Abstract
The present article responds to the critical perspective Kate Miles offers on international investment law in her article “Investor-State Dispute Settlement: Conflict, Convergence, and Future Directions”, published in this Yearbook. While sharing several concerns Miles identifies, and supporting present reform efforts to make the system more transparent, increase possibilities of involvement for third parties, and ensure policy space, this article presents a generally positive perspective on the foundations of international investment law. It argues that the present system has to be seen as a mechanism to subject international investment relations to the international rule of law, with investor-state arbitration providing a form of access to justice to foreign investors in cases where domestic courts are not sufficiently well-placed to effectively control government action and enforce investment treaty obligations. The system, in other words, vindicates fundamental values of a just world order under law. Furthermore, the article argues that Miles paints a misleading picture of the power arbitrators exercise in the interpretation and application of investment treaties. Rather than developing the system to the detriment of public interests, arbitrators are subject to numerous mechanisms of state control; moreover, they regularly apply interpretative techniques that are respectful of public interests. Finally, the article discusses the cases Kate Miles presents as pathologies of the system and argues that they are not encroachments on governments’ policy space, but involve legitimate disputes that are appropriate for resolution in an international forum.
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Notes
- 1.
Koskenniemi M (2006) Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission, International Law Commission, UN Doc A/CN.4/L.682, http://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf (last accessed 28 September 2015), para. 8.
- 2.
- 3.
This is most emblematically reflected in the online public consultation on investment on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP) the European Commission conducted from 27 March to 13 July 2014, which elicited close to 150,000 replies, many of which were however submitted collectively through online platforms of opponents of ISDS that contained pre-defined answers. See Report of the European Commission, Commission Staff Working Document, SWD (2015) 3 final, 13 January 2015, http://trade.ec.europa.eu/doclib/docs/2015/January/tradoc_153044.pdf (last accessed 28 July 2015).
- 4.
This is how IIAs were often regarded by governments negotiating and parliaments ratifying the treaties. In fact, under-politicisation of the content and effect of investment treaties is a recurring theme in the study conducted by Poulsen L (2011) Sacrificing Sovereignty by Chance: Investment Treaties, Developing Countries, and Bounded Rationality. PhD Thesis, London School of Economics, http://etheses.lse.ac.uk/141/1/Poulsen_Sacrificing_sovereignty_by_chance.pdf (last accessed 29 September 2015).
- 5.
Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12 (registered 31 May 2012).
- 6.
Philip Morris Asia Limited (Hong Kong) v. The Commonwealth of Australia, UNCITRAL, Notice of Arbitration (21 November 2011).
- 7.
Lone Pine Resources Inc. v. The Government of Canada, UNCITRAL, Notice of Arbitration (6 September 2013).
- 8.
Thus, states protect and promote foreign investment in order to further their own policy goals, including the transfer of technology, the creation of employment, economic growth, and other development interests through instruments under domestic and international law. For an overview see UNCTAD (2012) World Investment Report 2012: Towards a New Generation of Investment Policies, http://unctad.org/en/PublicationsLibrary/wir2012_embargoed_en.pdf, (last accessed 15 October 2015), p. 97 ff.
- 9.
See Waibel et al. (2010).
- 10.
Brower and Schill (2009), p. 473 (with further references).
- 11.
- 12.
Miles (2016), section 1. In my own explanation of the criticism, I go a step further and read it as stemming from a clash between domestic constitutional values—democracy, the rule of law, and human or fundamental rights—and the basic institutional structures of ISDS. This framing helps not only to see better why investment law is facing such strong headwind, but also allows to draw parallels to the legitimacy debates, and possible solutions to it, that surround other forms of global governance rather than debates about the legitimacy of international commercial arbitration. See Schill (2011a, 2015a).
- 13.
- 14.
See European Commission, Press Release: Commission Proposes new Investment Court System for TTIP and Other EU Trade and Investment Negotiations, 16 September 2015, http://europa.eu/rapid/press-release_IP-15-5651_en.htm (last accessed 15 October 2015). For a succinct overview over the most recent reform debates and options more generally see UNCTAD (2015) World Investment Report 2015: Reforming International Investment Governance, http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf (last accessed 28 September 2015), p. 119 ff. See further, inter alia, the contributions in Kalicki and Joubin-Bret (2015).
