Abstract
With acquiring powers to conclude investment treaties in the field of the common commercial policy, the EU has entered the scene as a regional actor in investment treaty law-making. Since the Commission, the EU’s trade negotiating arm, has refrained from adopting a Model BIT or Model IIA, the contours of investment agreements and investment chapters in the EU’s trade agreements remained vague and uncertain for a while. Meanwhile the first finalized texts of such investment standards have emerged. Most prominent are the 2015 draft TTIP investment chapter and the 2016 CETA text. This contribution focuses on the role of investor-State dispute settlement in the negotiation of these agreements. It shows that the Commission initially adopted the traditional European view that an effective investment protection required the enforcement mechanism of investor-State arbitration. With the increasing public criticism of this form of investor-State dispute settlement, however, various attempts have been made to correct the perceived deficiencies of investor-State arbitration. In addition to fine-tuning and limiting the scope of the substantive investment protection standards in the new EU treaties, the Commission has equally inserted a number of changes to investor-State arbitration, such as broad transparency rules, the possibility of amicus curiae submissions, strict rules on arbitrator independence and impartiality, the power to dismiss frivolous claims, etc. Then, in a September 2015 TTIP text, the Commission proposed to the US-side the adoption of an investment court system with standing judges on two levels.
This is a slightly amended and updated version of “The European Union and Investor-State Dispute Settlement: From Investor-State Arbitration to a Permanent Investment Court”, published by the Centre for International Governance Innovation in Second Thoughts: lnvestor-State Arbitration between Developed Democracies, edited by Armand de Mestral, and republished here with permission.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Consolidated Comprehensive Economic and Trade Agreement Text, published on 26 September 2014 (Consolidated 2014 CETA text), http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf; see also Revised CETA text of 29 February 2016 (Revised 2016 CETA text), http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154329.pdf (both last accessed 1 March 2017).
- 2.
EU-Singapore Free Trade Agreement, authentic text as of May 2015, published on 29 June 2015, http://trade.ec.europa.eu/doclib/press/index.cfm?id=961 (last accessed 1 March 2017).
- 3.
European Union’s proposal for Investment Protection and Resolution of Investment Disputes of 12 November 2015 (TTIP), http://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_153955.pdf (last accessed 1 March 2017).
- 4.
Energy Charter Treaty (ECT), opened for signature 17 December 1994, entered into force 1 April 1998.
- 5.
When the subject-areas covered by an international agreement negotiated by the EU are not entirely covered by the EU’s external powers, such agreements are entered into by the EU plus at least some of its Member States. Because of the joint participation as treaty parties on the EU side, they are referred to as “mixed” agreements. See, e.g. Bischoff (2011), p. 1527 et seq. Generally on the issue of mixed agreements, see Craig and De Burca (2011), p. 334 et seq.; Eeckhout (2011), p. 213 et seq.; Hillion and Koutrakos (2010).
- 6.
Hulley Enterprises Limited (Cyprus) v The Russian Federation, PCA Case No. AA 226, Award 18 July 2014; Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA Case No. AA 227, Award 18 July 2014; Veteran Petroleum Limited (Cyprus) v The Russian Federation, PCA Case No. AA 228, Award 18 July 2014.
- 7.
See Antaris Solar and Dr. Michael Göde v Czech Republic, PCA Case No. 2014-01; Natland Investment Group NV, Natland Group Limited, G.I.H.G. Limited, and Radiance Energy Holding S.à r.l. v Czech Republic, registered 8 May 2013; Voltaic Network GmbH v Czech Republic, registered 8 May 2013; ICW Europe Investments Limited v Czech Republic, registered 8 May 2013; Photovoltaik Knopf Betriebs-GmbH v Czech Republic, registered 8 May 2013; WA Investments-Europa Nova Limited v Czech Republic, registered 8 May 2013; Mr. Jürgen Wirtgen, Mr. Stefan Wirtgen, and JSW Solar (zwei) v Czech Republic, registered June 2013.
- 8.
See Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v Italian Republic, ICSID Case No. ARB/14/3, registered 21 February 2014; Greentech Energy Systems and Novenergia v Italy, SCC, registered 7 July 2015; Silver Ridge Power BV v Italian Republic, ICSID Case No. ARB/15/37; Belenergia S.A. v Italian Republic, ICSID Case No. ARB/15/40; Eskosol S.p.A. in liquidazione v Italian Republic, ICSID Case No. ARB/15/50; ESPF Beteiligungs GmbH, ESPF Nr. 2 Austria Beteiligungs GmbH, and InfraClass Energie 5 GmbH & Co. KG v Italian Republic, ICSID Case No. ARB/16/5.
- 9.
The following proceedings have been instituted under the auspices of ICSID: RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v Kingdom of Spain, ICSID Case No. ARB/13/30, Decision on Jurisdiction 6 June 2016; Antin Infrastructure Services Luxembourg S.à r.l. v Kingdom of Spain, ICSID Case No. ARB/13/31; Eiser Infrastructure Limited v Kingdom of Spain, ICSID Case No. ARB/13/36; Masdar Solar & Wind Cooperatief UA v Kingdom of Spain, ICSID Case No. ARB/14/1; NextEra Energy Global Holdings BV v Kingdom of Spain, ICSID Case No. ARB/14/11; InfraRed Environmental Infrastructure GP Limited v Kingdom of Spain, ICSID Case No. ARB/14/12; RENERGY S.à r.l. v Kingdom of Spain, ICSID Case No. ARB/14/18; RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v Kingdom of Spain, ICSID Case No. ARB/14/34; Stadtwerke München GmbH, RWE Innogy GmbH, and others v Kingdom of Spain, ICSID Case No. ARB/15/1; STEAG GmbH v Kingdom of Spain, ICSID Case No. ARB/15/4; 9REN Holding S.à r.l v. Kingdom of Spain, ICSID Case No. ARB/15/15; BayWa r.e. renewable energy GmbH and BayWa r.e. Asset Holding GmbH v Kingdom of Spain, ICSID Case No. ARB/15/16; Cube Infrastructure Fund SICAV and others v Kingdom of Spain, ICSID Case No. ARB/15/20; Mathias Kruck and others v Kingdom of Spain, ICSID Case No. ARB/15/23; KS Invest GmbH and TLS Invest GmbH v Kingdom of Spain, ICSID Case No. ARB/15/25; JGC Corporation v Kingdom of Spain, ICSID Case No. ARB/15/27; Cavalum SGPS, S.A. v Kingdom of Spain, ICSID Case No. ARB/15/34; E.ON SE, E.ON Finanzanlagen GmbH and E.ON Iberia Holding GmbH v Kingdom of Spain, ICSID Case No. ARB/15/35; OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v Kingdom of Spain, ICSID Case No. ARB/15/36; SolEs Badajoz GmbH v Kingdom of Spain, ICSID Case No. ARB/15/38; Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v Kingdom of Spain, ICSID Case No. ARB/15/42; Watkins Holdings S.à r.l. and others v Kingdom of Spain, ICSID Case No. ARB/15/44; Landesbank Baden-Württemberg and others v Kingdom of Spain, ICSID Case No. ARB/15/45; Eurus Energy Holdings Corporation and Eurus Energy Europe B.V. v Kingdom of Spain, ICSID Case No. ARB/16/4; Sun-Flower Olmeda GmbH & Co KG and others v Kingdom of Spain, ICSID Case No. ARB/16/17; Infracapital F1 S.à r.l. and Infracapital Solar B.V. v Kingdom of Spain, ICSID Case No. ARB/16/18; Sevilla Beheer B.V. and others v Kingdom of Spain, ICSID Case No. ARB/16/27. Four cases have been registered at the Arbitration Institute of the SCC: Isolux Infrastructure Netherlands B.V. v Spain, registered 2013; CSP Equity Investment S.à r.l.. v. Spain, registered June 2013; Charanne and Construction Investments v Spain, SCC Arbitration No. 062/2012, Award 21 January 2016; Alten Renewable Energy Developments BV v Spain, registered March 2015. At least one ECT claim-based tribunal has been constituted under the UNCITRAL Arbitration Rules, see AES Solar and others v Spain, registered November 2011.
- 10.
See Regulation No 912/2014 of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party, OJ 2014 L 257/121.
- 11.
Article 26 ECT.
- 12.
Statement submitted by the European Communities to the Secretariat of the Energy Charter pursuant to Article 26(3)(b)(ii) ECT, OJ 1998 L 69/115. This notwithstanding, the statement further clarifies in a footnote that this does not exclude the right of an investor to institute proceedings against both the (then) Communities and their Member States.
- 13.
Pursuant to Article 8.21 Revised 2016 CETA Text. Determination of the respondent for disputes with the European Union or its Member States, the EU is primarily competent for the determination of the proper respondent before the institution of arbitral proceedings. If the investor has not been informed of the determination within 50 days, the Member State shall be respondent in cases where the measure allegedly breaching CETA’s protection standards is exclusively a measures of a Member State. If the dispute at stake includes measures of the European Union, the European Union shall be respondent.
- 14.
Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, signed 13 December 2007, OJ 2007 C 306/1.
- 15.
Article 207(1) TFEU: “The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action.” See also Bungenberg (2010), Chaisse (2012), Dimopoulos (2011), Hoffmeister and Ünüvar (2013), Bungenberg and Hobe (2015).
- 16.
See European Commission, Towards a comprehensive European international investment policy, COM (2010) 343 final, p. 8: “[T]he articulation of investment policy should be consistent with the Treaty’s Chapter on capital and payments (Articles 63–66 TFEU) […]. That chapter does not expressly provide for the possibility to conclude international agreements on investment, including portfolio investment. However, to the extent that international agreements on investment affect the scope of the common rules set by the Treaty’s Chapter on capitals and payments, the exclusive Union competence to conclude agreements in this area would be implied […].” Hoffmeister and Ünüvar (2013), p. 65 et seq.
- 17.
See Reinisch (2014b), p. 136. The German Federal Constitutional Court stressed this in its Lisbon Treaty judgment, 2 BvE 2/08, 30 June 2009, para. 379: “The extension of the common commercial policy to ‘foreign direct investment’ (Article 207(1) TFEU) confers exclusive competence on the European Union also in this area. Much, however, argues in favour of assuming that the term ‘foreign direct investment’ only encompasses investment which serves to obtain a controlling interest in an enterprise […]. The consequence of this would be that exclusive competence only exists for investment of this type whereas investment protection agreements that go beyond this would have to be concluded as mixed agreements.” See also Bungenberg et al. (2011), Tietje (2009), p. 16; Reinisch (2010b), p. 107; Meyer, Stellt das geplante Freihandelsabkommen der EU mit Kanada (Comprehensive Economic and Trade Agreement, CETA) ein gemischtes Abkommen dar?, Rechtsgutachten für das Bundesministerium für Wirtschaft und Energie, 22 September 2014, https://www.bmwi.de/Redaktion/DE/Downloads/C-D/ceta-gutachten-einstufung-als-gemischtes-abkommen.pdf?__blob=publicationFile&v=4 (last accessed 1 March 2017), p. 10 et seq.
- 18.
Article 218(11) TFEU: “Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties.” The Commission made use of this provision in the context of the envisaged EU-Singapore FTA. See Commission Decision of 30 October 2014 requesting an opinion of the Court of Justice pursuant to article 218(11)TFEU on the competence of the Union to sign and conclude a Free Trade Agreement with Singapore, C(2014) 8218 final.
- 19.
