issue conflicts in investment treaty arbitration and international law

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Issue conflicts in investment treaty arbitration and international law w investments ch agen

Issue conflicts in investment treaty arbitration and international law

The possibility to invoke necessity as a circumstance precluding wrongfulness in international law is recognized by Art. It provides that:. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: is the only way for the State to safeguard an essential interest against a grave and imminent peril; and. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: the international obligation in question excludes the possibility of invoking necessity; or.

First of all, it is to be noted that the legal status of such a defence in international law has always been an issue. While today the majority of scholars and arbitral tribunals tend to consider Art. However, even if one would be willing to accept that necessity as enshrined by Art. The first of them regards the possibility that a very grave economic crisis can be equated to a state of necessity in accordance with international law.

In addition, assuming that an economic crisis can be considered as a source of necessity in accordance with international law, it is to be noted that the requirements set forth by the provision of Art. Hence it is not easy to understand how much a tribunal can, e. In this regard, the main problem is to understand whether tribunals shall be deferent 39 with regard to State choices or whether they should second-guess all that has been done by them prior to and after the economic crisis.

All the above issues, which are still mostly unresolved, 44 were realized in the investment cases which concerned Argentina and were decided in the last decade. This law disconnected the value of the Argentinean Peso from the value of the US Dollar and conducted to the deprivation of the economic value of the interests of foreign investors, who had started economical activities in Argentina on the basis of the connection that Argentinean law operated between those two currencies.

For the sake of the present article we will take into consideration only some of the several proceedings started against Argentina, namely CMS v. Argentina , 47 Continental Casualty Company v. Argentina , 48 Enron v. Argentina 49 and Sempra v. On the basis of this provision and of article 25 of ILC Articles on State responsibility in all the aforementioned disputes, Argentina claimed that the measures it adopted following the economic crisis were dictated by a state of necessity which precluded wrongfulness and jointly or alternatively were to be considered as non-precluded measures in accordance with the BIT wording.

These circumstances exempted the host State from the payment of the indemnity to foreign investors. In light of the above extremely complicated framework, it is not by chance that the Tribunals and the ad hoc committees reached very different conclusions on the issue of necessity.

Furthermore, and—for what is presently of interest—most importantly, some of them completely failed to mention the conclusions reached by the others, notwithstanding the circumstance that the factual framework at the basis of the disputes was almost identical e. They reached—however—different conclusions with regard to the issue whether the requirements set forth by the ILC Draft Articles had been satisfied.

The CMS , Enron and Sempra Tribunals argued that Argentina contributed to the generation of the economic crisis and, furthermore, the State had other ways to face the financial difficulties such ways being able of generating less prejudice to foreign investors. They considered, therefore, that the Respondent State was not in the position to have recourse to necessity. Hence, Argentina was exempted to pay indemnity to the investor for the period it was facing the state of necessity.

The CMS ad hoc committee, even if it refused to annul the award, 54 however, stated that the Tribunal misunderstood the scope and function of article XI of the BIT when it equated that provision to customary law as expressed by article 25 of the ILC Articles. Article XI of the BIT was to be considered as a positive threshold requirement, the recourse to which is useful for understanding whether the BIT is applicable, while Art.

On the contrary, the Enron ad hoc committee said that the Tribunal was entitled to equate article XI of the BIT and customary international law, but argued that it failed in correctly interpreting the requirements set forth by Art. For this reason, the committee annulled the award.

The Tribunal, then—without giving any further particular explanation and probably due to the fact that its President had been a member of the WTO Appellate Body—at para. Since the text of Art. XI derives from the parallel model clause of the U. FCN treaties and these treaties in turn reflect the formulation of Art.

XX of GATT , the Tribunal finds it more appropriate to refer to the GATT and WTO case law, which has extensively dealt with the concept and requirements of necessity […] rather than to refer to the requirement of necessity under customary international law. As is foreseeable, very different and irreconcilable opinions on the outcome of the above cases can also be found in scholarship related to the above decisions.

For what is here of interest, the awards regarding the necessity defence in the Argentinean cases represent one of the clearest examples of how, by adopting inconsistent approaches, Tribunals can generate criticisms and mistrust towards investment arbitration. It is indeed undeniable that if—without a meaningful explanation—the same issue is decided oppositely by two adjudicative bodies, the adjudicators will lose their credibility and also the legitimacy of the entire mechanism of dispute settlement can be put into question.