- 15.
On the public nature of investment law see Schill (2010), p. 10 ff.
- 16.
Miles (2016), section 1.
- 17.
Miles (2016), section 1.
- 18.
Miles (2016), section 1.
- 19.
- 20.
See, for example, Golder v. United Kingdom, Judgment (21 February 1975), ECHR Series A No. 18, paras. 28–36 (interpreting Article 6(1) of the European Convention on Human Rights to grant a right to access to justice); Basic Law of the Federal Republic of Germany, Article 19(4); Constitution of the Italian Republic, Article 24; Spanish Constitution, Section 24(1); Political Constitution of the Republic of Chile, Article 20. On access to justice under international law see also the contributions in Francioni (2007).
- 21.
Cf. Lithgow and Others v. United Kingdom, ECtHR (Application No 9006/80, Series A102), Decision (8 July 1986), para. 201 (where the European Court of Human Rights held that Member States could comply with their obligation under Article 6(1) ECHR to provide access to justice by submitting disputes to an arbitral tribunal provided that the principles of fair trial and due process are guaranteed).
- 22.
The following discussion draws on Schill (2015c), pp. 628–633.
- 23.
Cf. Schwartz and Scott (2003), pp. 556–562.
- 24.
See Jandhyala and Weiner (2014) (showing that IIAs reduce the premium for political risk that would make foreign investment projects more costly). It is less clear, however, whether investment treaties on the whole are able to attract additional foreign investment. There is an increasing amount of studies on this topic, with diverging results. Contrast only Tobin and Rose-Ackerman (2009) (finding a positive correlation between investment agreements and investment flows) with Aisbett (2009) (negating a correlation between investment agreements and investment flows). In more recent and refined studies, however, evidence is becoming more robust that there is a positive correlation between investment agreements and the inflow of foreign investment. See, for example, Berger et al. (2012); Büthe and Milner (2014) (with further references).
- 25.
Particularly on reputation as a mechanism to induce States’ compliance with their obligations under international law see Guzman (2008), pp. 71–117.
- 26.
The underlying change in the incentive structure after one party has started performing or placed an asset under the control of the other party is also described as a hold-up problem. See Williamson (1985), p. 52 ff. See also Guzman (1998), p. 658 ff.; for a game-theoretic reconstruction see Cooter and Ulen (2004), p. 195 ff.
- 27.
Cf. Elkins et al. (2006), pp. 823–824.
- 28.
On corruption in the judiciary see Buscaglia and Dakolias (1999); Dakolias and Thachuk (2000). For the length of some court proceedings in the Member States of the Council of Europe see European Commission for the Efficiency of Justice, Length of Court Proceedings in the Member States of the Council of Europe Based on the Case Law of the of the European Court of Human Rights, December 2006, http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/CEPEJCourtDelayEnglishUPDATED.doc (last accessed 17 October 2013).
- 29.
For a commonly cited example of a court in a developed legal system engaging in biased and discriminatory conduct vis-à-vis a foreign investor see Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Award (26 June 2003).
- 30.
See, amongst others, Sürmeli v. Germany, ECtHR (Application No 75529/01), Decision (8 June 2006), para. 134; Kressin v. Germany, ECtHR (Application No 21061/06), Decision (22 December 2009), para. 26; Spaeth v. Germany, ECtHR (Application No 854/07), Decision (29 September 2011), para. 42.
- 31.
Rumpf v. Germany, ECtHR (Application No 46344/06), Decision (2 September 2010), paras. 64 ff.
- 32.
Under Article 19(3) of the German Basic Law, foreign corporations cannot rely on fundamental rights granted in the Constitution. There is an exception, however, for juridical persons from other Member States of the European Union (EU) who can invoke their rights of non-discrimination under EU law to claim equal treatment with German juridical persons, and hence access to the Constitutional Court. See BVerfGE 129, 78, 97 f. (German Constitutional Court, 19 July 2011).
- 33.
For an overview over the jurisprudence of the US Supreme Court and lower federal courts in the US see Cole J (2014) The Political Question Doctrine: Justiciability and the Separation of Powers, Congressional Research Service Report No. R43834, https://www.fas.org/sgp/crs/misc/R43834.pdf (last accessed 28 July 2015), pp. 10–12, 15–19.
