CHANGING INSTITUTIONAL ARRANGEMENTS OF INTERNATIONAL INVESTMENT DISPUTE RESOLUTION IN A GLOBAL ORDER: THREE DIFFERENT APPROACHES - Michel Roberto Oliveira de Souza (original) (raw)
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Nomos, 2019
Brazil has always rejected investor-State arbitration as a means of dispute settlement and its recent Agreements on Cooperation and Facilitation of Investments confirms this choice. Nearly seven decades of investment arbitration practice has not convinced Brazil nor has it inflected its position on the matter. This means that should Brazilian investors face a legal problem in the host States with which Brazil has signed an investment agreement, they will, to some extent, be powerless as far as international juridical recourse is concerned in that the Brazilian investors will not be able to sue these States directly before an international arbitral tribunal. This is a disadvantage if compared to the direct access to international arbitration given by the investment agreements of other States to private investors. This article will examine the question of what would effectively change in the Brazil's practice should the investor-State arbitration be incorporated in the Brazilian investment agreements as a dispute settlement mechanism. This would enable the Brazilian government and negotiators to have a comparative factor and measure the pros and cons of inserting an investor-State arbitration clause in the investment agreements. The article concludes that if the arbitration clause is technically and cautiously drafted, there is no need to fear investor-State arbitration. Resumo O Brasil sempre rejeitou a arbitragem investidor-estadual como meio de resolução de contro-vérsias e os seus recentes Acordos de Cooperação e Facilitação de Investimentos confirmam essa escolha. Quase sete décadas de arbitragem de investimentos não convenceram o Brasil, nem influíram a sua posição sobre o assunto. Em consequência, caso os investidores brasilei-ros enfrentem um problema jurídico nos países com os quais o Brasil assinou um acordo de investimento, eles ficarão impotentes no que diz respeito ao recurso jurídico internacional, pois os investidores brasileiros não serão capazes de processar os seus países anfitriões dire-tamente perante um tribunal arbitral internacional. Isso é uma desvantagem se comparado com o acesso direto à arbitragem internacional dado pelos acordos de investimento de outros países aos seus investidores privados. Este artigo examinará o que efetivamente mudaria na prática do Brasil, caso a arbitragem entre investidor e Estado fosse incorporada nos acordos de investimento brasileiros como mecanismo de solução de controvérsias. Sendo assim, o artigo oferecerá ao governo brasileiro e os negociadores um fator comparativo para poder mensurar os prós e contras de inserir uma cláusula de arbitragem entre investidor e Estado nos acordos de investimentos. O artigo conclui que, se a cláusula de arbitragem for elaborada téc-nica e cautelosamente, não há necessidade de temer o instituto de arbitragem entre investidor e Estado. Palavras-Chave Arbitragem Estado-investidor. Brasil. Contratos de investimento.
THE DEVELOPMENT OF INTERNATIONAL INVESTMENT DISPUTE SETTLEMENT SYSTEMS
Akademik Hassasiyetler, 2019
Foreign direct investment is currently one the fastest growing parts of international law. It has increased due to the proliferation of bilateral investment treaties (BIT). The contribution of the BITs has ensured the protection of foreign investors and investment. In other words, in cases where there is a dispute, the investor will settle the dispute before the impartial and independent arbitration tribunal instead of the courts of the host state. Thus, BITs limit the host states' sovereignty by providing arbitration method. Although the introduction of arbitration method is considered to be a big step after the Second World War, it cannot be said that it solves the fundamental problem over the time. Before the war, when an investment dispute arose, the investor was used to go to the court of the host state and see the sovereignty power. After the war, investor has been encountered the same effect in the execution of the arbitral award in the host state. Therefore, the focus of the article will be on the history of international investment law based on dispute settlement systems of BITs compared with historical investment dispute settlement systems. In addition, it is argued that the application to arbitration does not change the result of state sovereignty. It may signal future problems in this field since it causes revisiting to the court system. The most obvious example of this is the efforts to establish a multilateral investment court.
International standards of investment in international arbitration procedure and investment treaties
Revista Jurídicas, 2018
Debido a la importancia significativa de la inversión extranjera en el crecimiento económico de los países, especialmente los países en desarrollo, el propósito de esta investigación es revisar las normas internacionales de inversión en el procedimiento de arbitraje internacional y los tratados de inversión que han sido muy eficaces para eliminar las barreras de inversión así como para proteger y atraer a más inversionistas extranjeros a los Estados anfitriones. El método descriptivo-analítico fue aplicado en esta investigación utilizando recursos bibliográficos. El presente estudio, al describir y analizar los conceptos, ejemplos y métodos de aplicación de las normas internacionales de inversión en los tratados bilaterales y multilaterales de inversión, así como el procedimiento de arbitraje internacional, ha llegado a la conclusión de que estas normas son muy flexibles y dinámicas, y evolucionan en el tiempo.
Investment Disputes oltre lo stato: On Global Administrative Law, and Fair and Equitable Treatment
(2018) 59/8 Boston College Law Review 2685
Global Administrative Law is an academic project that not only attempts to describe the emergence of a regulatory space beyond the state, but also to prescribe solutions to the problems it diagnoses as a result of this circumstance, through certain normative principles like participation, transparency, reasoned decision-making, judicial review; accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by GAL are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of FET include due process, arbitrariness, non-discrimination, vigilance, legitimate expectations, stability and predictability, transparency, good faith, and proportionality. Incidentally, some of these principles/elements have found conventional support in state practice. Is this dogmatic similarity a mere coincidence or proof of the influence exerted by GAL’s tenets in the way the FET clause has been construed? This paper answers this question. For that purpose, it briefly explains GAL, and its approach to investment treaty arbitration, as well as the FET standard of international investment law.