Based on a proposal made by the Commission after the finalization of negotiations and subsequent to the consultation or consent of the European Parliament according to Article 218(6) TFEU, the Council adopts a decision to conclude the agreement pursuant to Article 218(2) and (6) TFEU. Additionally, in the case of mixed agreements the Members States’ consent pursuant to domestic law is warranted. It has been the practice of the EU that the Council will only conclude an agreement once all Member States have given their consent. The effect of abstention of individual Member States remains unclear. In particular, it is questionable whether such conduct would be in breach of the duty of co-operation under Article 4 TEU and whether the non-approving Member States would be bound by the parts of the respective agreement covered by exclusive competences of the EU by virtue of Article 116(2) TFEU. In this context, one has to take into account Article 218(5) TFEU as well which expressively provides for the possibility of provisional application of an envisaged agreement in the sense of Article 25 Vienna Convention on the Law of Treaties and thus for a means of circumventing the Member State acceptance requirement. For more detail see, e.g., Eeckhout (2011), p. 258 et seq.
- 20.
See Article 345 TFEU: “The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership.” On this issue, see, e.g., Dimopoulos (2008), p. 115 et seq.; Akkermans and Ramaekers (2010), p. 292; Dimopoulos (2011), p. 108 et seq.; Hindelang (2011), p. 163; Bungenberg (2011), p. 36 et seq.
- 21.
See Meyer, Stellt das geplante Freihandelsabkommen der EU mit Kanada (Comprehensive Economic and Trade Agreement, CETA) ein gemischtes Abkommen dar?, Rechtsgutachten für das Bundesministerium für Wirtschaft und Energie, 22 September 2014, p. 15 et seq.; Shan and Zhang (2011), p. 1070; Kläger (2014), p. 69.
- 22.
See, e.g., Schill (2013), p. 40.
- 23.
See Proposal for a Council Decision on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement between Canada of the one part, and the European Union and its Member States, of the other part, European Commission, COM (2016) 444 final.
- 24.
European Commission, Fact sheet, Investment Protection and Investor-to-State Dispute Settlement in EU Agreements, November 2013, p. 4.
- 25.
Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, OJ 2012 L 351/40.
- 26.
See also Brown and Naglis (2013).
- 27.
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), 18 March 1965.
- 28.
See e.g. Eastern Sugar B.V. v Czech Republic, SCC Case No. 088/2004, Partial Award, 27 March 2007, para. 165: “Whereas general principles such as fair and equitable treatment or full security and protection of the investment are found in many international, regional or national legal systems, the investor’s right arising from the BIT’s dispute settlement clause to address an international arbitral tribunal independent from the host state is the best guarantee that the investment will be protected against potential undue infringements by the host state.” National Grid plc v Argentina, Decision on Jurisdiction, 20 June 2006, para. 49: “assurance of independent international arbitration is an important – perhaps the most important – element in investor protection.”
- 29.
- 30.
See already Shihata (1986), p. 1; Paulsson J, Keynote Address: Confronting Global Challenges: From Gunboat Diplomacy to Investor-State Arbitration, PCA Peace Palace Centenary Seminar, 11 October 2013.
- 31.
- 32.
For the complete list of investor-state disputes including those on the basis of Intra-EU BITs, see http://unctad.org/en/Pages/DIAE/ISDS.aspx (last accessed 1 March 2017).
- 33.
UNCTAD, IIA Issue Notes, Latest Development in Investor-State Dispute Settlement, No. 1 April 2012, p. 19; UNCTAD, IIA Issue Notes, Recent Development in Investor-State Dispute Settlement (ISDS), No. 1 May 2013, p. 31; UNCTAD, IIA Issue Notes, Recent Development in Investor-State Dispute Settlement (ISDS), No. 1 April 2014, pp. 2–33; UNCTAD, IIA Issue Notes, Investor-State Dispute Settlement: Review of Developments in 2014, No. 2 May 2015, p. 29 et seq.; UNCTAD, IIA Issue Notes, Investor-State Dispute Settlement: Review of Developments in 2015, No. 2 June 2016, p. 29 et seq.
- 34.
See Australia-United States FTA (2005), ATS 1, HR Doc No 108-199. See also Australian Government, Department of Foreign Affairs and Trade, Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity, April 2011, http://blogs.usyd.edu.au/japaneselaw/2011_Gillard%20Govt%20Trade%20Policy%20Statement.pdf (last accessed 1 March 2017), p. 14; Nottage (2011), Trakman (2012), p. 83; Dodge (2006).
- 35.
COM (2010) 343 final, p. 10: “ISDS is such an established feature of investment agreements that its absence would in fact discourage investors and make a host economy less attractive than others.”
- 36.
European Parliament, resolution of 6 April 2011 on the future European international investment policy, 2010/2203(INI), para. 24: “Expresses its deep concern regarding the level of discretion of international arbitrators to make a broad interpretation of investor protection clauses, thereby leading to the ruling out of legitimate public regulations; calls on the Commission to produce clear definitions of investor protection standards in order to avoid such problems in the new investment agreements.”
- 37.
European Commission, Press Release, Commission to consult European public on provisions in EU-US trade deal on investment and investor-state dispute settlement, 21 January 2014.
- 38.
COM (2010) 343 final, p. 6.
- 39.
- 40.
See on the negotiations with Canada also Lévesque (2013).
- 41.
COM (2010) 343 final.
- 42.
COM(2010) 343 final, p. 9 et seq.: “In order to ensure effective enforcement, investment agreements also feature investor-to-state dispute settlement, which permits an investor to take a claim against a government directly to binding international arbitration [footnote: The Energy Charter Treaty, to which the EU is a party, equally contains investor-state dispute settlement.]. Investor-state dispute settlement, which forms a key part of the inheritance that the Union receives from Member State BITs, is important as an investment involves the establishment of a long-term relationship with the host state which cannot be easily diverted to another market in the event of a problem with the investment. Investor-state is such an established feature of investment agreements that its absence would in fact discourage investors and make a host economy less attractive than others. For these reasons, future EU agreements including investment protection should include investor-state dispute settlement. This raises challenges relating, in part, to the uniqueness of investor-state dispute settlement in international economic law and in part to the fact that the Union has not historically been a significant actor in this field. Current structures are to some extent ill-adapted to the advent of the Union. To take one example, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), is open to signature and ratification by states members of the World Bank or party to the Statute of the International Court of Justice. The European Union qualifies under neither. In approaching investor-state dispute settlement mechanisms, the Union should build on Member State practices to arrive at state-of-the art investor-state dispute settlement mechanisms.”
- 43.
Council of the EU, Conclusions on a comprehensive European international investment policy, 3041st Foreign Affairs Council Meeting, 25 October 2010.
- 44.
European Parliament resolution of 6 April 2011 on the future European international investment policy, 2010/2203(INI).
- 45.
Council, Conclusions on a comprehensive European international investment policy, 3041st Foreign Affairs Council Meeting, Luxembourg, 25 October 2010: “[…] stresses, in particular, the need for an effective investor-to-state dispute settlement mechanism in the EU investment agreements”.
- 46.
European Parliament, European Parliament resolution of 6 April 2011 on the future European international investment policy, 2010/2203 (INI), para. 32: “Takes the view that, in addition to state-to-state dispute settlement procedures, investor-state procedures must also be applicable in order to secure comprehensive investment protection”.
- 47.
Council Negotiating Directives (Canada, India and Singapore), 12 September 2011, http://www.bilaterals.org/spip.php?article20272&lang=en (last accessed 1 March 2017).
- 48.
North American Free Trade Agreement, ILM 32 (1993) 289.
- 49.
See the leaked negotiating mandate “EU-Canada (CETA), India and Singapore FTAs – European Commission negotiating mandate on investment (2011)”, http://www.bilaterals.org/spip.php?article20272&lang=en (last accessed 1 March 2017): “Enforcement: the agreement shall aim to provide for an effective investor-to state-dispute settlement mechanism. State-to-state dispute settlement will be included, but will not interfere with the right of investors to have recourse to the investor-to-state dispute settlement mechanism. It should provide for investors a wide range of arbitration fora as currently available under the Member States’ bilateral investment agreements (BIT’s).” Pursuant to Article 67 ICSID Convention, the convention is only accessible for Member States of the International Bank for Reconstruction and Development or to any other State which is a party to the ICJ Statute. See already Burgstaller (2014), p. 557. Notably, Article X.22(4) Consolidated 2014 CETA Text makes reference to the ICSID Convention, to the ICSID Additional Facility Rules and to the UNCITRAL Arbitration Rules. See also, Reinisch A, Stifter L, European Investment Policy and ISDS, 13 November 2014, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2564018 (last accessed 1 March 2017), p. 11 et seq.
- 50.
Council, Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America, 11103/13 DCL 1, 9 October 2014, p. 9: “Enforcement: the Agreement should aim to provide for an effective and state-of-the-art investor-to-state dispute settlement mechanism, providing for transparency, independence of arbitrators and predictability of the Agreement, including through the possibility of binding interpretation of the Agreement by the Parties. State-to-state dispute settlement should be included, but should not interfere with the right of investors to have recourse to the investor-to-state dispute settlement mechanisms. It should provide for investors as wide a range of arbitration fora as is currently available under the Member States’ bilateral investment agreements. The investor-to-state dispute settlement mechanism should contain safeguards against manifestly unjustified or frivolous claims. Consideration should be given to the possibility of creating an appellate mechanism applicable to investor-to-state dispute settlement under the Agreement, and to the appropriate relationship between ISDS and domestic remedies.”
- 51.
The Overview of FTA and other Trade Negotiations of the Commission shows the current state of negotiations of international agreements currently negotiated by the EU, http://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_118238.pdf (last accessed 1 March 2017).
- 52.
Consolidated 2014 CETA text and Revised 2016 CETA text.
- 53.
EU-Vietnam Free Trade Agreement: Agreed text as of January 2016, published on 1 March 2016, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437 (last accessed 1 March 2017).
- 54.
On 20 September 2013, the EU and Singapore have initialled the text of a comprehensive FTA. The authentic text as of May 2015 of the EU-Singapore Free Trade Agreement, was published on 29 June 2015, http://trade.ec.europa.eu/doclib/press/index.cfm?id=961 (last accessed 1 March 2017).
- 55.
Commission draft text TTIP – investment, 16 September 2015, http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf (last accessed 1 March 2017).
- 56.
Revised 2016 CETA text, http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154329.pdf (last accessed 1 March 2017).
- 57.
See, e.g., Barlow M, CETA: A Threat to Local Democracy. Huffington Post Canada, 22 October 2011, http://www.huffingtonpost.ca/maude-barlow/ceta_b_1021782.html (last accessed 1 March 2017); see Trew S, Down with human rights! The Harper government’s peculiar objection to European trade deal, rabble.ca blogs, 22 November 2012, http://rabble.ca/blogs/bloggers/council-canadians/2012/11/down-human-rights-harper-governments-unfathomable-objection (last accessed 1 March 2017).
- 58.
UNCTAD lists 65 BITs concluded by Austria (60 in force) and 134 BITs concluded by Germany (127 in force), http://investmentpolicyhub.unctad.org/IIA (last accessed 1 March 2017).
- 59.
See OECD Negotiating Group On The Multilateral Agreement On Investment (MAI), The Multilateral Agreement On Investment Draft Consolidated Text 6, OECD Doc. DAFFE/MAI(98)7/REV1 (22 April 1998); see also Muchlinski (2011).
- 60.
The beginning of the negotiations in mid-2013 were already politically overshadowed by waves of new revelations concerning US spying activities directed against EU Member State governments.
- 61.
See e.g. Mason R, ‘Corporate Wolves’ will exploit TTIP trade deal, MPs warned, The Guardian, 15 January 2015, http://www.theguardian.com/business/2015/jan/15/corporate-wolves-warning-ttip--trade-deal (last accessed 1 March 2017).
- 62.
See e.g. Faiola A, Free trade with U.S.? Europe balks at chlorine chicken, hormone beef, The Washington Post, 4 December 2014, https://www.washingtonpost.com/world/europe/free-trade-with-us-europe-balks-at-chlorine-chicken-hormone-beef/2014/12/04/e9aa131c-6c3f-11e4-bafd-6598192a448d_story.html (last accessed 1 March 2017); Traynor I, Rice-Oxley M, US-EU trade deal—the Guardian briefing, The Guardian, 5 February 2015, http://www.theguardian.com/business/2015/feb/05/us-eu-trade-deal-the-guardian-briefing (last accessed 1 March 2017).
