2019 Developments in Investment Treaty Arbitration: Jurisdiction, Admissibility, Procedure, and Conduct

Subject(s):

Amicus curiae

This chapter explores developments in investor-state dispute settlement (ISDS) in the period of January–December 2019 in relation to, on the one hand, jurisdiction and admissibility and, on the other, procedure and conduct. It determines the existence of a qualifying investment and looks at the fate of jurisdictional objections relating to the recent Achmea judgment of the Court of Justice of the European Union (CJEU). The chapter then addresses some important developments that have marked the most recent decisions of arbitral tribunals. Tribunals continue to decide a broad range of jurisdictional and procedural issues. Among them, the impact of the Achmea judgment on the jurisdiction of tribunals called to decide intra-EU, and in particular intra-EU Energy Charter Treaty (ECT), cases has been the object of a number of jurisdictional decisions, all of which rejected the impact of the judgment. Another noteworthy development is an apparent tendency to consistently deny application of the most-favoured nation (MFN) standard to the treaty's dispute settlement clause and to consider that compliance with waiting clauses is mandatory. Other noteworthy decisions concern the meaning of covered ‘investments’ pursuant to new generation investment treaties, increasingly numerous arbitrator challenges, decisions on provisional measures, non-disputing party interventions, third-party funding, and security for costs.