Permanent Investment Courts

Permanent Investment Courts
Author: Güneş Ünüvar
Publisher: Springer Nature
Total Pages: 156
Release: 2020-09-17
Genre: Law
ISBN: 3030456846

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This special issue focuses on the opportunities and challenges connected with investment courts. The creation of permanent investment courts was first proposed several decades ago, but it has only recently become likely that these proposals will be implemented. In particular, the European Commission has pushed for a court-like mechanism to resolve investment disputes in various recent trade and investment negotiations. Such a framework was included in some free trade agreements (FTAs) and investment protection agreements (IPAs) the European Union (EU) signed or negotiated with Vietnam, Singapore, Mexico and Canada. While it was shelved long before the publication of this Special Issue, the European Commission had also formally proposed a court system during the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) agreement with the United States. The issue of a Multilateral Investment Court (MIC) has also been prevalent at the Working Group III proceedings of the UNCITRAL on investor-State dispute settlement reform, attracting scholarly and public attention.Will these developments lead to the creation of permanent investment courts? How will such courts change the future of international investment law? Will they bring about a real institutional change in adjudicatory mechanisms? Will they introduce a 'hybrid' system, which borrows important characteristics from both arbitration and institutional methods of international adjudication? How will the enforcement mechanisms work, and under which rules of ethics will its adjudicators function and exercise their duties? This special issue brings together leading scholars sharing a common interest in investment courts to address these questions.

Permanent Investment Courts and the EU Legal Order

Permanent Investment Courts and the EU Legal Order
Author: Eleftheria Neframi
Publisher:
Total Pages: 20
Release: 2020
Genre:
ISBN:

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In the external action of the Union, the establishment of permanent investment courts is not only part of the common commercial policy, but also an expression of the objective to promote the rule of law and to act as an influential actor in international procedural law. Through its participation in agreements establishing a bilateral investment court system (ICS) and in the negotiation of the convention establishing a Multilateral Investment Court (MIC), the Union aims to promote its own standards of judicial protection while preserving the constitutional framework at the basis of the principle of autonomy. The present paper deals with the question of division of competences, especially in the context of the establishment of a MIC and in the allocation of international responsibility in Investor-State Dispute Settlement (ISDS) mechanisms. Moreover, it discusses the scope of fundamental principles of the EU legal order through the position of the Court of Justice in Opinion 1/17 and the analysis of the compatibility of the ICS with primary EU law. While the principles of conferral and of the autonomy of the EU legal order impose constraints to the external action of the Union, their scope is at the same time interpreted in a way to accommodate their guarantee with the EU's objective to contribute to the major reform of the ISDS. In that way, the guarantee of the EU legal order's constitutional requirements is not necessarily a limit to the efficiency of the Union's external action.

From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court

From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court
Author: Marc Bungenberg
Publisher: Springer Nature
Total Pages: 222
Release: 2019-09-11
Genre: Law
ISBN: 3662597322

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This open access book considers the potential setup for a future Multilateral Investment Court (MIC). The option of an MIC was first discussed by the EU Commission in 2016 and has since been made an official element of the EU Common Commercial Policy. In 2017, UNCITRAL also decided to discuss the possibility of an MIC, and on 20 March 2018, the Council of the EU gave the EU Commission the mandate to negotiate the creation of an MIC. The “feasibility study” presented here is intended to contribute to a broader discussion on the options for a new international court specialized in investment protection. The cornerstones of such a new permanent court are a strict orientation on the rule of law, reduced costs of investment protection, transparency considerations, aspects of consistency in case law, and the effective enforceability of MIC decisions.

From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court

From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court
Author: Marc Bungenberg
Publisher: Springer
Total Pages: 213
Release: 2018-10-22
Genre: Law
ISBN: 3030011895

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This book considers the potential setup for a future Multilateral Investment Court (MIC). The option of an MIC was first discussed by the EU Commission in 2016 and has since been made an official element of the EU Common Commercial Policy. In 2017, UNCITRAL also decided to discuss the possibility of an MIC, and on 20 March 2018, the Council of the EU gave the EU Commission the mandate to negotiate the creation of an MIC. The “feasibility study” presented here is intended to contribute to a broader discussion on the options for a new international court specialized in investment protection. The cornerstones of such a new permanent court are a strict orientation on the rule of law, reduced costs of investment protection, transparency considerations, aspects of consistency in case law, and the effective enforceability of MIC decisions.

Regulatory Freedom and Indirect Expropriation in Investment Arbitration

Regulatory Freedom and Indirect Expropriation in Investment Arbitration
Author: Aniruddha Rajput
Publisher: Kluwer Law International B.V.
Total Pages: 250
Release: 2018-12-20
Genre: Law
ISBN: 9403506253

