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- Preliminary Material
- Main Text
- Part I Investment Treaties and the Settlement of Investment Disputes: The Framework
- 1 Bilateral Investment Treaties and Investment Provisions in Preferential Trade Agreements: Recent Developments in Investment Rule-making
- Preliminary Material
- I Introduction
- II BITs and Investment Provisions in PTAs: The Gradual Shift from Investment Protection to the Promotion of Liberalization of Investment Flows
- A The Investment Protection Rationale of BITs
- B Investment Protection and Liberalization in ‘New Generation’ BITs and Investment Chapters of RTAs
- C Impact of Investor-state Dispute Settlement Experience on Investment Rule-making: A New Generation of IIAs
- 1.28
- 1.29
- 1.30
- 1.31
- 1.32
- 1.33
- 1.34
- 1.35
- 1.36
- 1.37
- 1 Greater precision in the scope of the definition of investment
- 2 Clarification of the meaning of several key obligations
- 1.44
- (a) International minimum standard of treatment
- (b) Expropriation
- (c) National treatment
- (d) Clarification that investment protection should not be pursued at the expense of other public policy objectives
- (e) Promotion of greater transparency between the contracting parties and in the process of domestic rule-making
- 3 Innovations in ISDS procedures
- 1.80
- 1.81
- 1.82
- (a) Greater control of the contracting parties over arbitration procedures
- (b) Promotion of judicial economy
- (c) Mechanism to avoid ‘frivolous claims’
- (d) Consolidation of claims
- (e) Mechanism to avoid a dispute being submitted to more than one dispute settlement forum: improving the ‘fork in the road’
- 4 Promotion of a consistent and sound jurisprudence on international investment law
- 5 Promotion of legitimacy of investor-state arbitration within civil society
- III Conclusion
- 2 The Energy Charter Treaty
- Preliminary Material
- I Introduction
- II The Making of the Energy Charter Treaty
- III ‘Investments’ and ‘Investors’ Covered by the Energy Charter Treaty
- IV Denial of Benefits
- V Substantive Investment Protections
- VI Dispute Settlement
- VII Fork in the Road
- VIII Provisional Application
- IX Taxation Carve-out
- X Conclusion
- 3 International Investment Dispute Settlement Mechanisms
- Preliminary Material
- I Introduction
- II Institutionally Supported Arbitration
- III Selected Procedural Issues
- A Commencement of Proceedings and the Role of the Institution in the Initial Determination of Jurisdiction
- B Appointment and Disqualification of Arbitrators
- C Interim Measures
- D Seat/Place of Arbitration, Language of Proceedings, and Applicable Law
- E Tribunal’s Experts
- F Transparency and Third-party Participation
- G The Award and Post-award Remedies
- H Costs
- IV Ad Hoc Dispute Settlement: UNCITRAL Arbitration Rules
- V Conclusion
- 4 The Role of Precedent in Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II The Anti-arbitrariness Vaccine
- III Limitations
- IV The Legal Status of Precedents
- V The Core Concepts
- VI Life and Death of Precedent in a Decentralized System
- VII Reconsidering the Value of Precedents
- VIII Towards More Rigorous Reasoning by Precedent
- IX Concluding Thoughts: Is a Synthesis Possible?
- 1 Bilateral Investment Treaties and Investment Provisions in Preferential Trade Agreements: Recent Developments in Investment Rule-making
- Part II Guide to Key Preliminary and Procedural Issues
- 5 An Overview of Procedure in an Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II Overview of the Overview
- III Preparation of the Case
- IV The Written Submissions
- V The Hearing
- VI Conclusion
- 6 Aspects of Procedure for Institution of Proceedings and Establishment of Tribunals in Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II The Initiation of Proceedings
- III The Establishment of the Arbitral Tribunal
- A Preliminary Remarks
- B Composition of the Tribunal
- 6.52
- 6.53
- 1 Investment treaty provisions as party agreement prior to the institution of proceedings
- 2 Party agreement following the institution of proceedings under the ICSID Rules
- 3 Party agreement following the institution of proceedings under non-ICSID rules
- 4 Institutional discretion in determining the number of arbitrators
- C Appointment of the Arbitral Tribunal
- IV Conclusion
- 7 The Fate of Frivolous and Unmeritorious Claims
- 8 Challenges of Arbitrators in Investment Arbitration: Still Work in Progress?