In the opinion of the present author, 61 from the point of view of methodology, prior to discussing the necessity of structural reforms in investment arbitration, one should ascertain whether, in investment arbitration, a certain degree of orderliness is required and, therefore, if coherence and consistency shall be ensured and what degree of coherence is required by investment tribunals. This analysis is particularly significant with regard to the possible necessity of an appeal mechanism of general application, which seems to be adequate in a system such as the WTO, which — for its marked systemic features — is often equalized to an autonomous area of international law.

It will be therefore useless to search for ways of ensuring consistency between arbitral awards. If, contrariwise, we are able to ascertain that systemic features are present in investment arbitration, we will be able to determine which degree of coherence is required to decision makers and whether such a consistency cannot be granted by the current system of dispute resolution and, hence, a structural reform of it is required.

As a preliminary remark, it shall be noted that there is no agreement even on the definition of a legal system. In light of such a definition, we will now try to assess the various existing conceptualisations of international investment law in order to determine whether a certain degree of orderliness exists in such an area of law and whether this, in turn, requires coherence among tribunals. This patchwork provides [the] notion of fragmentation in the international law on foreign investments, and if taken to its extreme consequences, would even prevent scholars from construing international investment law in a unitary manner [emphasis added].

Such a description seems to perfectly suit the reality if one thinks of the more than BITs in force and the ad hoc nature of all investment tribunals, constituted for solving a single dispute. There are some obiter dicta which seem to point towards this opinion.

In SGS v. Furthermore, the Tribunal noted that there is no doctrine of precedent in international law, i. There is no hierarchy of international tribunals, and even if there were, there is no good reason for allowing the first tribunal in time to resolve issues for all later tribunals. Likewise, in Joy Mining Machinery Limited v. Arab Republic of Egypt 71 the Tribunal stated that it was not called upon to sit in judgment on the views of other tribunals.

It is only called to decide this dispute in light of its specific facts and the law. In a framework like this, obviously, there would be need neither for coherence both internal and external nor for a reform of the investor State dispute settlement mechanism. Every tribunal should carry out its task even ignoring what other tribunals do! This idea would be welcomed by scholars who think that the task of arbitrators is to do justice in the single case at hand and that tribunals should not care about ensuring the predictability of their decisions.

This would run against the idea that in investment arbitration there is no systemic reason to believe that any one tribunal has greater expertise than others and therefore it would be unjustified to give deference to what has been done by other arbitrators.

This approach is to be rejected. Firstly, as better discussed below, it reflects neither what is usually done by Tribunals nor the opinion of scholars recognizing a certain degree of coherence in international investment law and awards. A second and opposite approach to international investment law and arbitration talks about investment treaty arbitration. This idea, according to its proposers, is based on two main assumptions. First of all, the existence of an autonomous regime for investment would be confirmed by the alleged large use of precedents made by international investment tribunals.

In this regard, it has been highlighted that the idea of a self-referential and normatively closed system immediately leads us to think of international investment law and arbitration as a self-contained regime, completely detached from the surrounding framework of public international law. According to this approach, as is obvious, investment arbitral tribunals should apply a very strong idea of internal coherence and ensure, save for rare exceptions, consistency of outcomes among awards within the regime.

On the other hand, external coherence seems not to be a real issue for the proposers of this approach, provided that every legal question is resolved within the self-referential system. By applying this theory to the abovementioned Argentinean cases, the hypothetical result would most likely have been that the decisions of the tribunals should have been based only on the interpretation of art XI of the USA-Argentina BIT.

As a consequence, first of all, reference to other regimes — such as WTO law — would have not been welcome; thus the Continental Casualty Company award would not have been an acceptable and legitimate one. Secondly, it is highly probable that also reference to customary international law would not have been seen with sympathy by the supporters of international investment law as a self-contained regime.

However, the concept of self-contained regimes has been strongly criticized by scholars, both in general terms and in particular, if applied to international investment law. Generally speaking, it has been said that fragmentation is an illusion, 91 and a misnomer, 92 because all the alleged regimes are founded on international law norms and general international law is always called to fill-in lacunae of the various systems.

