higher-income countries with broader economic leverage that violate their obligations.

Reshaping the Investor-State Dispute Settlement System
Reshaping the Investor-State Dispute Settlement System

Author: Jean E. Kalicki

Publisher: Hotei Publishing

Published: 2015-02-04

Total Pages: 1043

ISBN-13: 9004291105

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In Reshaping the Investor-State Dispute Settlement System: Journeys for the 21st Century, editors Jean E. Kalicki and Anna Joubin-Bret offer for the first time a broad compendium of practical suggestions for reform of the current system of resolving international investment treaty disputes. The increase in cases against States and their challenge to public policy measures has generated a strong debate, usually framed by complaints about a perceived lack of legitimacy, consistency and predictability. While some ideas have been proposed for improvement, there has never before been a book systematically focusing on constructive paths forward. This volume features 38 chapters by almost 50 leading contributors, all offering concrete proposals to improve the ISDS system for the 21st century.

Shadow Courts
Shadow Courts

Author: Haley Sweetland Edwards

Publisher:

Published: 2016

Total Pages: 142

ISBN-13: 9780997126402

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"Haley Sweetland Edwards explains the history of global shadow courts and how these courts have spun out of control, threatening the interests of citizens everywhere including the United States. Her fantastic book is exactly what long-form journalism is meant to do, to move beyond current events and provide historical perspective that aims at future reform. SHADOW COURTS should be at the top of the reading list of all those interested in redesigning trade agreements to be in the publicinterest." -- Jeffrey D. Sachs, University Professor, Columbia University and author ofThe End of Poverty International trade deals have become vastly complex documents, seeking to govern everything from labor rights to environmental protections. This evolution has drawn alarm from American voters, but their suspicions are often vague. In this book, investigative journalist Haley Sweetland Edwards offers a detailed look at one little-known but powerful provision in most modern trade agreements that is designed to protect the financial interests of global corporations against the governments of sovereign states. She makes a devastating case that Investor-State Dispute Settlement -- a "shadow court" that allows corporations to sue a nation outside its own court system -- has tilted the balance of power on the global stage. Acorporation can use ISDS to challenge a nation's policies and regulations, if it believes those laws are unfair or diminish its future profits. From the 1960s to 2000, corporations brought fewer than 40 disputes, but in the last fifteen years, they have brought nearly 650 -- 54 against Argentina alone. Edwards conducted extensive research and interviewed dozens of policymakers, activists, and government officials in Argentina, Canada, Bolivia, Ecuador, the European Union, and in the Obama administration. The result is a major story about a significant shift in the global balance of power.