- 34.
See French (2015), pp. 159–161.
- 35.
See The Mavrommatis Palestine Concessions (Greece v. Britain), Judgment (30 August 1924), PCIJ Series A, No. 2 (1924), 12. See generally on diplomatic protection Amerasinghe (2008).
- 36.
See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment (5 February 1970), ICJ Reports 1970, 42, para. 70.
- 37.
- 38.
- 39.
- 40.
See Johnson and Gimblett (2012).
- 41.
Public Statement on the International Investment Regime, 31 August 2010, http://www.osgoode.yorku.ca/public-statement-international-investment-regime-31-August-2010/ (last accessed 28 July 2015), para. 10; see also Yackee (2008).
- 42.
Certainly, the situation of investors behaving opportunistically and attempting to renege on their original promises also exists. However, the host state as a sovereign actor does not depend on dispute settlement mechanisms to make investors comply with his or her obligations, but can typically react to such conduct by unilaterally imposing sanctions. The states’ ability to impose and enforce decisions unilaterally is also the deeper justification for having a unilateral right of recourse for foreign investors. It is a corollary and no more than a modest limitation on host state sovereignty.
- 43.
See the European Commission’s proposal for a permanent TTIP Tribunal, European Commission, Press Release: Commission Proposes New Investment Court System for TTIP and Other EU Trade and Investment Negotiations, 16 September 2015, http://europa.eu/rapid/press-release_IP-15-5651_en.htm (last accessed 15 October 2015). See further UNCTAD (2015) World Investment Report 2015: Reforming International Investment Governance, http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf (last accessed 28 September 2015), p. 152.
- 44.
Miles (2016), section 1.
- 45.
See the discussion of the community of investment arbitrators in Miles (2016), section 2.2. For other particularly critical views of how a small group of arbitrators allegedly captured the investment field see Eberhardt P, Olivert C (2012) Profiting from Injustice: How Law Firms, Arbitrators and Financiers Are Fuelling an Investment Arbitration Boom, Corporate Europe Observatory and the Transnational Institute, http://www.tni.org/profitingfrominjustice.pdf (last accessed 29 July 2015), pp. 35–55; Sornarajah (2015), pp. 27–28.
- 46.
See Schill (2010).
- 47.
- 48.
The structure of the community of investment arbitrators and their influence on how investment disputes are decided is the subject of a number of recent empirical sociological studies. See Franck et al. (2015); Pauwelyn J (2015) WTO Panelists Are from Mars, ICSID Arbitrators Are from Venus—Why? And Does It Matter?, http://dx.doi.org/10.2139/ssrn.2549050 (last accessed 29 July 2015); Puig (2014). Earlier studies include Kapeliuk (2010); Fontoura Costa (2011); Waibel M, Wu Y (2011) Are Arbitrators Political? Working Paper, http://www.wipol.uni-bonn.de/lehrveranstaltungen-1/lawecon-workshop/archive/dateien/waibelwinter11-12 (last accessed 29 September 2015).
- 49.
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (adopted 18 March 1965, entered into force 14 October 1966) 575 UNTS 159.
- 50.
Pursuant to Article 37(2) ICSID Convention the respondent state has to agree to a sole arbitrator deciding the dispute (lit a) or, in addition to appointing one arbitrator at will, agree to the president of the Tribunal (lit b). Failing such agreement, the Chairman of the Administrative Council shall appoint the presiding arbitrator after consulting both parties (Article 38 ICSID Convention). In making appointment choices, the Chairman is limited to individuals that Member States have nominated to be included in the List of Arbitrators (see Article 40(1) ICSID Convention). Other arbitration rules frequently applied in investment treaty arbitrations, such as the United Nations Conference on International Trade Law (UNCITRAL) Arbitration Rules (the revised version of 2010, and the latest version of 2013 incorporating the UNCITRAL Rules on Transparency for Treaty-Based Investor-State Arbitration are available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html (last accessed 29 July 2015) or the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Investment Disputes (ICSID Additional Facility Rules) (latest version effective as of 10 April 2006) reprinted in ICSID Additional Facility Rules, Document ICSID/11, April 2006, https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Documents/AFR_English-final.pdf (last accessed 30 July 2015) are slightly more complicated, but they can be applied so as to ensure that states face a majority on the arbitral tribunal that they are comfortable with or that is legitimised through appointment by a truly neutral appointment authority in a process in which the state party participates.