- 63.
Council, Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America, 11103/13 DCL 1, 9 October 2014, p. 9.
- 64.
COM (2010) 343 final.
- 65.
See President Juncker’s political guidelines of 15 July 2014 addressed to the next Commission and entitled “A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change”, http://ec.europa.eu/priorities/docs/pg_en.pdf (last accessed 1 March 2017), p. 25: “The negotiating mandate foresees a number of conditions that have to be respected by such a regime [ISDS] as well as an assessment of its relationship with domestic courts. There is thus no obligation in this regard: the mandate leaves it open and serves as a guide.”
- 66.
German Federal Council Resolution of 11 July 2014, BR-Drs. 295/14: “9. Der Bundesrat hält spezielle Investitionsschutzvorschriften und Streitbeilegungsmechanismen im Verhältnis Investor und Staat zwischen der EU und den USA für verzichtbar und mit hohen Risiken verbunden. Gründe dafür sind insbesondere: – Beide Partner gewährleisten für Investoren einen hinreichenden Rechtsschutz vor unabhängigen nationalen Gerichten. – Durch Investor-Staat-Schiedsverfahren können allgemeine und angemessene Regelungen zum Schutz von Gemeinwohlzielen, die in demokratischen Entscheidungen rechtsstaatlich zustande gekommen und rechtmäßig angewandt wurden, ausgehebelt oder umgangen werden.”
- 67.
Liebrich S, Diese Verträge werden das Leben unserer Kinder beeinflussen, Süddeutsche Zeitung, 5 May 2015, http://www.sueddeutsche.de/wirtschaft/kritik-an-freihandelsabkommen-diese-vertraege-werden-das-leben-unserer-kinder-beeinflussen-1.2465023 (last accessed 1 March 2017); Gerstetter C, Meyer-Ohlendorf N, Investor-state dispute settlement under TTIP – a risk for environmental regulation?, Heinrich Böll Stiftung, 31 December 2013, p. 4; see also the Internet campaign “Stop TTIP”, https://stop-ttip.org/de/wo-liegt-das-problem/ (last accessed 1 March 2017); Greenpeace, TTIP: Scharfe Kritik am “Ja” zu ISDS, 8 July 2015, http://www.greenpeace.org/austria/de/News/Aktuelle-Meldungen/Gentechnik-News/2015/Scharfe-Kritik-am-Ja-zu-ISDS/ (last accessed 1 March 2017).
- 68.
S&D Position Paper on Investor-state dispute settlement mechanisms in ongoing trade negotiations, 4 March 2015.
- 69.
European Commission, Concept Paper, Investment in TTIP and beyond – the path for reform, 6 May 2015.
- 70.
See European Commission, Press Release, Commissioner Malmström consulted the European Parliament on reforms of investment dispute resolution in TTIP and beyond, 6 May 2015, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1303 (last accessed 1 March 2017).
- 71.
European Parliament, resolution of 8 July 2015 containing the European Parliament’s recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP), 2014/2228(INI).
- 72.
Commission draft text TTIP – investment, 16 September 2015, http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf (last accessed 1 March 2017).
- 73.
Revised CETA text, 29 February 2016, http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154329.pdf (last accessed 1 March 2017).
- 74.
See DePalma A, Nafta’s Powerful Little Secret: Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say, New York Times, 11 March 2001, http://www.nytimes.com/2001/03/11/business/nafta-s-powerful-little-secret-obscure-tribunals-settle-disputes-but-go-too-far.html (last accessed 1 March 2017): “THEIR meetings are secret. Their members are generally unknown. The decisions they reach need not be fully disclosed. Yet the way a small group of international tribunals handles disputes between investors and foreign governments has led to national laws being revoked, justice systems questioned and environmental regulations challenged. And it is all in the name of protecting the rights of foreign investors under the North American Free Trade Agreement.” See also Brower (2001), p. 43, mentioning the concern that the ISDS under NAFTA could have a “chilling effect” on regulation.
- 75.
Open Letter by the “Alliance for Justice” from March 2015 to Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, Minority Leader Pelosi, and Ambassador Froman, http://www.afj.org/wp-content/uploads/2015/03/ISDS-Letter-3.11.pdf (last accessed 1 March 2017), p. 1: “[…] we urge you to protect the rule of law and our nation’s sovereignty by ensuring ISDS is not included.”
- 76.
Open letter by law professors, 7 April 2015, to Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, Minority Leader Pelosi, and Ambassador Froman, https://www.mcgill.ca/fortier-chair/files/fortier-chair/isds_letter-april_20_final.docx (last accessed 1 March 2017): “We the undersigned – professors and scholars of international law, arbitration, and dispute settlement – strongly support a robust, even-handed, and careful discussion about investment treaty arbitration (ITA), which is sometimes referred to as investor-state dispute settlement (ISDS). We believe, however, that the discussion should be based on facts and balanced representations, rather than on errors or skewed information.” and on p. 5 “Contrary to the assertions contained in the “Alliance for Justice” letter, investment treaty arbitration does not undermine the rule of law. It ensures that, where a right is given, a remedy is also provided. It permits foreign investors to hold host states to the obligations they have undertaken in their treaties by means of a quasi-judicial process; and it also offers a forum for states to vindicate their policy choices.”
- 77.
See e.g., Monbiot G, This transatlantic trade deal is a full-frontal assault on democracy, The Guardian, 4 November 2013, http://www.theguardian.com/commentisfree/2013/nov/04/us-trade-deal-full-frontal-assault-on-democracy (last accessed 1 March 2017); Brühl J, Unbekannte Kläger, geheime Dokumente, Süddeutsche Zeitung, 12 August 2014, http://www.sueddeutsche.de/wirtschaft/ttip-faktencheck-investorenschutz-unbekannte-klaeger-geheime-dokumente-1.2085316 (last accessed 1 March 2017); Pinzler P, Uchatius W, Kohlenberg K, Schattenjustiz: Im Namen des Geldes, Die Zeit, 27 February 2014, http://www.zeit.de/2014/10/investitionsschutz-schiedsgericht-icsid-schattenjustiz (last accessed 1 March 2017).
- 78.
In this vein, see, e.g., the Seattle to Brussels Network in a brief from January 2014, entitled “Seattle to Brussels Network refutes European Commission’s defense of controversial investor-to-state dispute settlement”, http://www.tni.org/sites/www.tni.org/files/download/s2b_response_to_dgtrade_long.pdf (last accessed 1 March 2017): “There is clear evidence that proposed and even adopted laws on public health and environmental protection have been abandoned or watered down because of the threat of corporate claims for damages. […] Through regulatory chill effects and the cost of arbitration and awards, ISDS provisions constitute a considerable and growing policy and financial risk. The exponential growth in the number of ISDS cases spurred on by international trade lawyers; frivolous claims; and pressures to shelve regulation under threat of investment claims are systemic flaws.” Further on this issue, see Neumayer (2001), p. 231; Schill (2007), p. 469; Tienhaara (2011), p. 607.
- 79.
Vattenfall AB and others v Federal Republic of Germany, ICSID Case No. ARB/12/12, registered 31 May 2012.
- 80.
Philip Morris Asia Limited v The Commonwealth of Australia, PCA Case No. 2012-12, Notice of Arbitration dated 21 November 2011.
- 81.
Philip Morris Brands S.à r.l., Philip Morris Products S.A. and Abal Hermanos S.A. v Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, registered 26 March 2010.
- 82.
Lone Pine Resources Inc. v The Government of Canada, NAFTA, Notice of Arbitration dated 6 September 2013.
- 83.
See, e.g., a report released on 6 March 2015 by the Sierra Club, Issue Brief, No fracking way: how the EU-US trade agreement risks expanding fracking, March 2014, http://action.sierraclub.org/site/DocServer/FoEE_TTIP-ISDS-fracking-060314.pdf?docID=15241 (last accessed 1 March 2017), p. 5: “The proposed investment chapter in the TTIP is expected to include far-reaching rights for foreign investors that could undermine government decisions to ban and regulate fracking. US companies investing in Europe could directly challenge fracking bans or regulations at private international tribunals – potentially paving the way for millions of euro in compensation, paid by European taxpayers.” Further on this issue, see The Council of Canadians, The CETA Deception: The right to regulate—health and environmental standards, http://www.canadians.org/ceta-deception-2 (last accessed 1 March 2017): “Free trade, whether in Canada’s agreements with other countries or at the World Trade Organization, is absolutely designed to limit when, where and how governments regulate. […] These deals also contain investment chapters that give corporations tools to enforce their rights to be free from what they consider overly burdensome regulation. […] The investor-to-state dispute settlement process […] fundamentally undermines health and environmental regulation. Governments may continue to regulate where a policy has been found to violate investment rights, but only after paying fines of tens and even hundreds of millions of dollars.” See also Eberhardt P, Feodoroff T, Lui E, Olivet C and Trew S, The right to say no: EU-Canada trade agreement threatens fracking bans, May 2013, http://corporateeurope.org/sites/default/files/publications/ceta-fracking-briefing.pdf (last accessed 1 March 2017).
- 84.
Philip Morris Asia Limited v The Commonwealth of Australia, PCA Case No. 2012-12, Award on Jurisdiction and Admissibility, 17 December 2015.
- 85.
Philip Morris Brands S.à r.l., Philip Morris Products S.A. and Abal Hermanos S.A. v Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016.
- 86.
- 87.
See, e.g., Open letter by the Alliance for Justice, http://www.afj.org/wp-content/uploads/2015/03/ISDS-Letter-3.11.pdf (last accessed 1 March 2017): “Essentially, corporations use ISDS to challenge government policies, actions, or decisions that they allege reduce the value of their investments. These challenges are not heard in a normal court but instead before a tribunal of private lawyers.”
- 88.
Amendments to the ICSID Rules and Regulations and the Additional Facility Rules, effective 10 April 2006, http://www.worldbank.org/icsid/basicdoc/CRR_English-final.pdf (last accessed 1 March 2017). See also Antonietti (2006).
- 89.
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, adopted by A/RES/68/109, 16 December 2013, http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf (last accessed 1 March 2017).
- 90.
Article 1(1) United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, adopted by A/RES/69/116, 18 December 2014, opened for signature on 17 March 2015, not yet in force, as of 28 October 2016, 16 countries have signed and only Mauritius has ratified – Article 1: “This Convention applies to arbitration between an investor and a State or a regional economic integration organization conducted on the basis of an investment treaty concluded before 1 April 2014”. See also Arbitration Institute of the Stockholm Chamber of Commerce, Mauritius Convention and UNCITRAL Rules on Transparency in SCC case, 22 May 2015, http://sccinstitute.com/media/72819/mauritius-convention-and-uncitral-rules-on-transparency-in-scc-cases.pdf (last accessed 1 March 2017); Schill S, The Mauritius Convention on Transparency: A Model for Investment Law Reform?, EJIL:Talk 8 April 2015.
- 91.