In the opinion of this author there are certain specific issues that lead us to not consider international investment law as an autonomous and self-referential system. It is necessary, first of all, to highlight that — as the Argentinean cases on state of necessity demonstrate — the consistency of outcomes proposed by the regime proposers has still not been reached in international investment law. Secondly, as will be seen below, 95 investment tribunals very often refer to general international law and other fields of international law.

In light of the above, it is possible to conclude that — even if it is undeniable that international investment law has developed a certain degree of specificity and coherence — it is not possible today to consider it as an autonomous system of law i. Having demonstrated that international investment law is neither a patchwork of autonomous tribunals nor a self-contained regime, we will now try to conceptualise it as a network of tribunals which act as part of the more general framework of international law and which, therefore, cannot disregard what is done both by other investment tribunals internal coherence and by other international courts external coherence.

This opinion is the one that seems most supported by case law and scholarship. In this regard, however, the starting point of the discussion is that no binding precedent exists in international investment law. This is largely confirmed by the case law. The case law clearly shows that this approach—which is also adopted in several other areas of international law —is the one which best represents a balance among the various decisions of arbitral tribunals on the issue of precedent.

Two subjects of international investment law, as demonstrated by recent case law, are very significant with regard to the adoption of this approach. The reference applies to the concept of abuse of process and annulment decisions. In both of these areas, Tribunals have almost always referred to previous decisions in order to justify the approaches they were assuming.

In the very recent Transglobal v. Panama Award, the Tribunal refused to assume jurisdiction on a claim started pursuant to an abuse of the corporate structure of the Claimant aimed at getting US nationality with the sole aim of gaining advantage of the USA-Panama BIT. In doing so, in order to render justifiable its decision, arbitrators have referred to the consistent line of decisions in which the same approach was adopted. Turkmenistan and Postova Banka v.

Greece, in order to decline the request for annulment the ad hoc committees have referred to consistent previous case-law which determined the scope of application of annulment proceedings. As it appears from the above-mentioned case law, the taking into account approach is a judge-made way of ensuring internal coherence in international investment law.

It requires that tribunals do not ignore each other in order to give solid and understandable legal basis to their conclusions. Indonesia Award, the Tribunal said that it. At the same time, in its judgment it must pay due consideration to earlier decisions of international tribunals. Specifically, it believes that, subject to compelling grounds to the contrary, it has a duty to adopt principles established in a series of consistent cases. It further believes that, subject always to the text of the BITs and the circumstances of each particular case, it has a duty to contribute to the harmonious development of international investment law, with a view to meeting the legitimate expectations of the community of States and investors towards legal certainty and the rule of law.

What seems plausible in light of the taking into account approach is to talk of a persuasive value of previous awards. This means that well-reasoned awards, the approach of which seems rationally justifiable, as well as legally correct, can be considered by arbitrators more valuable than others in order to reach their decisions. For the above reasons, it seems possible to state that—even if it is still impossible to talk about a system—a network of tribunals, which act as if they are part of a single system of dispute resolution, exists in international investment arbitration.

This means that a certain degree of internal coherence, at least from the point of view of the reasoning of arbitral awards, is and shall be usually granted in investment decisions. A second element of internal coherence is given by the quite uniform application of standards of treatment by tribunals in international investment law.

Some BIT provisions and standards of protection, such as the fair and equitable treatment, the most favoured nation, the full protection and security, and the arbitration clause, are present in almost all BITs and they cannot be seen in isolation from each other. Moreover, the wording of such clauses is usually very simple and broad, so that the real content of the various standards has been determined by the case law and by the interpretation of arbitral tribunals.

Such inter-relation is realized through two phenomena. On the one hand investment treaties are based on a structure and on clauses, which are repeated in all treaties with very similar, if not identical, modalities. On the other hand, by means of the most favoured nation clause, several structural and not occasional recalls operate between the various treaties, so that investors may rely on uniform standards of protection. It seems therefore reasonable to affirm that standards of treatment of foreign investment exist somehow disregarding the text of the individual treaty and live through the work and the pronouncements of arbitrators, who—as demonstrated above—have a duty to take into account previous decisions.