- 51.
Montt (2009), p. 157.
- 52.
Miles (2016), section 4.
- 53.
For this argument see Schill (2015b), p. 4.
- 54.
- 55.
Some IIAs provide expressly for the possibility of non-disputing party submissions; see eg Article 10.20.2 of the Dominican Republic–Central America–United States Free Trade Agreement (CAFTA-DR), https://ustr.gov/trade-agreements/free-trade-agreements/cafta-dr-dominican-republic-central-america-fta/final-text (last accessed 15 October 2015). Yet, even in the absence of such an explicit provision, tribunals are generally able to suggest such submissions, and in practice have done so (see eg Aguas del Tunari, S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Respondent’s Objections to Jurisdiction (21 October 2005), paras. 45–49).
- 56.
See further on the impact of states’ interpretations of IIAs, Roberts (2010).
- 57.
The FTC has issued an Interpretive Note through which the interpretation of fair and equitable treatment under NAFTA was tied to customary international law and that infused transparency into the decision-making of arbitral tribunals. See NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2001, http://www.sice.oas.org/tpd/nafta/Commission/CH11understanding_e.asp (last accessed 30 July 2015). Arbitral tribunals have, with some initial quarrels as to whether interpretations should affect ongoing proceedings, accepted and followed that interpretation. Most recently see Clayton and others and Bilcon of Delaware, Inc. v. Government of Canada, UNCITRAL (NAFTA), Award on Jurisdiction and Liability (17 March 2015), paras. 432–433.
- 58.
This incident is reported in National Grid plc v. The Argentine Republic, UNCITRAL, Decision on Jurisdiction (20 June 2006), para. 85.
- 59.
See Siemens AG v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction (3 August 2004), paras. 82-110.
- 60.
Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction (25 January 2000), paras. 38-64.
- 61.
- 62.
See Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (29 May 2003), paras. 113-122.
- 63.
Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (29 May 2003), para. 119.
- 64.
Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (29 May 2003), para. 122 (stating that one needed to “consider, in order to determine if [the interferences] are to be characterised as expropriatory, whether such actions or measures are proportional to the public interest presumably protected thereby and to the protection legally granted to investments, taking into account that the significance of such impact has a key role upon deciding the proportionality”).
- 65.
See Methanex Corporation v. United States of America, UNCITRAL (NAFTA), Final Award of the Tribunal on Jurisdiction and Merits (3 August 2005) Part IV, ch D, para. 7 (“In the Tribunal’s view, Methanex is correct that an intentionally discriminatory regulation against a foreign investor fulfils a key requirement for establishing expropriation. But as a matter of general international law, a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alios, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor contemplating investment that the government would refrain from such regulation.”).
- 66.
Saluka Investments B.V. v. Czech Republic, UNCITRAL, Partial Award (17 March 2006), para. 306.
- 67.
For another example that fair and equitable treatment does not suppress the host state’s power to legislate in the public interest see Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award (11 September 2007), para. 332 (stating that “[i]t is each State’s undeniable right and privilege to exercise its sovereign legislative power. A State has the right to enact, modify or cancel a law at its own discretion. Save for the existence of an agreement, in the form of a stabilisation clause or otherwise, there is nothing objectionable about the amendment brought to the regulatory framework existing at the time an investor made its investment. As a matter of fact, any businessman or investor knows that laws will evolve over time. What is prohibited however is for a State to act unfairly, unreasonably or inequitably in the exercise of its legislative power.”).
- 68.
Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No. ARB/06/11, Award (5 October 2012), paras. 402–404.
- 69.