As for the publication of awards under NAFTA’s chapter 11, see NAFTA, Annex 1137.4: Publication of an Award, pursuant to which either the investor or the respondent may make an award public in cases where Canada or the U.S. is/are disputing parties. No similar allowance is contained for Mexico. However, the publication of documents submitted to arbitral tribunal constituted under NAFTA chapter 11 became mandatory by virtue of a binding interpretation of the NAFTA Free Trade Commission. See Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2001, http://www.state.gov/documents/organization/38790.pdf (last accessed 1 March 2017). While the possibility for amicus briefs has not been formally provided for in NAFTA itself, it has been, first of all, permitted within arbitral practice—see Methanex Corporation v United States of America, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to Intervene as “amici curiae” of 15 January 2001, para. 53—and subsequently confirmed by the Statement of the NAFTA Free Trade Commission on Non-Disputing Party Participation (7 October 2003), http://www.state.gov/documents/organization/38791.pdf (last accessed 1 March 2017). Similarly, NAFTA does not regulate public access to hearings. This issue had, however, been addressed by a joint statement of the Governments of Canada and the United States guaranteeing public hearings in NAFTA proceedings to which they are a disputing party. See Office of the U.S. Trade Representative, NAFTA Commission Announces New Transparency Measures of 7 October 2003, https://ustr.gov/archive/Document_Library/Press_Releases/2003/October/NAFTA_Commission_Announces_New_Transparency_Measures.html (last accessed 1 March 2017). This step was subsequently followed by Mexico, see NAFTA Free Trade Commission Joint Statement – A Decade of Achievement, 16 July 2004, https://ustr.gov/archive/Document_Library/Press_Releases/2004/July/NAFTA_Free_Trade_Commission_Joint_Statement_-_A_Decade_of_Achievement.html (last accessed 1 March 2017). See also Calamita (2014), p. 653 et seq. Generally on transparency, see, e.g., Veeder (2006), Mann (2008), Delaney and Magraw (2008), Maupin (2013).
- 92.
See Open letter by law professors, 7 April 2015, https://www.mcgill.ca/fortier-chair/files/fortier-chair/isds_letter-april_20_final.docx (last accessed 1 March 2017), p. 5: “The United States and Canada have been champions of transparency in investment treaty arbitration. Each has, since 2001, maintained a website where they post the awards rendered in the cases they defend. They also post pleadings, memorials, and procedural decisions. Mexico has followed the same practice in NAFTA Chapter 11 proceedings. These materials are available for free. In that respect they are more easily and widely available than documents in most U.S. courts. The U.S. federal government maintains an electronic records system for domestic litigation, but users must pay for access ($.10 per page).”
- 93.
See, e.g., Open letter by the Alliance for Justice: “ISDS grants foreign corporations a special legal privilege, the right to initiate dispute settlement proceedings against a government for actions that allegedly cause a loss of profit for the corporation. Essentially, corporations use ISDS to challenge government policies, actions, or decisions that they allege reduce the value of their investments.”
- 94.
See also the examples given infra in the text at n. 110.
- 95.
See, e.g., Article [12] Norwegian Draft Model BIT (2007), https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf (last accessed 1 March 2017): “Nothing in this Agreement shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Agreement that it considers appropriate to ensure that investment activity is undertaken in a manner sensitive to health, safety or environmental concerns.” Article 6(6) Finland-China BIT (2004), http://investmentpolicyhub.unctad.org/Download/TreatyFile/733 (last accessed 1 March 2017): “Provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination by a Contracting Party, or a disguised investment restrict, nothing in this Agreement shall be construed as preventing the Contracting Parties from taking any measure necessary for the maintenance of public order.” See also Article 43 EFTA-Singapore FTA (2002), http://www.efta.int/media/documents/legal-texts/free-trade-relations/singapore/EFTA-Singapore%20Free%20Trade%20Agreement.pdf (last accessed 1 March 2017): “Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure consistent with this Chapter that is in the public interest, such as measures to meet health, safety or environmental concerns”. Preamble Consolidated CETA Text: “Recognizing that the provisions of this Agreement preserve the right to regulate within their territories and resolving to preserve their flexibility to achieve legitimate policy objectives, such as public health, safety, environment, public morals and the promotion and protection of cultural diversity”.
- 96.
See, e.g., Parkerings v Lithuania, ICSID Case No. ARB/05/8, Award, 11 September 2007, para. 332: “It 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.” Plama v Bulgaria, ICSID Case No. ARB/03/24, Award, 27 August 2008, para. 177: “The stability of the legal framework has been identified as ‘an emerging standard of fair and equitable treatment in international law.’ However, the State maintains its legitimate right to regulate, and this right should also be considered when assessing the compliance with the standard of fair and equitable treatment.” Impregilo v Argentina, ICSID Case No. ARB/07/17, Award, 21 June 2011, para. 290: “In the Tribunal’s understanding, fair and equitable treatment cannot be designed to ensure the immutability of the legal order, the economic world and the social universe and play the role assumed by stabilization clauses specifically granted to foreign investors with whom the State has signed investment agreements.” Mobil Investments Canada Inc. & Murphy Oil Corporation v Canada, ICSID Case No. ARB(AF)/07/4, Decision on Liability and on Principles of Quantum, 22 May 2012, para. 153: “This applicable [FET] standard does not require a State to maintain a stable legal and business environment for investments, if this is intended to suggest that the rules governing an investment are not permitted to change, whether to a significant or modest extent. Article 1105 may protect an investor from changes that give rise to an unstable legal and business environment, but only if those changes may be characterized as arbitrary or grossly unfair or discriminatory, or otherwise inconsistent with the customary international law standard. In a complex international and domestic environment, there is nothing in Article 1105 to prevent a public authority from changing the regulatory environment to take account of new policies and needs, even if some of those changes may have far-reaching consequences and effects, and even if they impose significant additional burdens on an investor. Article 1105 is not, and was never intended to amount to, a guarantee against regulatory change, or to reflect a requirement that an investor is entitled to expect no material changes to the regulatory framework within which an investment is made.” Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v Argentina, ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010, para. 216: “In interpreting the meaning of ‘just’ or ‘fair and equitable treatment’ to be accorded to investors, the Tribunal must balance the legitimate and reasonable expectations of the Claimants with [the] right to regulate the provision of a vital public service.” See also Yannaca-Small (2005), Titi (2014), Henckels (2012).
- 97.
See, e.g., Article 1131 NAFTA or Article 31 of the 2012 US Model BIT.
- 98.
See ICSID Secretariat, Possible Improvements of the Framework for ICSID Arbitration, Discussion Paper, 22 October 2004; Sauvant and Chiswick-Patterson (2008).
- 99.
Article 28(10) of the 2012 US Model BIT; Article 28(10) Annex D US-Rwanda BIT (2012), http://www.state.gov/documents/organization/101735.pdf (last accessed 1 March 2017); Article 28(10) Annex E US-Uruguay BIT (2006), https://ustr.gov/sites/default/files/uploads/agreements/bit/asset_upload_file748_9005.pdf (last accessed 1 March 2017).
- 100.
See Open letter by the Alliance for Justice: “ISDS proceedings lack many of the basic protections and procedures of the justice system normally available in a court of law. There is no appeals process. There is no oversight or accountability of the private lawyers who serve as arbitrators, many of whom rotate between being arbitrators and bringing cases for corporations against governments. The system is also a one-way ratchet because corporations can sue, forcing governments to spend significant resources, while governments impacted by foreign corporations cannot bring any claims.” Weisman J, Trans-Pacific Partnership seen as Door for Foreign Suits against U.S., New York Times, 25 March 2015, http://www.nytimes.com/2015/03/26/business/trans-pacific-partnership-seen-as-door-for-foreign-suits-against-us.html? (last accessed 1 March 2017).
- 101.
See, inter alia, Article 6(7) UNCITRAL Arbitration Rules 2010: “The appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.” Article 14(1) ICSID Convention: “Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.” See also IBA Guidelines on Conflicts of Interest in International Arbitration, approved on 22 May 2004 by the Council of the International Bar Association, http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx (last accessed 1 March 2017).
- 102.
- 103.
See e.g., Open letter by the Alliance for Justice: “This practice [of ISA] threatens domestic sovereignty and weakens the rule of law by giving corporations special legal rights, allowing them to ignore domestic courts, and subjecting the United States to extrajudicial private arbitration.” See also Broß (2015).
- 104.
EU Trade Commissioner de Gucht launched a public consultation on the EU’s investment chapter within the EU-US Free Trade negotiations. See European Commission, Press Release of 21 January 2014, Commission to consult European public on provisions in EU-US trade deal on investment and investor-state dispute settlement.
- 105.
Among them: Question 6: Transparency in ISDS; Question 7: Multiple claims and relationship to domestic courts; Question 8: Arbitrator ethics, conduct and qualification; Question 9: Reducing the risk of frivolous and unfounded cases; Question 10: Allowing claims to proceed (filter); Question 11: Guidance by the Parties (the EU and the US) on the interpretation of the agreement; Question 12: Appellate Mechanism and consistency of rulings.
- 106.
For further details, see European Commission, Preliminary report (statistical overview), Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP), July 2014, http://trade.ec.europa.eu/doclib/docs/2014/july/tradoc_152693.pdf (last accessed 1 March 2017), p. 2.
- 107.
European Commission, Report Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement, SWD(2015) 3 final.
- 108.
European Commission, SWD(2015) 3 final, p. 3.
- 109.
In this regard, it is telling that according to the European Commission a significant number of the questions on specific issues regarding ISA posed by the EU Commission in its public consultation on ISDS were frequently answered with phrases such as “no comment – I don’t think that ISDS should be part of TTIP”, see European Commission, SWD(2015) 3 final, p. 10.
- 110.
See also the discussion supra text at fn. 94.
- 111.
Canada Model FIPA 2004; US Model BIT 2004.
- 112.
See, e.g., Parkerings v Lithuania, ICSID Case No. ARB/05/8, Award, 11 September 2007, para. 332: “It 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.” Plama v Bulgaria, ICSID Case No. ARB/03/24, Award, 27 August 2008, para. 177: “The stability of the legal framework has been identified as ‘an emerging standard of fair and equitable treatment in international law.’ However, the State maintains its legitimate right to regulate, and this right should also be considered when assessing the compliance with the standard of fair and equitable treatment.” Impregilo v Argentina, ICSID Case No. ARB/07/17, Award, 21 June 2011, para. 290: “In the Tribunal’s understanding, fair and equitable treatment cannot be designed to ensure the immutability of the legal order, the economic world and the social universe and play the role assumed by stabilization clauses specifically granted to foreign investors with whom the State has signed investment agreements.” Mobil Investments Canada Inc. & Murphy Oil Corporation v Canada, ICSID Case No. ARB(AF)/07/4, Decision on Liability and on Principles of Quantum, 22 May 2012, para. 153: “This applicable [FET] standard does not require a State to maintain a stable legal and business environment for investments, if this is intended to suggest that the rules governing an investment are not permitted to change, whether to a significant or modest extent. Article 1105 may protect an investor from changes that give rise to an unstable legal and business environment, but only if those changes may be characterized as arbitrary or grossly unfair or discriminatory, or otherwise inconsistent with the customary international law standard. In a complex international and domestic environment, there is nothing in Article 1105 to prevent a public authority from changing the regulatory environment to take account of new policies and needs, even if some of those changes may have far-reaching consequences and effects, and even if they impose significant additional burdens on an investor. Article 1105 is not, and was never intended to amount to, a guarantee against regulatory change, or to reflect a requirement that an investor is entitled to expect no material changes to the regulatory framework within which an investment is made.” Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v Argentina, ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010, para. 216: “In interpreting the meaning of ‘just’ or ‘fair and equitable treatment’ to be accorded to investors, the Tribunal must balance the legitimate and reasonable expectations of the Claimants with [the] right to regulate the provision of a vital public service.” See also Yannaca-Small (2005), Titi (2014), Henckels (2012).
- 113.
Article X.9(1) Consolidated 2014 CETA text and Article 8.10(1) Revised 2016 CETA text.
- 114.
Article X.9(2) Consolidated 2014 CETA text and Article 8.10(2) Revised 2016 CETA text.
- 115.