With a look to the state of necessity issue, therefore, it seems possible to appreciate what has been done, e. If all the above is true, it is possible to state that internal coherence shall be ensured in international investment law and that decisions which disregard what is done by other tribunals are not to be welcomed in this framework, since such disregard could, as demonstrated above, determine a legitimacy crisis of international investment law as a credible method of dispute settlement.

On the other hand, however, as we will see below, the existence of a network of tribunals—and not of something closer to a real system, such as the WTO—generates doubts as to the need of a permanent appellate body which is far from the idea of arbitration as a form of dispute resolution where the parties choose their tribunal in order to have their dispute solved in a one-step process. As a confirmation of the general acceptance of the proposed approach, it is worth mentioning the recently approved wording of Article 8.

With regard to the reference to other areas of international law, it is possible to mention the decision in Charanne v. Spain , in which the Tribunal, in order to establish its jurisdiction, has analysed both art of the TFEU and the concept of EU public policy. In this regard, it is possible to mention the SPP v. Several other examples come from the human rights area: in the abovementioned Phoenix decision, e. In addition to the above, there are very interesting recent developments in the case-law that evidence the correctness of the proposed approach.

First of all, it is necessary to refer to the Award issued in the case Philip Morris v. Uruguay , where public health was discussed and the Tribunal expressly acknowledged the public interest involved in this case.

The claim brought by the Philip Morris group challenged two legislative measures enacted by the Respondent. The decision is relevant because for the first time a tribunal fixed a clear hierarchy between the protection of public concerns and private interest of the investor. The award will most likely set an important precedent for other similar cases. The Tribunal successfully allowed the Respondent to make a human rights counter-claim against the Spanish corporation Urbaser.

Notably, the Tribunal referred to the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights while reasoning its stance on making private companies liable for human rights violations in investment disputes. The Urbaser case has many far-reaching implications. Besides the jurisdictional implication as far as counter-claims are concerned, together with the Philip Morris decision, it squarely goes against the decisions in which tribunals expressly dismissed human rights argument stating that its competence is limited only to the commercial merits in the dispute.

In addition to the above, it is worth noting that it has several times been stated that the application of other areas of international law in investment arbitration should be carried out by way of systemic integration according to article 31 3 c of the Vienna Convention on the Law of Treaties.

It is not possible here to make an analysis of this provision, which is analysed in-depth in the ILC Report on fragmentation and in scholarship. Moving to the reference to the work of other international courts and tribunals, it shall, first of all, be remarked that investment tribunals usually make reference to the ICJ case law and find guidance in it.

Indeed, as it has been demonstrated by Pellet, there are certain decisions of the ICJ or of the PCIJ that are always the starting point of discussions related to certain arguments. The subject of provisional measures is a useful example in this regard. In establishing the binding nature of these orders, due to the very vague formulation of Art. However, not only decisions issued by the ICJ are relied upon by investment tribunals.

Uruguay , the Tribunal relied on the doctrine of margin of appreciation as developed by the European Court of Human Rights. The above demonstrates that international investment law is not an isolated regime which can disregard the rest of international law. International investment law is founded on public international law and is and shall be usually interpreted and applied in light of the bigger framework of international law.

This also means that in the case of lacunae within international investment law, as well as in cases of regime failures, it is not only possible, but indeed necessary, to refer to the general framework of international law. Their activity lies in the mainstream of international law and touches upon many of its central questions. Hence, with a look to state of necessity, the approach of the Continental Casualty Company Tribunal, which based its analysis on WTO law, seems to be fully justifiable.

As we will see below, such a result would not be better achieved through a structural reform of the investor-State dispute settlement mechanism. Having ascertained that a certain degree of internal and external coherence exist in international investment law and arbitration, it is now necessary to assess the various proposals of systemic reform mentioned in Section I. For the sake of simplicity, we will only refer to the procedure established in the CETA, which—however—is substantially identical to the one contained in the latter FTA.

As we have said, the procedure is based on a dual-tier of quasi-permanent courts, a first instance tribunal and an appellate tribunal. The member of both these organs are not appointed by the parties: the Tribunal is composed of 15 Members, five of which are chosen among nationals of the Member States, five among Canadians and five among nationals of third countries; all of them are appointed by the CETA Joint Committee.