See MTD Equity SDN BHD and MTD Chile S.A. v. Republic of Chile, Award (25 May 2004), para. 109; Azurix Corp. v. The Argentine Republic, ICSID Case No. ARB/01/12, Award (14 July 2006), para. 311; Fireman’s Fund Insurance Company v. The United Mexican States, ICSID Case No. ARB(AF)/02/01, Award (17 July 2006), para. 176(j); LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability (3 October 2006), para. 194; BG Group Plc. v. Republic of Argentina, UNCITRAL, Final Award (24 December 2007), para. 298; National Grid P.L.C. v. Argentine Republic, UNCITRAL, Award (3 November 2008), para. 175; Joseph C. Lemire v. Ukraine, ICSID Case No. ARB/06/18, Decision on Jurisdiction and Liability (14 January 2010), para. 285; Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability (27 December 2010), paras. 123 and 197; El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011), paras. 241–243 and 373; Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB/09/2, Award (31 October 2012), para. 522; cf. also Antoine Goetz & Consorts et S.A. Affinage des Metaux v. Republique du Burundi, ICSID Case No. ARB/01/2, Sentence (21 June 2012), para. 258.
- 70.
- 71.
- 72.
SD Myers, Inc v. Canada, UNCITRAL (NAFTA), Partial Award, 13 November 2000), para. 261.
- 73.
Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (29 May 2003), para. 122.
- 74.
For an in-depth discussion of the conceptual foundations of deference in public and public international law see Schill (2012b), pp. 585–594.
- 75.
Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability (27 December 2010), para. 111 (internal citations omitted).
- 76.
Toto Costruzioni Generali S.p.A. v. Republic of Lebanon, ICSID Case No. ARB/07/12, Award (7 July 2012), para. 166.
- 77.
Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award (22 September 2014), para. 576 (internal citations omitted).
- 78.
Reactions to Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1 (NAFTA), Award (30 August 2000), were such an example, as the case was criticised for expanding the concept of indirect expropriation in IIAs so as to encompass a particularly broad version of regulatory taking that required compensation for any general measure that aimed at the protection of the environment and was harmful to the profits of foreign investors. What often went unnoticed, however, was that the case concerned not a ‘regulatory taking’ at all, but involved the frustration of an assurance that the central Mexican government had given to the investor in question that all permits to operate the envisioned waste landfill had been granted and that construction could start.
- 79.
On the contrary, a host of decisions recognised, not much differently from the restrictions domestic constitutional standards imposed, that general regulation was usually exempt from compensation, unless there was discrimination, unnecessary and disproportionate negative impact, or specific assurances to refrain from the measure in question. See Methanex Corporation v. United States of America, UNCITRAL (NAFTA), Final Award of the Tribunal on Jurisdiction and Merits (3 August 2005). See also Saluka Investments BV v. Czech Republic, UNCITRAL, Partial Award (17 March 2006), para. 255 (“It is now established in international law that States are not liable to pay compensation to a foreign investor when, in the normal exercise of their regulatory powers, they adopt in a non-discriminatory manner bona fide regulations that are aimed at the general welfare.”).
- 80.
See, for example, Tienhaara (2011).
- 81.
See, for example, the conclusion of a study for the Minister for Foreign Trade and Development Cooperation, Ministry of Foreign Affairs, The Netherlands by Tietje C, Baetens F (2014) The Impact of Investor-State-Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership, Ref. MINBUZA-2014.78850, http://www.rijksoverheid.nl/bestanden/documenten-en-publicaties/rapporten/2014/06/24/the-impact-of-investor-state-dispute-settlement-isds-in-the-ttip/the-impact-of-investor-state-dispute-settlement-isds-in-the-ttip.pdf (last accessed 31 July 2015), p. 9 (“We recognize that regulatory chill is difficult to prove or disprove, but a close examination of case law from NAFTA and CAFTA does not support this theory. Most investment claims do not challenge the government’s ability to legislate or regulate as such, but are administrative in character, challenging a government’s treatment of an individual investor in the context of a particular license, permit, or promise extended by government officials. So far under NAFTA, direct challenges to the government’s legislative or regulatory rights have never succeeded.”); see further at pp. 39–48.
- 82.
Miles (2016), section 2.1.
- 83.
These are Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG v. Federal Republic of Germany, ICSID Case No. ARB/09/6, Award (11 March 2011) (Vattenfall I) and Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12 (registered 31 May 2012) (Vattenfall II).
- 84.
Miles (2016), section 2.1.1.
- 85.