See e.g. Occidental Exploration and Petroleum Company v The Republic of Ecuador, UNCITRAL, Award, 1 July 2004, para. 183: “Although fair and equitable treatment is not defined in the Treaty, the Preamble clearly records the agreement of the parties that such treatment ‘is desirable in order to maintain a stable framework for investment and maximum effective utilization of economic resources’. The stability of the legal and business framework is thus an essential element of fair and equitable treatment.” See also CMS Gas Transmission Company v The Republic of Argentina, ICSID Case No. ARB/01/8, Award, 12 May 2005, para. 276 et seq.: “276. In addition to the specific terms of the Treaty, the significant number of treaties, both bilateral and multilateral, that have dealt with this standard also unequivocally shows that fair and equitable treatment is inseperable (sic!) from stability and predictability. […] 277. It is not a question of whether the legal framework might need to be frozen as it can always evolve and be adapted to changing circumstances, but neither is it a question of whether the framework can be dispensed with altogether when specific commitments to the contrary have been made. The law of foreign investment and its protection has been developed with the specific objective of avoiding such adverse legal effects.” Dolzer and Schreuer (2012), p. 145 et seq.
- 116.
European Commission, Fact sheet, Investment Protection and Investor-to-State Dispute Settlement in EU agreements, November 2013, pp. 2 and 7 et seq.
- 117.
NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions: “The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.” See also, e.g., Salacuse (2010), p. 216; Lorz (2015), p. 766 et seq.
- 118.
Article X.9(6) Consolidated 2014 CETA text and Article 8.10(5) Revised 2016 CETA text: “For greater certainty, ‘full protection and security’ refers to the Party’s obligations relating to physical security of investors and covered investments.”
- 119.
See, e.g., Saluka Investments BV (The Netherlands) v The Czech Republic, Partial Award, 17 March 2006, para. 484: “The practice of arbitral tribunals seems to indicate, however, that the ‘full security and protection’ clause is not meant to cover just any kind of impairment of an investor’s investment, but to protect more specifically the physical integrity of an investment against interference by use of force.” Suez, Sociedad General de Aguas de Barcelona S.A., and InterAgua Servicios Integrales del Agua S.A. v The Argentine Republic, ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010, para. 169: “the absence of the word ‘full’ or ‘fully’ in the full protection and security provisions […] supports this view of an obligation limited to providing physical protection and related legal remedies for the Spanish Claimants and their assets.”
- 120.
See, e.g., Siemens A.G. v Argentina, ICSID Case No. ARB/02/08, Award, 6 February 2007, para. 303: “the obligation to provide full protection and security [was] wider than ‘physical’ protection and security” because it was “difficult to understand how the physical security of an intangible asset would be achieved.” Compañiá de Aguas del Aconquija S.A. and Vivendi Universal v Argentine Republic, ICSID Case No. ARB/97/3, Award, 20 August 2007, para. 7.4.15: “If the parties to the BIT had intended to limit the obligation to ‘physical interferences’, they could have done so by including words to that effect in the section. In the absence of such words of limitation, the scope of the Article 5(1) protection should be interpreted to apply to reach any act or measure which deprives an investor’s investment of protection and full security, providing, in accordance with the Treaty’s specific wording, the act or measure also constitutes unfair and inequitable treatment. Such actions or measures need not threaten physical possession or the legally protected terms of operation of the investment.”
- 121.
Article X.11 Consolidated 2014 CETA text and Article 8.12 Revised 2016 CETA text.
- 122.
Annex B.13(1) Canada Model BIT 2004.
- 123.
Annex B US Model BIT 2012.
- 124.
Mostafa (2008), Bungenberg (2015), p. 28; see also UNCTAD, Expropriation: UNCTAD Series on Issues in International Investment Agreements II, 2012, http://unctad.org/en/Docs/unctaddiaeia2011d7_en.pdf (last accessed 1 March 2017), p. 79.
- 125.
Annex X.11(3) Consolidated 2014 CETA text and Annex 8-A(3) Revised 2016 CETA text: “For greater certainty, except in the rare circumstance where the impact of the measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures by a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations.”
- 126.
See, e.g., Telenor v Hungary, ICSID Case No. ARB/04/15, Award, 13 September 2006, para. 64: “It is well established that the mere exercise by government of regulatory powers that create impediments to business or entail the payment of taxes and other levies does not of itself constitute expropriation.”
- 127.
European Commission, Fact sheet, Investment Protection and Investor-to-State Dispute Settlement in EU agreements, November 2013, p. 2.
- 128.
European Parliament, resolution of 6 April 2011 on the future European international investment policy 2010/2203(INI), para. 19 calling for “protection against direct and indirect expropriation, giving a definition that establishes a clear and fair balance between public welfare objectives and private interests.”
- 129.
Article X.6(1) National Treatment Consolidated 2014 CETA text and Article 8.6(1) Revised 2016 CETA text: “Each Party shall accord to investors of the other Party and to covered investments, treatment no less favourable than the treatment it accords, in like situations to its own investors and to their investments with respect to the establishment, acquisition, expansion, conduct, operation, management, maintenance, use, enjoyment and sale or disposal of their investments in its territory.” This follows the Canada/US approach to ensure market access/admission obligations by extending national treatment to the establishment phase. See, e.g., Article 3(1) US Model BIT 2012. See also Dolzer and Schreuer (2012), p. 89; Reinisch (2015), p. 816.
- 130.
Emilio Agustín Maffezini v Spain, ICSID Case No. ARB/97/7, Decision on Jurisdiction, 25 January 2000.
- 131.
RosInvestCo UK Ltd. v The Russian Federation, SCC Case No. Arb. V079/2005, Award on Jurisdiction 2007.
- 132.
See, e.g., Siemens A.G. v The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction, 3 August 2004; Impreglio S.p.A. v Argentine Republic, ICSID Case No. ARB/07/17, Award, 21 June 2011; Hochtief AG v Argentina, ICSID Case No. ARB/07/31, Decision on Jurisdiction, 24 October 2011; Gas Natural SDG, S.A. v The Argentine Republic, ICSID Case No. ARB/03/10, Decision of the Tribunal on Preliminary Questions on Jurisdiction, 17 June 2005; Camuzzi International S.A. v The Argentine Republic, ICSID Case No. ARB/03/2, Decision on Objection to Jurisdiction, 11 May 2005; National Grid plc v The Argentine Republic, Decision on Jurisdiction, 20 June 2006; AWG Group Ltd. v The Argentine Republic, Decision on Jurisdiction, 3 August 2006; Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v The Argentine Republic, ICSID Case No. ARB/09/1, Decision on Jurisdiction, 21 December 2012.
- 133.
In Plama Consortium Limited v Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction, 8 February 2005, para. 223, the tribunal held that “an MFN provision in a basic treaty does not incorporate by reference dispute settlement provisions in whole or in part set forth in another treaty, unless the MFN provision in the basic treaty leaves no doubt that the Contracting Parties intended to incorporate them.” See also Daimler Financial Services AG v The Argentine Republic, ICSID Case No. ARB/05/1, Decision on Jurisdiction, 22 August 2012. The tribunal in Wintershall Aktiengesellschaft v Argentine Republic, ICSID Case No. ARB/04/14, Award, 8 December 2008, even denied the avoidance of waiting periods.
- 134.
Article X.7(4) Consolidated 2014 CETA text and Article 8.7(4) Revised 2016 CETA text: “For greater certainty, the ‘treatment’ referred to in Paragraph 1 and 2 does not include investor-to-state dispute settlement procedures provided for in other international investment treaties and other trade agreements.”
- 135.
Article X.7(4) Consolidated 2014 CETA text and Article 8.7(4) Revised 2016 CETA text: “Substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute ‘treatment’, and thus cannot give rise to a breach of this article, absent measures adopted by a Party pursuant to such obligations.”
- 136.
See e.g. Berschader v Russian Federation, SCC Case No. 080/2004, Award, 21 April 2006, para. 179: “It is universally agreed that the very essence of an MFN provision in a BIT is to afford to investors all material protection provided by subsequent treaties […].” MTD Equity v Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004, para. 100: “[T]he Tribunal considers it appropriate to examine the MFN clause in the BIT and satisfy itself that its terms permit the use of the provisions of the Denmark BIT and Croatia BIT as a legal basis for the claims submitted to its decision.”
- 137.
See Schill S, Auswirkungen der Bestimmungen zum Investitionsschutz und zu den Investor-Staat-Schiedsverfahren im Entwurf des Freihandelsabkommens zwischen der EU und Kanada (CETA) auf den Handlungsspielraum des Gesetzgebers (Kurzgutachten), 22 September 2014, http://www.bmwi.de/Redaktion/DE/Downloads/C-D/ceta-gutachten-investitionsschutz.html (last accessed 1 March 2017), p. 32. Similarly, Tietje C and Baetens F, The Impact of Investor-State-Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnerships, 24 June 2014, 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 1 March 2017), paras. 108, 111, 115 and 116.
- 138.
Pursuant to Article X.02 of the final provisions of the Consolidated 2014 CETA text, while the Parties may amend the agreement itself, the “Trade Committee may decide to amend the Annexes, Appendices, Protocols and Notes of this Agreement. The Parties may approve the decision subject to their respective applicable internal requirements and procedures. The decision shall enter into force on such date as the Parties may agree.”
- 139.
Article X.42 Consolidated 2014 CETA text and Article 8.44(1) Revised 2016 CETA text.
- 140.
Article X.42 Consolidated 2014 CETA text.
- 141.
Article X.9(3) Consolidated 2014 CETA text and Article 8.10(3) Revised 2016 CETA text: “The Parties shall regularly, or upon request of a Party, review the content of the obligation to provide fair and equitable treatment. The Committee on Services and Investment may develop recommendations in this regard and submit them to the Trade Committee for decision.”
- 142.
NAFTA Free Trade Commission Clarifications Related to NAFTA chapter 11, Decisions of 31 July 2001, http://www.worldtradelaw.net/nafta/chap11interp.pdf (lasst accessed 1 March 2017): “B.1. Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party. 2. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.”
- 143.
Article 2001 NAFTA established the Free Trade Commission. According to Article 1131(2) NAFTA, interpretations adopted by the Free Trade Commission shall be binding upon arbitral tribunals constituted under NAFTA chapter 11. See also Matiation (2003), Brower (2006), Brower (2003), Roberts (2010), Kaufmann-Kohler (2011).
- 144.
Article X.27(2) Consolidated 2014 CETA text and Article 8.31(3) Revised 2016 CETA text, referring to the “CETA Joint Committee” instead of the “Trade Committee”.
- 145.
See e.g., Open letter by the Alliance for Justice: “This practice [of ISA] threatens domestic sovereignty and weakens the rule of law by giving corporations special legal rights, allowing them to ignore domestic courts, and subjecting the United States to extrajudicial private arbitration.” See also Broß (2015).
- 146.
Article 26 ICSID Convention: “Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention”.
- 147.
- 148.
Article X.21 Procedural and Other Requirements for the Submission of a Claim to Arbitration, Consolidated 2014 CETA text: “An investor may submit a claim to arbitration under Article X.22 (Submission of a Claim to Arbitration) only if the investor: […] where it has initiated a claim or proceeding seeking compensation or damages before a tribunal or court under domestic or international law with respect to any measure alleged to constitute a breach referred to in its claim to arbitration, provides a declaration that: a final award, judgment or decision has been made; or it has withdrawn any such claim or proceeding; […].” And see the stricter requirement in Article 8.22(1) Revised 2016 CETA text: “An investor may only submit a claim pursuant to Article 8.23 if the investor: […] (f) withdraws or discontinues any existing proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in its claim; and (g) waives its right to initiate any claim or proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in its claim.”
- 149.
See e.g., Open letter by the Alliance for Justice: “This practice [of ISA] threatens domestic sovereignty and weakens the rule of law by giving corporations special legal rights, allowing them to ignore domestic courts, and subjecting the United States to extrajudicial private arbitration.” See also Broß (2015).
- 150.
- 151.
See e.g. Article 10(1) last sentence ECT: “Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party.”
- 152.