The division shall be chaired by the Member of the Tribunal who is a national of a third country. The appellate body shall be appointed by the CETA Joint Committee, which will also decide the number of its members. It may know a errors in the application or interpretation of the applicable law; b manifest errors in the appreciation of facts including domestic law, which is to be considered as a fact according to the CETA text ; and c the grounds set forth in Art.

Even if it is debatable whether such a Tribunal is to be considered as a form of arbitration even for the purposes of enforcement according to the New York Convention , it is certain that it is very far from the system of investment arbitration that we know and that brought a substantial development of foreign investments throughout the world. Indeed, arbitration has developed so much because it is mainly driven by party autonomy.

The parties appoint the arbitrators. The parties decide the institution and the rules governing the proceedings. This will determine, on the one hand, the impossibility for both of the parties to have an influence in the appointment of the judges on the basis of their expertise and qualities and, on the other hand, risks to determine slow proceedings in which, as it happens in the ICJ, there are several dissenting opinions and clashes of views.

All the above arguably runs against efficiency, which is one of the main objectives of the parties when they choose arbitration as the method of dispute resolution. It is not clear which legal tools would be used by the EU Commission to establish such a Court and how the Court would appear. Firstly, the mandate, nature, structure and organization of the court should be established. Then an opt-in convention should be drafted, through which States could decide to adhere to the court and replace the investment arbitration provision contained in existing BITs.

It is undebatable that a single Multilateral Investment Court, with its own system of review of decisions, would increase the level of consistency in international investment law. This, however, would happen only if an high number of States decides to take part in the project; otherwise consistency will be achieved only with regard to the application of BITs in which both the parties have adhered to the Multilateral Investment Court.

There are, moreover, some policy arguments which apparently militate against the creation of such a court. It is, therefore, unnecessary to repeat here what has been already stated above. What is relevant, however, is that apparently some countries have already declared not to be interested in this project. The third proposal for reform consists in the creation of an appellate mechanism for investor-State arbitral awards rendered under BITs. From the legal point of view, this reform appears difficult to achieve.

Indeed, inter se amendments are only possible if i they do not affect the enjoyment of the other parties of their rights under the treaty which is going to be modified and ii provided that they do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

The problems of politicization appear less relevant in this case, due to the fact that—at least at first instance—the parties would continue to be able to make recourse to the traditional form of investment arbitration. What appears, however, highly relevant is the risk of inefficiency: the appeal to decisions by the dissatisfied party could become the normal path of investment disputes, rendering arbitration—which was designed as a one-stop mechanism of dispute resolution—more similar to domestic litigation which was exactly what the parties wanted to avoid when choosing arbitration.

Moreover, as for the Multilateral Investment Court, the Appellate Body could only achieve consistency in respect of the particular BITs which it has to interpret. It is not by chance, indeed, that Authors who have examined the matter have excluded that a possible investment Appellate Body could work like the one existing in the WTO framework.

The last proposal of reform, authoritatively made by Prof Schreuer, consists in the establishment of a mechanism of preliminary rulings. Arbitral tribunals should, accordingly, refer their questions pertaining to essential issues to which the coherence international investment law is related to a permanent body established for that purpose.

It could, moreover, be helpful in avoiding inconsistencies without affecting the duration of proceedings in a substantial manner. The above considerations are useful to let us consider the realization of Prof. Indeed, it is arguable that—even if an amendment of the ICSID Convention seems not feasible due to the necessity of consent of all its Contracting Parties—an inter se modification in accordance with Art. Indeed, preliminary rulings do not seem to run against any provision of the Washington Convention and do not generate problems to the enjoyment of the Convention by the contracting parties which would not take part to the preliminary rulings project.

However, it has to be highlighted that such a possibility is, as of today, completely under-theorized. One is under what circumstances a tribunal would request a preliminary ruling and whether it would be under an obligation to do so. Another question would be whether these rulings would bind the tribunal or would merely constitute recommendations. Not least, the composition of a body charged with giving preliminary rulings would require detailed discussion.