Miles (2016), section 2.1.1.
- 86.
Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG v. Federal Republic of Germany, ICSID Case No. ARB/09/6, Award (11 March 2011)
- 87.
For a short discussion of the factual background with further references see Wikipedia, Atomausstieg, https://de.wikipedia.org/wiki/Atomausstieg (last accessed 31 July 2015).
- 88.
See German Federal Administrative Court (Bundesverwaltungsgericht—BVerwG), Decision of 20 December 2013 (7 B 18/13) [2014] Deutsches Verwaltungsblatt 303. See also the pointed analysis of the moratorium by Rebentisch (2011). On the liability of the state under domestic law see Schmitt and Wohlrab (2015).
- 89.
See German Federal Constitutional Court (Bundesverfassungsgericht), 2 BvL 6/13 (pending) following an order for reference by the Hamburg Fiscal Court, Decision of 29 January 2013 (4 K 270/11). The Federal Fiscal Court (Bundesfinanzhof—BFH) declined the application of interim measures until the Bundesverfassungsgericht renders its judgment, thereby annulling prior decisions by the FG Hamburg and the FG Munich that granted repayment claims put forward by power plant operators, see BFH, Decision of 9 March 2012 (VII B 171/11) and Decision of 25 November 2014 (VII B 65/14).
- 90.
See constitutional complaints submitted by E.ON Kraftwerke GmbH (1 BvR 2821/11), RWE Power AG (1 BvR 321/12), Kernkraftwerk Krümmel GmbH & Co OHG and Vattenfall Europe Nuclear Energy (1 BvR 1456/12) (all pending).
- 91.
See, for example, Voon and Mitchell (2011). Meanwhile, Philip Morris’ claim has reportedly been dismissed, albeit on jurisdictional grounds. See ‘Australia Prevails in Arbitration with Philip Morris over Tobacco Plain Packaging Dispute’ IAReporter (17 December 2015), http://tinyurl.com/jd7qwlf (last accessed 27 February 2016).
- 92.
See French (2015), p. 159.
- 93.
Miles (2016), section 4.
- 94.
Attorney General of Canada v. William Ralph Clayton and others, Notice of Application (16 June 2015), Court File No. T-1000-15, http://italaw.com (last accessed 31 July 2015).
- 95.
Clayton and others and Bilcon of Delaware, Inc. v. Government of Canada, UNCITRAL (NAFTA), Award on Jurisdiction and Liability (17 March 2015), paras. 427-446.
- 96.
Clayton and others and Bilcon of Delaware, Inc. v. Government of Canada, UNCITRAL (NAFTA), Award on Jurisdiction and Liability (17 March 2015), para. 444.
- 97.
Clayton and others and Bilcon of Delaware, Inc. v. Government of Canada, UNCITRAL (NAFTA), Award on Jurisdiction and Liability (17 March 2015), para. 591 (concluding that “that the conduct of the joint review was arbitrary. The JRP [i.e. Joint Review Panel] effectively created, without legal authority or fair notice to Bilcon, a new standard of assessment rather than fully carrying out the mandate defined by the applicable law, including the requirement under the CEAA [i.e. the applicable legal framework] to carry out a thorough ‘likely significant adverse effects after mitigation’ analysis.”).
- 98.
See European Commission, Press Release: Commission Proposes New Investment Court System for TTIP and Other EU Trade and Investment Negotiations, 16 September 2015, http://europa.eu/rapid/press-release_IP-15-5651_en.htm (last accessed 15 October 2015). For a succinct overview over the most recent reform debates and options more generally see UNCTAD (2015) World Investment Report 2015: Reforming International Investment Governance, http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf (last accessed 28 September 2015), p. 119 ff. See further, inter alia, the contributions in Kalicki and Joubin-Bret (2015).
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Acknowledgments
The author acknowledges support in preparing this article under a European Research Council Starting Grant on ‘Transnational Private-Public Abitration as Global Regulatory Governance: Charting and Codifying the Lex Mercatoria Publica’ (LexMercPub, Grant agreement no.: 313355).
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Schill, S.W. (2016). In Defense of International Investment Law. In: Bungenberg, M., Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2016. European Yearbook of International Economic Law, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-29215-1_13
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