In November 2013, the Trade Justice Network leaked draft texts on CETA at http://www.tradejustice.ca/leakeddocs (accessed in early 2014—those documents have been removed from the internet since). The “Draft CETA Investment Chapter” contained the following suggestion on p. 13: “[EU: Article X Each Party shall observe any specific written obligation it has entered into with regard to an investor of the other Party or an investment of such an investor.]” This would have been in accordance with the EU Commission’s initial position on this issue, see European Commission, COM (2010) 343 final, p. 8.
- 153.
See Lévesque and Newcombe (2013), p. 60 et seq. Also, NAFTA’s chapter 11 on investments does not contain such a clause.
- 154.
Article X.17 Consolidated 2014 CETA text: “Without prejudice to the rights and obligations of the Parties under Chapter [XY](Dispute Settlement), an investor of a Party may submit to arbitration under this Section a claim that the respondent has breached an obligation under: Section 3 (Non-Discriminatory Treatment) of this Chapter, with respect to the expansion, conduct, operation, management, maintenance, use, enjoyment and sale or disposal of its covered investment; or Section 4 (Investment Protection) of this Chapter; and where the investor claims to have suffered loss or damage as a result of the alleged breach.” So similar in Article 8.18(1) Revised 2016 CETA text.
- 155.
E.g. Article 139 of the 2009 China-Peru Free Trade Agreement which empowers the arbitral tribunal to decide on “[a]ny dispute between an investor of one Party and the other Party in connection with an investment in the territory of the other Party”. Some treaties opt for an median approach by providing for an exhaustive list of causes of actions covered by the ISDS mechanism and by defining the breaches listed therein, see e.g. Article 15.15 of the 2003 Singapore-United States FTA: “(a) the claimant, on its own behalf, may submit to arbitration under this Section a claim: (i) that the respondent has breached (A) an obligation under Section B, (B) an investment authorization, or (C) an investment agreement; and (ii) that the claimant has incurred loss or damage by reason of, or arising out of, that breach.”
- 156.
Article 28(10) US Model BIT 2012; United States—Singapore Free Trade Agreement, signed 6 May 2003, entry into force 1 January 2004; see also United States—Morocco Free Trade Agreement, signed 15 June 2004, entry into force 1 January 2006.
- 157.
Article X.42 Consolidated 2014 CETA text.
- 158.
- 159.
WTO Dispute Settlement Understanding, 33 ILM 1226 (1994).
- 160.
The identical or at least similar composition of the actual decision-makers should enhance the likelihood of a consistent case-law. Apparently, the major advantage expected from introducing an appellate mechanism lies in securing more coherence and consistency of investment awards. Clearly, appeals to be decided by a limited number of largely identical decision-makers are likely to be consistent.
- 161.
Article X.42 Consolidated 2014 CETA text.
- 162.
See DePalma A, Nafta’s Powerful Little Secret: Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say, New York Times, 11 March 2001, http://www.nytimes.com/2001/03/11/business/nafta-s-powerful-little-secret-obscure-tribunals-settle-disputes-but-go-too-far.html (last accessed 1 March 2017).
- 163.
See, e.g., “investment treaty arbitration law”, http://www.italaw.com/ (last accessed 1 March 2017); “investment claims”, http://oxia.ouplaw.com/ (last accessed 1 March 2017).
- 164.
Amendments to the ICSID Rules and Regulations and the Additional Facility Rules, effective 10 April 2006, http://www.worldbank.org/icsid/basic doc/CRR_English-final.pdf (last accessed 1 March 2017).
- 165.
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, adopted by A/RES/68/109, 16 December 2013, http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf (last accessed 1 March 2017).
- 166.
Article X.33(1) Consolidated 2014 CETA text and Article 8.36(1) Revised 2016 CETA text.
- 167.
See Article X.33(5) Consolidated CETA text and Article 8.36(5) Revised 2016 CETA text: “Hearings shall be open to the public. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to such hearings. Where the tribunal determines that there is a need to protect confidential or protected information, it shall make the appropriate arrangements to hold in private that part of the hearing requiring such protection.”
- 168.
See DePalma, Nafta’s Powerful Little Secret: Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say. New York Times, 11 March 2001, http://www.nytimes.com/2001/03/11/business/nafta-s-powerful-little-secret-obscure-tribunals-settle-disputes-but-go-too-far.html (last accessed 1 March 2017).
- 169.
See e.g. Monbiot G, This transatlantic trade deal is a full-frontal assault on democracy, The Guardian, 4 November 2013, http://www.theguardian.com/commentisfree/2013/nov/04/us-trade-deal-full-frontal-assault-on-democracy (last accessed 1 March 2017); Muchlinski P, Muir Watt H, Schepel H and Van Harten G, Statement of Concern about Planned Provisions on Investment Protection and Investor-State Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP), 2014, http://www.kent.ac.uk/law/downloads/ttip_isds_public_consultation_final.pdf (last accessed 1 March 2017), p. 20.
- 170.
See, inter alia, Article 6(7) UNCITRAL Arbitration Rules 2010; Article 14(1) ICSID Convention; see also IBA Guidelines on Conflicts of Interest in International Arbitration, approved on 22 May 2004 by the Council of the International Bar Association, http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx (last accessed 1 March 2017).
- 171.
Annex 9-F to the ISDS Section of the EU-Singapore Free Trade Agreement.
- 172.
Annex 9-F to the ISDS Section of the EU-Singapore Free Trade Agreement, 2. Responsibilities to the process: “Throughout the proceedings, every candidate and arbitrator shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved. Arbitrators shall not take instructions from any organisation or government with regard to matters before a tribunal. Former arbitrators must comply with the obligations established in paragraphs 15, 16, 17 and 18 of this Code of Conduct.”
- 173.
Article X.17(3) Consolidated 2014 CETA text and Article 8.18(3) Revised 2016 CETA text.
- 174.
Inceysa Vallisoletana S.L. v Republic of El Salvador, ICSID Case No. ARB/03/26, Award, 2 August 2006.
- 175.
Phoenix Action, Ltd. v Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009.
- 176.
In its scrutiny whether the investment had been made in accordance with the law of the host State, the tribunal did not restrict itself to a consideration of the law of El Salvador. Instead, it reasoned that—because treaties formed part of the law of El Salvador—the BIT with its reference to generally recognized rules and principles of international law allowed it to look at these sources in order to establish the legality or illegality of the investment. Relying on a number of general principles of law, such as Nemo Auditur Propriam Turpitudinem Allegans, the tribunal found, inter alia, “that the foreign investor cannot seek to benefit from an investment effectuated by means of one or several illegal acts and, consequently, enjoy the protection granted by the host State, such as access to international arbitration to resolve disputes, because it is evident that its act had a fraudulent origin and, as provided by the legal maxim, nobody can benefit from his own fraud”. Inceysa Vallisoletana S.L. v Republic of El Salvador, ICSID Case No. ARB/03/26, Award, 2 August 2006, para. 242.
- 177.
Salini Costruttori S.p.A. and Italstrade S.p.A. v Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001, para. 52.
- 178.
Phoenix Action, Ltd. v Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, para. 114: “1 – a contribution in money or other assets; 2 – a certain duration; 3 – an element of risk; 4 – an operation made in order to develop an economic activity in the host State; 5 – assets invested in accordance with the laws of the host State; 6 – assets invested bona fide.”
- 179.
See Saba Fakes v Republic of Turkey, ICSID Case No. ARB/07/20, Award, 14 July 2010, para. 110: “the criteria of (i) a contribution, (ii) a certain duration, and (iii) an element of risk, are both necessary and sufficient to define an investment within the framework of the ICSID Convention. In the Tribunal’s opinion, this approach reflects an objective definition of ‘investment’ that embodies specific criteria corresponding to the ordinary meaning of the term ‘investment’, without doing violence either to the text or the object and purpose of the ICSID Convention.” Deutsche Bank AG v Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB/09/2, Award, 31 October 2012, para. 295: “The development of ICSID case law suggests that only three of the above criteria, namely contribution, risk and duration should be used as the benchmarks of investment, without a separate criterion of contribution to the economic development of the host State and without reference to a regularity of profit and return. It should also be recalled that the existence of an investment must be assessed at its inception and not with hindsight.”
- 180.
Article X.3 Consolidated 2014 CETA text and Article 8.1 Revised 2016 CETA text.
- 181.
Article X.36(5) CETA Consolidated 2014 CETA text and Article 8.39(5) Revised 2016 CETA text, provide that an ISDS tribunal “shall” order that the costs of arbitration be borne by the unsuccessful disputing party.
- 182.
Article X.29(1) Consolidated 2014 CETA text and Article 8.32(1) Revised 2016 CETA text: “The respondent may, no later than 30 days after the constitution of the tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit.”
- 183.
Article X.30(1) Consolidated 2014 CETA text and Article 8.33(1) Revised 2016 CETA text: “Without prejudice to a tribunal’s authority to address other objections as a preliminary question or to a respondent’s right to raise any such objections at any appropriate time, the Tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim, or any part thereof, submitted pursuant to Article X.22 (Submission of a Claim to Arbitration) is not a claim for which an award in favour of the claimant may be made under this Section, even if the facts alleged were assumed to be true.”
- 184.
- 185.
See Trans-Global Petroleum, Inc. v Jordan, ICSID Case No. ARB/07/25, Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008, in which some claims were dismissed as “manifestly without legal merit”.
- 186.
Article X.18 Consolidated 2014 CETA text and Article 8.19 Revised 2016 CETA text: “Any dispute should as far as possible be settled amicably. Such a settlement may be agreed at any time, including after the arbitration has been commenced. Unless the disputing parties agree to a longer period, consultations shall be held within 60 days of the submission of the request for consultations pursuant to paragraph 3.”
- 187.
Article 8.20(1) Revised 2016 CETA text.
- 188.
Article X.19 Consolidated CETA text and Article 8.20 Revised 2016 CETA text: “The disputing parties may at any time agree to have recourse to mediation.”
- 189.
See Article 5.1 WTO Dispute Settlement Understanding: “Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the dispute so agree.”
- 190.
Article X.19(4) Consolidated 2014 CETA text and Article 8.20(4) Revised 2016 CETA text: “The disputing parties shall endeavour to reach a resolution to the dispute within 60 days from the appointment of the mediator.”
- 191.
Commission draft text TTIP – investment, 16 September 2015, http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf (last accessed 1 March 2017).
- 192.
According to the Commission the document “is not a formal text proposal to the United States in the TTIP negotiations but an internal document of the European Union. The Commission will consult the EU’s Member States in the Council and will discuss the proposal with the European Parliament before presenting a formal text proposal to the United States.” Commission draft text TTIP – investment, p. 1.
- 193.
Article 2(1) Commission draft text TTIP – investment: “The provisions of this section shall not affect the right of the Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives, such as the protection of public health, safety, environment or public morals, social or consumer protection or promotion and protection of cultural diversity.”
- 194.
Open letter by the Alliance for Justice, http://www.afj.org/wp-content/uploads/2015/03/ISDS-Letter-3.11.pdf (last accessed 1 March 2017).
- 195.
Open letter by law professors, 7 April 2015, https://www.mcgill.ca/fortier-chair/files/fortier-chair/isds_letter-april_20_final.docx (last accessed 1 March 2017), p. 2: “It is not correct that investment treaty arbitration permits corporations to initiate dispute settlement against governments ‘for actions that allegedly cause a loss of profit for the corporation’. ‘Lost profits’ is merely a measure of damages, not a cause of action, which must be predicated on allegedly wrongful government acts, such as discriminating against foreigners or failing to provide them with due process, that violate the express terms of a treaty.”
- 196.
Article 2(2) Commission draft text TTIP – investment: “For greater certainty, the provisions of this section shall not be interpreted as a commitment from a Party that it will not change the legal and regulatory framework, including in a manner that may negatively affect the operation of covered investments or the investor’s expectations of profits.”
- 197.
In Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v Romania, ICSID Case No. ARB/05/20, Final Award, 11 December 2013, an ICSID tribunal came to the conclusion that the termination of a state aid program constituted a violation of FET. When the investors tried to enforce their award the Commission took various steps to prevent this; Chevry (2015), p. 114 et seq.