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Many investment arbitration cases involve a challenge to a regulatory measure of a host state on the basis of indirect expropriation. The practice of arbitral tribunals is diverse and unsettled. In recent years States have been trying to clarify the relationship between regulatory freedom (also known as 'police powers') and indirect expropriation by revising provisions on indirect expropriation in their investment treaties. This book provides the first focused analysis of indirect expropriation and regulatory freedom, drawing on a broad range of the jurisprudence of investment tribunals. The nature of regulatory freedom in international law has been explained on the bases of jurisprudence of international courts and tribunals such as the International Court of Justice (ICJ), Permanent Court of International Justice (PCIJ), dispute resolution bodies of the World Trade Organisation (WTO), European Court of Human Rights. While showing how cases involving standoff between regulatory freedom and indirect expropriation can be resolved in practice, the book goes on to present a conceptual framework for interpreting the nuances of this relationship. The book provides a detailed responses to the following complex questions: • To what extent do states retain regulatory freedom after entering into investment treaties? • What is the scope of regulatory freedom in general public international law? • What are the elements of regulatory freedom and standard of review? • How to draw a dividing line between regulatory freedom and indirect expropriation? • Whether the sole effects doctrine or the police powers is the appropriate method for distinguishing between regulatory freedom and indirect expropriation? While addressing these questions, the author analyses different theoretical approaches that reflect upon the relationship between regulatory freedom and indirect expropriation and how far they assist in understanding these potentially overlapping concepts; their relationship with each other; and the method for distinguishing between them. Given the dense network of around three thousand bilateral investment treaties (BITs) that impose an obligation to protect foreign investments in a State, this book will help practitioners identify, through analysis of cases from diverse fields, how a situation may be categorized either as regulatory freedom or as indirect expropriation. The analysis will also be of value to government officials and lawyers involved in negotiating and re-negotiating investment treaties, and to arbitrators who have to decide these issues. Scholars will welcome the book's keen insight into the contentious relationship between a customary international law norm and a treaty norm.

Draft Statute of the Multilateral Investment Court

Draft Statute of the Multilateral Investment Court
Author: Marc Bungenberg
Publisher:
Total Pages: 80
Release: 2021-02-15
Genre:
ISBN: 9783848770830

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The EU is aiming for a Multilateral Investment Court (MIC) to replace the existing investment arbitration system. Based on the current debates in UNCITRAL and other fora this Draft Statute of an MIC demonstrates that it is possible to have a new system of dispute settlement. For the first time, a complete draft agreement is presented for the design of such an MIC as a new international organization, implementing strict rule of law-requirements for dispute settlement. Besides rule of law-considerations, cornerstones are reduced costs, a permanent bench of judges with an appellate system, transparency, more consistency in case law as well as the effective enforceability of MIC decisions.

Reshaping the Investor-State Dispute Settlement System

Reshaping the Investor-State Dispute Settlement System
Author: Jean E. Kalicki
Publisher: Hotei Publishing
Total Pages: 1043
Release: 2015-02-04
Genre: Law
ISBN: 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.

The ICSID Convention

The ICSID Convention
Author: Christoph Schreuer (juriste)
Publisher: Cambridge University Press
Total Pages: 1599
Release: 2009
Genre: Arbitration and award
ISBN: 0521885590

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This is a practice-oriented guide, including text, commentary, tables and index, for anyone dealing with the International Centre for Settlement of Investment Disputes (ICSID).

New Ways of Dispute Resolution in Investment Protection Cases

New Ways of Dispute Resolution in Investment Protection Cases
Author: Zsófia Deli
Publisher:
Total Pages: 18
Release: 2018
Genre:
ISBN:

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The European Union, post-Lisbon, rose as a powerful new player in the field of investment treaty making when 'Foreign Direct Investment' in a shift from previous member state competence was included in exclusive EU competence as part of the common commercial policy (Article 207(1) TFEU). Those who expected that the European Union's appearance in the international investment arena would also radically alter the existing regime of dispute resolution apparently proved to be right. At least this is what transpires from the texts of the most recent free trade agreements to be entered into by the EU with Canada and the United States respectively, which envisage the set-up of a two-tier semi-permanent investment body for the resolution of investment disputes arising under the agreements. This novel dispute resolution system, which marks a clear break from the traditional investor-state dispute settlement mechanisms relying on treaty-based arbitration, understandably stands in the crossfire of heated professional debate and public attention. This is all the more so understandable when the European Commission shows the commitment to move towards establishing a permanent "multilateral investment court" with an even wider-scale impact. This paper aims at presenting an in-depth analysis of the envisaged "investment court system" while examining, in contrast, the traits, shortcomings and legitimacy of traditional dispute settlement mechanisms applied in investment protection cases.

Arbitrating the Conduct of International Investors

Arbitrating the Conduct of International Investors
Author: Jose Daniel Amado
Publisher: Cambridge University Press
Total Pages: 221
Release: 2018-01-11
Genre: Law
ISBN: 1108244866

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Investment arbitration has emerged from modest beginnings and matured into an established presence in international law. However, in recent years it has drifted from the reciprocal vision of its founders. This volume serves as a comprehensive guide for those who wish to reform international investment law from within, seeking a return to the mutuality of access that is in arbitration's essence. A detailed toolset is provided for enhancing the access of host States and their nationals to formal resolution mechanisms in foreign investment disputes. It concludes by offering model texts to achieve greater reciprocity and access to justice in the settlement of disputes arising from international investment initiatives. The book will appeal to all those interested in the future of international investment law, including an international audience of scholars, government officials, private sector actors, and private citizens alike, and including diverse constituencies, communities, and collectives of host State nationals.