At present, therefore, this solution—which seems the easiest to be achieved among the ones that have been proposed—remains of merely theoretical interest. The above analysis has demonstrated that a reform to investment arbitration would involve several drawbacks and uncertainties and, in any case, would be very difficult to achieve. This is demonstrated also by the fact that, when signing the ICSID Convention several States did not actually fully understood what they were doing and — as a consequence — accepted a regime which equalizes arbitration awards to national decisions.

Furthermore, none of the proposed reforms provides for a mechanism aimed at ensuring also external coherence. In lack of clear rules setting forth the application of rules contained in other areas of international law, nothing precludes, indeed, that the new bodies would continue applying other areas of international law in an inconsistent and unpredictable manner. In addition to the above, one might further wonder what the benefits or incentives would be for States to embark on the daunting task of conducting structural reforms of investor-State dispute settlement.

States themselves may have different interests and agendas in investor-State dispute settlement and it is difficult to imagine that they are on the same page with regard to any structural reforms of the existing investor-State dispute settlement regime. Greater coherence in international investment law itself might be too weak a benefit for States to move forward with any necessary but difficult reforms.

In this regard, it has to be noted, first of all, that any reform involving an amendment to the ICSID Convention will need, according to art. In any case, such a political effort would be required for putting into place any of the reform scenarios outlined above, considering that the success of any ISDS reform will be necessarily proportional to the number of States which will adhere to it; and, on the other hand, the more States adhere, the more political and difficult the choice of the amendments to be put in place becomes.

In the case where a structural reform of investment arbitration is put into place e. This would mean that—after the aforementioned political efforts aimed at obtaining a consensus on the proposed reforms—the practical effects of such reforms could become real only after a long period of time.

All these circumstances could work as strong disincentives for States involved in thinking about renegotiations of investor-State dispute settlement mechanisms. The present Author, in conclusion, believes that, for the reasons set out above, it would be probably worth waiting some time prior to putting into place a structural reform of investment arbitration. On the one hand, a period of reflection would give the possibility to States and scholars to develop more appropriate reform proposals.

On the other hand, this would also allow us to see whether the self-adjustments which are taking place in investment arbitration as demonstrated by decisions such as Urbaser and Philip Morris could, alone, be able to overcome the legitimacy crisis which investment arbitration is currently facing. The above discussion has demonstrated the importance of ensuring both internal and external coherence in order to grant legitimacy to international investment arbitration as a dispute resolution mechanism.

It has also demonstrated that a structural reform is not necessarily the correct way to achieve these goals and to ensure the perception of justice of investment awards and the related credibility of the dispute resolution mechanism.

This section will try to understand whether arbitrators may assume the role of key actors in enabling such an objective to be reached. It is indeed undeniable that, in the absence of detailed treaty provisions setting forth clear substantive standards of treatment of foreign investments, arbitrators are the real balancing factor between the necessity to issue an award that is the appropriate one for the case at hand and the need to grant that such an award is integrated within the legal framework in which it will operate.

The central role of adjudicators in ensuring the credibility of a system of dispute resolution is not entirely a new idea. Recent case law in investment arbitration demonstrates that State interests are starting to be duly taken into account by arbitrators, which have paid due deference towards the public function of States. In this regard, someone could also cleverly say that — conscious of the backlash that investment arbitration is facing — arbitrators are changing an allegedly unacceptable status quo also for safeguarding their own reputation as decision makers.

Coherence is an undeniable feature of any credible method of dispute settlement. Its lack is the main factor in the backlash against investment arbitration. This statement is confirmed by an analysis of the investment cases involving Argentina in which the necessity defence has been raised and in which very different approaches have been applied by arbitrators, often without any explanation of the reasons that have generated such a divergence.

Lack of coherence is, indeed, one of the main reasons which are at the basis of the quest for a structural reform of investment arbitration, namely the institution of an Investment Court System relating to a specific treaty such as the one enshrined by the CETA , the creation of a Multilateral Court, the establishment of an investment Appellate Body and the institution of a mechanism of preliminary rulings. This article has, first of all, demonstrated the relevance of the issue of coherence in international investment law through a description of the inconsistent application of the necessity defence in international investment law.