- 198.
Article 2(4) Commission draft text TTIP – investment: “For greater certainty, nothing in this Section shall be construed as preventing a Party from discontinuing the granting of a subsidy and/or requesting its reimbursement, or as requiring that Party to compensate the investor therefor, where such action has been ordered by one of its competent authorities listed in Annex III.”
- 199.
Section 3—Resolution of Investment Disputes and Investment Court System, Commission draft text TTIP – investment.
- 200.
As to potential problems concerning the envisaged enforcement regime see infra text starting at fn. 219.
- 201.
Section 3, Article 9(4) Commission draft text TTIP – investment: “The Judges shall possess the qualifications required in their respective countries for appointment to judicial office, or be jurists of recognised competence. They shall have demonstrated expertise in public international law. It is desirable that they have expertise in particular, in international investment law, international trade law and the resolution of disputes arising under international investment or international trade agreements.”
- 202.
See S&D Position Paper on Investor-state dispute settlement mechanisms in ongoing trade negotiations, 4 March 2015.
- 203.
See, inter alia, Article 6(7) UNCITRAL Arbitration Rules 2010: “The appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.” Article 14(1) ICSID Convention: “Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.” See also IBA Guidelines on Conflicts of Interest in International Arbitration, approved on 22 May 2004 by the Council of the International Bar Association, http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx (last accessed 1 March 2017).
- 204.
Section 3, Article 11(1) last sentence Commission draft text TTIP – investment.
- 205.
Section 3, Article 9(12) Commission draft text TTIP – investment: “In order to ensure their availability, the Judges shall be paid a monthly retainer fee to be fixed by decision of the […] Committee. [Note: the retainer fee suggested by the EU would be around 1/3rd of the retainer fee for WTO Appellate Body members (i.e. around €2000 per month)] […]”.
- 206.
Section 3, Article 9(14) Commission draft text TTIP – investment.
- 207.
Section 3, Article 9(15) Commission draft text TTIP – investment: “In that event, the Judges shall not be permitted to engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the President of the Tribunal.”
- 208.
Section 3, Article 9(6)(7) Commission draft text TTIP – investment: “6. The Tribunal shall hear cases in divisions consisting of three Judges, of whom one shall be a national of a Member State of the European Union, one a national of the United States and one a national of a third country. The division shall be chaired by the Judge who is a national of a third country. 7. Within 90 days of the submission of a claim pursuant to Article 6, the President of the Tribunal shall appoint the Judges composing the division of the Tribunal hearing the case on a rotation basis, ensuring that the composition of the divisions is random and unpredictable, while giving equal opportunity to all Judges to serve.” See also Section 3, Article 10(8)(9) Commission draft text TTIP – investment, for the Appeal Tribunal.
- 209.
See e.g. Articles 38 and 39 ICSID Convention.
- 210.
Section 3, Article 9(2) Commission draft text TTIP – investment: “The […] Committee shall, upon the entry into force of this Agreement, appoint fifteen Judges to the Tribunal. Five of the Judges shall be nationals of a Member State of the European Union, five shall be nationals of the United States and five shall be nationals of third countries.” See also Section 3, Article 10(2) Commission draft text TTIP – investment, for the Appeal Tribunal: “The Appeal Tribunal shall be composed of six Members, of whom two shall be nationals of a Member State of the European Union, two shall be nationals of the United States and two shall be nationals of third countries.”
- 211.
Article 52(1) ICSID Convention: “Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.”
- 212.
See Article V(1) Convention on the Recognition and Enforcement of Foreign Arbitral Awards: “Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding, on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.”
- 213.
Section 3, Article 29(1) Commission draft text TTIP – investment.
- 214.
Section 3, Article 29(2) Commission draft text TTIP – investment: “If the Appeal Tribunal rejects the appeal, the provisional award shall become final. If the appeal is well founded, the Appeal Tribunal shall modify or reverse the legal findings and conclusions in the provisional award in whole or part.”
- 215.
Section 3, Article 28(7) Commission draft text TTIP – investment.
- 216.
Section 3, Article 29(3) Commission draft text TTIP – investment.
- 217.
In particular, whether the limited extension possibility to a total of 9 months, provided for in Section 3, Article 29(3) Commission draft text TTIP – investment, will be sufficient.
- 218.
Section 3, Article 30(1) Commission draft text TTIP – investment: “Final awards issued pursuant to this Chapter by the Tribunal or the Appeal Tribunal shall be binding between the disputing parties and shall not be subject to appeal, review, set aside, annulment or any other remedy.” Compare with Article 53(1) ICSID Convention: “The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention.”
- 219.
Section 3, Article 30(2) Commission draft text TTIP – investment.
- 220.
Article 54(1) ICSID Convention: “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.”
- 221.
Pursuant to Article 67 ICSID Convention, the convention is only accessible for Member States of the International Bank for Reconstruction and Development or to any other State which is a party to the ICJ Statute.
- 222.
See Reinisch (2016).
- 223.
Section 3, Article 30(1) Commission draft text TTIP – investment: “Final awards issued pursuant to this Chapter by the Tribunal or the Appeal Tribunal shall be binding between the disputing parties and shall not be subject to appeal, review, set aside, annulment or any other remedy.”
- 224.
Section 3, Article 30(3) Commission draft text TTIP – investment: “Execution of the award shall be governed by the laws concerning the execution of judgments in force where such execution is sought.”
- 225.
Article 55 ICSID Convention: “Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.”
- 226.
See Reinisch (2010a).
- 227.
See Shihata (1986).
- 228.
Section 3, Article 18(1) Commission draft text TTIP – investment: “The “UNCITRAL Transparency Rules” shall apply to disputes under this Section, with the following additional obligations.”
- 229.
Section 3, Article 17(1) Commission draft text TTIP – investment: “Without prejudice to the Tribunal’s authority to address other objections as a preliminary question or to a respondent’s right to raise any such objections at any appropriate time, the Tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim, or any part thereof, submitted under this section is not a claim for which an award in favour of the claimant may be made under Article 6, even if the facts alleged were assumed to be true. The Tribunal may also consider any relevant facts not in dispute.”
- 230.
Annex I Mediation Mechanism for investor-to-state disputes, Commission draft text TTIP – investment.
- 231.
Article X.19(4) Consolidated 2014 CETA text and Article 8.20(4) Revised 2016 CETA text: “The disputing parties shall endeavour to reach a resolution to the dispute within 60 days from the appointment of the mediator.”
- 232.
CJEU, opinion 2/13, Accession to the ECHR, ECLI:EU:C:2014:2454.
- 233.
- 234.
CJEU, opinion 1/91, European Economic Area I, ECLI:EU:C:1991:490.
- 235.
CJEU, opinion 1/09, European and Community Patent Court, ECLI:EU:C:2011:123.
- 236.
CJEU, opinion 2/13, Accession to the ECHR, ECLI:EU:C:2014:2454.
- 237.
See e.g. Article 9(1) Austrian 2008 Model BIT: “Any dispute arising out of an investment, between a Contracting Party and an investor of the other Contracting Party shall, as far as possible, be settled amicably between the parties to the dispute.” Article 2(4) Austria-Chile BIT 1997: “In the event of a dispute between a Party and an investor of the other Party relating to an investment, the parties to the dispute shall initially seek to resolve the dispute by consultations and negotiations.” Article 8 Argentina-France BIT 1991: “1. Any dispute relating to investments made under this Agreement between one Contracting Party and an investor of the other Contracting Party shall, as far as possible, be settled amicably between the two parties concerned.”
- 238.
See, e.g., Article 1116(1) NAFTA: “An investor of a Party may submit to arbitration under this Section a claim that another Party has breached an obligation under: (a) Section A or Article 1503(2) (State Enterprises), or (b) Article 1502(3)(a) (Monopolies and State Enterprises) where the monopoly has acted in a manner inconsistent with the Party’s obligations under Section A, and that the investor has incurred loss or damage by reason of, or arising out of, that breach.” Section A only mentions treaty standards of the NAFTA, not domestic legislation.
- 239.
Section 3, Article 13(1) Applicable law and rules of interpretation, Commission draft text TTIP – investment: “The Tribunal shall determine whether the treatment subject to the claim is inconsistent with any of the provisions referred to in Article 1(1) alleged by the claimant.” Section 3, Article 1(1): “This Section shall apply to a dispute between, on the one hand, a claimant of one Party and, on the other hand, the other Party concerning treatment alleged to breach [investment protection provisions, i.e. the investment protection section and the national treatment and the most-favoured nation treatment provisions concerning post-establishment], which breach allegedly causes loss or damage to the claimant or its locally established company.”
- 240.
Section 3, Article 13(3) Applicable law and rules of interpretation, Commission draft text TTIP – investment: “For greater certainty, pursuant to paragraph 1, the domestic law of the Parties shall not be part of the applicable law. Where the Tribunal is required to ascertain the meaning of a provision of the domestic law of one of the Parties as a matter of fact, it shall follow the prevailing interpretation of that provision made by the courts or authorities of that Party.”
- 241.
Section 3, Article 13(4) Applicable law and rules of interpretation, Commission draft text TTIP – investment: “For greater certainty, the meaning given to the relevant domestic law made by the Tribunal shall not be binding upon the courts or the authorities of either Party. The Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of the disputing Party.”