Nnamdi Azikiwe University Journal of International Law and Jurisprudence, 2017
This paper analyses the mechanism for settlement of investment dispute in International Arbitration. The paper adopts doctrinal and analytical approach to legal research. The study examines the provisions of the International Centre for Settlement of Investment Dispute (ICSID) being the most recognised platform for settlement of investment dispute. However, references were made to similar institutions for comparison. The study reveals that Investment Treaties-either multi or bilateral treaty (BITs) are entered into to provide avenue for settlement of investment dispute that may arise between states or their nationals to the treaty. The paper argues that certain provisions of ICSID and other institutional mechanisms for settlement of investment dispute contain compulsory arbitration thereby negating the concepts of consent and party autonomy which are salient elements of international arbitration. The paper concludes with recommendations that the offending provisions of ICSID should be reformed in tandem with jurisprudence of arbitration proceedings.
European Yearbook of International Economic Law, 2020
This Chapter first summarizes the criticism voiced against investment treaty arbitration with specific regard to its relationship with domestic courts (infra at Sect. 2.1). It does not seek to discuss all of the multiple concerns raised against investment arbitration, which have already been addressed in the authors' First CIDS Report 1 and are further examined in the UNCITRAL Secretariat's papers, 2 among other materials. 3 Discussing the criticism of investment arbitration vis-à-vis domestic courts requires providing an overview of the main reasons why States created the investment treaty system in the first place (infra at Sect. 2.2) and examining today's justifications for keeping or putting in place an international system of investment dispute resolution, whether in the form of arbitration or standing adjudicatory bodies (infra at Sect. 2.3). The following subsections will in particular ask: What goals were IIAs intended to achieve? In light of those goals, what is the function of international courts and tribunals in the investment law domain, either in their current arbitral configuration or in future constellations such as a MIC? As States are considering questions concerning the institutional design and redesign of the system, it appears important to seek to provide answers to these questions in order to test the continuing validity of the assumptions which underpin the conclusion of investment treaties with international dispute resolution mechanisms.
Investment Treaty Arbitration in Latin America
Latin American Research Review, 2019
This study analyzes variations in the incidence of state involvement in investment treaty arbitration in Latin America and the Caribbean over the 1987–2014 period. Its main contributions are fourfold. First, by focusing on the balance of incentives and opportunities facing political leaders and foreign investors, the study establishes a new basis for understanding the reasons actors opt for the risks and uncertainties of international arbitration instead of resolving international investment disputes via alternative means. Second, by restricting the focus of research to the Latin American region, the study is able to move beyond the analysis of relatively time-invariant structural and institutional conditions and crude indicators to address the role played by the preferences of political actors. Third, by disaggregating disputes by sector of investment, the analysis documents the variable role of ideology and electoral incentives in investment treaty arbitration. Finally, by underli...
Law and World, 2020
An economic development of the states highly depends upon the fl ow of private international investment. Whilst the creation of suitable investment climate which would guarantee the fair and equitable treatment of foreign investment within the depoliticised and impartial dispute resolution system had been objective of the World Bank, the International Centre for Settlement of Investment Disputes was established under its auspices. The primary objective of the ICSID Convention has been viewed on facilitating and safeguarding of private international investment through the creation of a favourable investment climate. Arbitration under the ICSID, serves not only in favour of investors but also of host states. Whilst the favourable means are offered to the both parties for dispute resolution according to the major provisions of the Convention, the "[e]xecution of the awards", represent the slight alteration in the disadvantageous position of the foreign investor. The aforementioned alteration as the time consuming process, fulfi lled within the state bureaucracy is more sensibly approached by the foreign investors in developing countries, under which the political risk and demand for foreign investment protection is always one of the highest extent. However, by virtue of signing the Convention, the states not only accept the proposed dispute resolution mechanism, but also declare and desire to welcome the foreign investment. As states aforementioned attempts could be related to the creation of the Global Forum for delivering better Investment Climate, the demands of the World Bank in the sphere is one of the most signifi cant importance.
International Investment Law and ISDS: Mapping Contemporary Latin America
In recent years, the negotiation and conclusion of international investment agreements (IIAs) in Latin America has gone hand-in-hand with a rethinking of investment standards and the elaboration of new IIA models. This is evident, among others, in Brazil's cooperation and facilitation investment agreements (CFIAs), the continuing negotiations on the creation of a regional dispute settlement centre under the aegis of the Union of South American Nations (UNASUR), some recently-released investment policy documents and amendments to national arbitration laws for disputes involving the State. The article highlights such developments emphasising the broad spectrum of local approaches that vary from convergence to divergence in order to interpret Latin American countries' position in the existing investor-State dispute settlement (ISDS) system and reveal the role that the sub-continent can play in the future design of ISDS. Keywords Latin America – international investment law – Brazil's cooperation and facilitation investment agreements (CFIAs) – UNASUR Centre for the Settlement of Investment Disputes – national arbitration laws – investor-State dispute settlement – dispute prevention and alternative dispute resolution (ADR)
International Review of Management and Business Research, 2014
IntroductionArbitration tribunals have occasionally rendered contradictory awards1 in investment arbitrations. These conflicts have raised urgent concern about the necessity of establishing appellate mechanism to harmonize the situation so as to achieve a consistent and coherence result facilitating predictability and consistency in international investment disputes. Conflicting awards based upon the same facts or identical worded provision in the treaty will create a threat to the international legitimate order and the continued existence of investment treaties. It is likely that investors will be advised to structure their investments in a manner that multi-dispute resolution mechanisms can be established through multiple investment treaties.The purpose of the paper is to review the recently proposed appellate mechanisms in international investment treaty arbitration and critically analyze the various objections to appellate mechanisms in the international investment sphere. It is...