It has, then, analysed the current legal framework concerning internal and external coherence, in order to understand whether the above-mentioned structural reforms are actually the only way of ensuring the legitimacy of the system. In this regard, it has been demonstrated that — on the one hand — certain self-adjustments are taking place in the case-law in order to ensure internal and external coherence in investment arbitration; on the other hand, it has been explained that the proposed reforms of the current investment disputes settlement mechanisms are difficult to be achieved and would probably generate an even higher level of uncertainty.

As a consequence, also in light of the still evolving legal framework and case law surrounding investment arbitration, it is perhaps better to wait for putting in place hasty reforms and, in the meanwhile, try to emphasize the role of arbitrators as guarantors of the credibility of the system. The Author wishes to thank Prof. Fulvio Maria Palombino for the great support in the research activity which conducted to this article, as well as the anonymous referees for the precious suggestions which substantially improved the quality of this paper.

Giardina has several times criticized the arbitration without privity concept, which would allegedly generate an asymmetry between investors and host States. These numbers are in line with the ones of last year. This attitude extremely favourable to investors has been described as a reaction to the extremely unprotective regime regarding foreign investments which took place during the period of decolonization.

Indeed, after that period, capital importing States accepted burdensome obligations towards foreign investors with the aim of attracting foreign capital. Sauvant et al. Sauvant ed. Stephan W. See also Josef Esser, Precomprensione e scelta del metodo nel processo di individuazione del diritto , , who explained in general terms that decision makers shall make decisions and apply the law trying to render such decisions acceptable for all the community who will read them.

The debate that takes place every time that human rights are at stake in investment arbitration demonstrates that the content of BIT standards is far from being settled. See Nathalie Bernasconi-Osterwalder, Giving arbitrators carte blanche—fair and equitable treatment in investment treaties, in: Karl Lim ed.

For other criticisms to investment arbitration see Van Harten, above n. First of all it has been stated that it is not an accountable method for solving public disputes, since it does not provide a mechanism of checks and balances of the judicial power. Thirdly, arbitrators have been accused of a lack of independence and of regularly favouring investors. Fourthly it has been said that investment arbitration lacks coherence and that it produces unpredictable awards by deciding, without a legal rationale, similar cases in very different ways.

In this regard, however, it is worth noting that according to Jorge E. For the reasons set out in the text, this author still thinks that it is necessary to address part of these criticisms. While several existing works that have successfully or not addressed in particular the issues of accountability, openness and independence, coherence still remains an issue. See Meyers, above n. See Joost L. Specialty Products. Catalogs, Flyers and Price Lists. Open Access.

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This article analyses the issue of coherence in international investment law and the related quests for a structural reform of investor-State dispute settlement.

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Stock invest us account Julian D. Other cases in which Tribunals have clarified that they are not bound by previous awards are, inter aliaSaipem v. Sauvant et al. The registries, arbitrators, and applicable rules vary from case to case. The parties appoint the arbitrators. Issue Section:.
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Law in issue treaty international investment conflicts and arbitration glasgow student accommodation investment property

Unresolved issues in investment treaty arbitration

He concentrates his practice in as well as in administrative, an Adjunct Professor at Return risk and liquidity components of investments. He teaches both international arbitration the representation of governments and commercial arbitration and investor-state arbitration. PDF He acts as counsel and arbitrator in ad hoc represented both sovereigns and investors international commercial arbitration, and resolution Centre for Settlement of Investment Disputes ICSID. Nolan is experienced in all. He works primarily on international arbitration matters. He focuses his practice in investment treaty arbitration and has and institutional arbitrations with a particular focus on Latin American of trade disputes before the investment treaties. He also advises governments with and served as the President resolution, with a focus on. Addy Paola Velazquez Martha L. He concentrates his practice in a wide variety of international of the Court in the. She has particular experience in respect to law reform, restructuring, constitutional and international law.

Originally from Investment Treaty Arbitration and International Law - Volume 2. Issue Conflicts in Investment Treaty Arbitration (revised version: Oct. ) Published in , the IBA Guidelines on Conflicts of Interest in International Arbitration (the "IBA Access to Legal & Regulatory data (well over documents). Practising Virtue: Inside International Arbitration same legal issue; where the arbitrator has expressed opinions on the issues at stake in academic Keywords​: investment treaty arbitration, arbitrators, issue conflicts, bias, conflict of interest.