References
Akkermans B, Ramaekers E (2010) Article 345 TFEU (ex Article 295 EC), its meanings and interpretations. Eur Law J 16(3):292–314
Antonietti A (2006) The 2006 amendments to the ICSID rules and regulations and the additional Facility rules. ICSID Rev Foreign Invest Law J 21(2):427–448
Bischoff J (2011) Just a little bit of “mixity”? The EU’s role in the field of international investment protection law. Common Mark Law Rev 48(5):1527–1569
Broß S (2015) Freihandelsabkommen, einige Anmerkungen zur Problematik der privaten Schiedsgerichtsbarkeit. Hans Böckler Stiftung Report Nr 4
Brower CH (2001–2002) Investor-state disputes under NAFTA: the empire strikes back. Columbia J Transnational Law 40:43–88
Brower CH (2003) Structure, legitimacy, and NAFTA’s investment chapter. Vanderbilt J Transnlational Law 36:37–94
Brower CH (2006) Why the FTC notes of interpretation constitute a partial amendment of NAFTA article 1105. Va J Int Law 46(2):347–363
Brown C, Naglis I (2013) Dispute settlement in future EU investment agreements. In: Bungenberg M, Reinisch A, Tietje C (eds) EU and investment agreements – open questions and remaining challenges. Nomos, Baden-Baden, pp 17–36
Bungenberg M (2010) Going global? The EU common commercial policy after Lisbon. In: Hermann C, Terhechte JP (eds) European yearbook of international economic law, vol 1. Springer, Heidelberg, pp 23–151
Bungenberg M (2011) The division of competences between the EU and its member states in the area of investment politics. In: Bungenberg M, Griebel J, Hindelang S (eds) European yearbook of international economic law, special issue: international investment law and EU law – special issue. Springer, Baden-Baden, pp 29–42
Bungenberg M, Griebel J, Hindelang S (eds) (2011) European yearbook of international economic law, special issue: international investment law and EU law – special issue. Springer, Baden-Baden
Bungenberg M (2015) Towards a more balanced international investment law 2.0? In: Herrmann C, Simma B, Streinz R (eds) Trade policy between law, diplomacy and scholarship – Liber amicorum in memoriam Horst G Krenzler. Springer International Publishing, New York, pp 15–38
Bungenberg M, Hobe S (2015) The relationship of international investment law and European Union law. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law. Nomos/Hart, Baden-Baden/Oxford, pp 1602–1628
Burgstaller M (2012) Investor-state arbitration in EU international investment agreements with third states. Leg Issues Econ Integr 39(2):207–221
Burgstaller M (2014) Dispute settlement in EU international investment agreements with third states: three salient problems. In: Bungenberg M, Reinisch A (eds) The anatomy of the (invisible) EU model BIT. J World Invest Trade 15:551–569
Calamita NJ (2014) Dispute settlement transparency in Europe’s evolving investment treaty policy. In: Bungenberg M, Reinisch A (eds) The anatomy of the (invisible) EU model BIT. J World Invest Trade 15:645–678
Chaisse J (2012) Promises and pitfalls of the European Union policy on foreign investment – how will the new EU competence on FDI affect the emerging global regime? J Int Econ Law 15(1):51–84
Chevry J (2015) Micula v Romania. World Trade Rev 14:540
Craig P, De Burca G (2011) EU law: text, cases, and materials, 5th edn. Oxford University Press, Oxford
Delaney J, Magraw D (2008) Procedural transparency. In: Muchlinski P, Ortino F, Schreuer S (eds) The Oxford handbook of international investment law. Oxford University Press, Oxford, pp 721–788
Dimopoulos A (2008) The common commercial policy after Lisbon: establishing parallelism between internal and external economic relations? Croat Yearb Eur Law Policy 4(4):101–116
Dimopoulos A (2011) EU foreign investment law. Oxford University Press, Oxford
Dimopoulos A (2012) The compatibility of future EU investment agreements with EU law. Leg Issues Econ Integr 39(4):447–471
Dodge WS (2006) Investor-state dispute settlement between developed countries: reflection on the Australia-United States free trade agreement. Vanderbilt J Transnational Law 39(1):1–37
Dolzer R, Schreuer C (2012) Principles of international investment law, 2nd edn. Oxford University Press, Oxford
Douglas Z (2009) The international law of investment claims. Cambridge University Press, Cambridge
Eeckhout P (2011) External relations law, 2nd edn. Oxford University Press, Oxford
Gaukroder D, Gordon K (2012) Investor-state dispute settlement: a scoping paper for the investment policy community. OECD Working Papers on International Investment No. 2012/3
Henckels C (2012) Indirect expropriation and the right to regulate: revisiting proportionality analysis and the standard of review in investor-state arbitration. J Int Econ Law 15(1):223–255
Hillion C, Koutrakos P (2010) Mixed agreements revisited. Hart, Oxford
Hindelang S (2011) Der primärrechtliche Rahmen einer EU-Investitionsschutzpolitik: Zulässigkeit und Grenzen von Investor-Staat-Schiedsverfahren aufgrund künftiger EU Abkommen. In: Bungenberg M, Herrmann C (eds) Die Gemeinsame Handelspolitik der Europäischen Union nach Lissabon. Nomos, Baden-Baden, pp 157–184
Hindelang S (2013) The autonomy of the European legal order – EU constitutional limits to investor-state arbitration on the basis of future EU investment-related agreements. In: Bungenberg M, Hermann C (eds) European yearbook of international economic law, Special Issue Common Commercial Policy after Lisbon. Springer, Heidelberg, pp 187–198
Hindelang S (2015) Repellent forces: the CJEU and investor-state dispute settlement. Archiv des Völkerrechts 53(1):68–89
Hoffmeister F, Ünüvar G (2013) From BITS and pieces towards European investment agreements. In: Bungenberg M, Reinisch A, Tietje C (eds) EU and investment agreements – open questions and remaining challenges. Nomos/Hart, Baden-Baden/Oxford, pp 57–86
Jenkins BW (2007) The next generation of chilling uncertainty: indirect expropriation under CAFTA and its potential impact on environmental protection. Ocean Coast Law J 12(2):269–304
Johnson OT, Gimblett J (2012) From gunboats to BITs: the evolution of modern international investment law. In: Sauvant K (ed) Yearbook on international investment law and policy 2010–2011. Oxford University Press, Oxford, pp 649–692
Kaufmann-Kohler G (2011) Interpretive powers of the free trade commission and the rule of law. In: Gaillard E, Bachand F (eds) Fifteen years of NAFTA chapter 11 arbitration. IAI Series on International Arbitration 7:175–194
Kläger R (2014) The impact of the TTIP on Europe’s investment arbitration architecture. Zeitschrift für Deutsches und Amerikanisches Recht 39(2):68–73
Lentner G (2014) A uniform European investment policy?: The unwritten EU model BIT. J Law Adm Sci 2:156–165
Lévesque C (2013) The challenges of ‘marrying’ investment liberalisation and protection in the Canada-EU CETA. In: Bungenberg M, Reinisch A, Tietje C (eds) EU and investment agreements – open questions and remaining challenges. Nomos/Hart, Baden-Baden/Oxford, pp 121–146
Lévesque C, Newcombe A (2013) Canada. In: Brown C (ed) Commentaries on selected model investment treaties. Oxford University Press, Oxford, pp 53–129
Lorz RA (2015) Protection and security (including the NAFTA approach). In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law. Nomos, Baden-Baden, pp 764–789
Mann H (2008) Transparency and consistency in international investment law: can the problem be fixed by tinkering? In: Sauvant K (ed) Appeals mechanism in international investment disputes. Oxford University Press, Oxford, pp 213–222
Matiation S (2003) Arbitration with two twists: Loewen v. United States and free trade commission intervention in NAFTA chapter 11 disputes. Univ Pa J Int Econ Law 24(2):451–507
Maupin J (2013) Transparency in international investment law: the good, the bad, and the murky. In: Bianchi A, Peters A (eds) Transparency in international law. Oxford University Press, Oxford, pp 142–171
Mostafa B (2008) The sole effects doctrine, police powers and indirect expropriation under international law. Aust Int Law J 15(1):267–296
Muchlinski P (2011) The rise and fall of the MAI: lessons for the regulation of international business. In: Fletcher I, Mistelis L, Cremona M (eds) Foundations and perspectives in international trade law, pp 114–134
Neumayer E (2001) Do countries fail to raise environmental standards? An evaluation of policy options addressing “regulatory chill”. Int J Sustain Dev 4(3):231–241
Nottage L (2011) The rise and possible fall of investor-state arbitration in Asia: a Skeptic’s view of Australia’s Gillard government trade policy statement. Transnational Dispute Manage 8(5):1–25
Parish M (2012) International courts and the European legal order. Eur J Int Law 23(1):141–153
Parra A (2004) The new amendments to the ICSID regulations and rules and additional facility rules. Law Pract Int Courts Tribunals 3:181–188
Platt R (2013) The appeal of appeal mechanisms in international arbitration: fairness over finality? J Int Arbitr 30(5):531–560
Pohl J, Mashigo K, Nohen A (2012) Dispute settlement provisions in international investment agreements: a large sample survey. OECD Working Papers on International Investment No. 2012/2
Reinisch A (2010a) The division of powers between the EU and its member states “after Lisbon”. In: Bungenberg M, Griebel J, Hindelang S (eds) Internationaler Investitionsschutz und Europarecht. Nomos, Baden-Baden, pp 99–112
Reinisch A (2010b) Enforcement of investment awards. In: Yannaca-Small C (ed) Arbitration under international investment agreements: a guide to the key issues. Oxford University Press, Oxford, pp 671–697
Reinisch A (2014a) The EU on the investment path – quo Vadis Europe? The future of EU BITs and other investment agreements. Santa Clara J Int Law 12(1):111–156
Reinisch A (2014b) Putting the pieces together … an EU model BIT. In: Bungenberg M, Reinisch A (eds) The anatomy of the (invisible) EU model BIT. J World Invest Trade 15:679–704
Reinisch A (2015) Most favoured nation treatment. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law. Nomos, Baden-Baden, pp 807–845
Reinisch A (2016) Will the EU’s proposal concerning an investment court system for CETA and TTIP lead to enforceable awards? – the limits of modifying the ICSID convention and the nature of investment arbitration. J Int Econ Law 19(4):761–786
Reinisch A, Knahr C (2012) Conflict of interest in international investment arbitration. In: Peters A, Handschin L, Hoegger D (eds) Conflict of interest in governance – an interdisciplinary outlook on the global, public, corporate and financial sphere. Cambridge University Press, Cambridge, pp 103–124
Roberts A (2010) Power and persuasion in investment treaty interpretation: the dual role of states. Am J Int Law 104(2):179–225
Salacuse J (2010) The law of investment treaties. Oxford University Press, Oxford
Sasson M (2010) Substantive law in investment treaty arbitration: the unsettled relationship between international and municipal law. Kluwer Law, Alphen aan den Rijn
Sauvant K, Chiswick-Patterson M (2008) Appeals mechanism in international investment disputes. Oxford University Press, Oxford
Schill S (2007) Do investment treaties chill unilateral state regulation to mitigate climate change? J Int Arbitr 24(5):469–477
Schill S (2013) Luxembourg limits: conditions for investor-state dispute settlement under future EU investment agreements. In: Bungenberg M, Reinisch A, Tietje C (eds) EU and investment agreements – open questions and remaining challenges. Nomos, Baden-Baden, pp 37–56
Schreuer C (2004) Travelling the BIT route: of waiting periods, umbrella clauses and forks in the road. J World Invest and Trade 5(2):231–256
Schreuer C (2005) Calvo’s grandchildren: the return of local remedies in investment arbitration. Law Pract Int Courts Tribunals 4:1–17
Shan W, Zhang S (2011) The treaty of Lisbon: half way toward a common investment policy. Eur J Int Law 21(4):1049–1073
Sheppard A (2009) Arbitrator independence in ICSID arbitration. In: Binder C, Kriebaum U, Reinisch A, Wittich S (eds) International investment law for the 21st century. Essays in Honour of Christoph Schreuer. Oxford University Press, Oxford, pp 131–156
Shihata I (1986) Towards a greater depoliticization of investment disputes: the roles of ICSID and MIGA. ICSID Rev Foreign Invest Law J 1:1–32
Tams C (2006) An appealing option? The Debate about an ICSID Appellate Mechanism. Beiträge zum Transnationalen Wirtschaftsrecht Heft 57
Tams C (2007) Is there a need for an ICSID appellate structure? In: Hofmann R, Tams C (eds) The international convention for the settlement of investment disputes: taking stock after 40 years. Nomos, Baden-Baden, pp 223–250
Tienhaara K (2011) Regulatory chill and the threat of arbitration: a view from political science. In: Brown C, Miles K (eds) Evolution in investment treaty law and arbitration. Cambridge University Press, Cambridge, pp 606–627
Tietje C (2009) Die Außenwirtschaftsverfassung der EU nach dem Vertrag von Lissabon. Beiträge zum Transnationalen Beiträge zum transnationalen Wirtschaftsrecht Heft 83
Titi A (2014) The right to regulate in international investment law. Nomos, Baden-Baden
Trakman LE (2012) Investor state arbitration or local courts: will Australia set a new trend? J World Trade 46(1):83–120
Veeder V (2006) The transparency of international arbitration: process and substance. In: Mistelis L, Lew J (eds) Pervasive problems in international arbitration. Kluwer Law International, New York, pp 89–102
Wallace D (2005) Fair and equitable treatment and denial of justice: from Chattin v. Mexico to Loewen v. USA. In: Weiler T (ed) International investment law and arbitration: leading cases from the ICSID. Cameron May, London, pp 669–700
Yannaca-Small C (2005) Indirect expropriation and the “Right to Regulate” in international investment law. In: OECD (ed) International investment law. A changing landscape. OECD, pp 43–72
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Reinisch, A. (2017). The EU and Investor-State Dispute Settlement: WTO Litigators Going “Investor-State Arbitration” and Back to a Permanent “Investment Court”. In: Bungenberg, M., Krajewski, M., Tams, C., Terhechte, J., Ziegler, A. (eds) European Yearbook of International Economic Law 2017. European Yearbook of International Economic Law, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-58832-2_9
Download citation
DOI: https://doi.org/10.1007/978-3-319-58832-2_9
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-58831-5
Online ISBN: 978-3-319-58832-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)