- Preliminary Material
- I Introduction
- II The Role of Institutions and Professional Associations
- A International Centre for Settlement of International Disputes (ICSID)
- B Permanent Court of Arbitration (PCA)
- C United Nations Commission on International Trade Law (UNCITRAL)
- D International Chamber of Commerce (ICC)
- E Stockholm Chamber of Commerce (SCC)
- F London Court of International Arbitration (LCIA)
- G Singapore International Arbitration Centre (SIAC)
- H The IBA Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines)
- III Innovations in International Investment Agreements
- IV Selected Decisions on Challenges
- V Conclusion
- 9 Piercing the Veil of Confidentiality: The Recent Trend towards Greater Public Participation and Transparency in Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II Public Access to Documents
- III Third-party Written Submissions
- 9.52
- 9.53
- A NAFTA Chapter 11: The Beginning of Modern Third-party Participation in Investment Arbitration
- B The NAFTA Free Trade Commission Interpretation and Guidelines and Subsequent NAFTA Practice
- C Third-party Submissions in ICSID Cases
- D Treatment of Third-party Submissions by Other Arbitral Rules
- E Treatment of Third-party Submissions by Other Investment Treaties
- IV Public Access to Arbitral Hearings
- V Conclusion
- 5 An Overview of Procedure in an Investment Treaty Arbitration
- Part III Guide to Key Jurisdictional Issues
- 10 Who is Entitled to Claim?: The Definition of Nationality in Investment Arbitration
- Preliminary Material
- I Introduction
- II Natural Persons as Investors
- III Legal Persons as Investors
- 10.22
- 10.23
- A Customary International Law
- B State Practice/Investment Agreements
- C Jurisprudence
- 10.52
- 10.53
- 10.54
- 10.55
- 10.56
- 1 Incorporation as the defining element—the relevance (or irrelevance) of the origin of capital and control
- 10.57
- (a) When the legal person is controlled by nationals of the host state
- (b) When the legal person is a national of the host state but is controlled by nationals of the other contracting state—ICSID Article 25(2)(b)
- (c) When the legal person is controlled by nationals of a non-contracting state—corporate restructuring/abuse of process and denial of benefits
- 2 The Definition of the Company’s Seat (siège social)
- 3 Nature of the company—public entities as investors
- 4 Rights of shareholders to bring claims
- IV Conclusion
- 11 The Meaning of ‘Investment’ in Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II The Definition of ‘Investment’ in International Agreements
- III Arbitral Jurisprudence on the Definition of ‘Investment’
- A Types of Assets Constituting an ‘Investment’
- B The Interpretation of ‘Investment’ by Arbitral Tribunals
- C The Requirement that an Investment Be Made ‘In Accordance with the Host State’s Law’
- D The Requirement that an Investment Be ‘In the Territory of the Host State’
- IV Conclusion
- 12 Bifurcation of Investment Disputes
- 13 Burden and Standard of Proof at the Jurisdictional Stage
- Preliminary Material
- I General Principles Regarding Burdens of Proof
- II Distinguishing the Burden of Proof from the Standard of Proof
- III Who Bears the Burden of Proof at the Jurisdictional Phase?
- IV Who Bears the Burden of Proof Regarding Specific Jurisdictional Objections?
- 13.35
- A The National Identity of the Natural Person Claimant is in Dispute
- B The Claim Does Not Arise out of an ‘Investment’
- C The Claimant is Not an ‘Investor’ Within the Meaning of the BIT/Treaty
- D Consent to Arbitrate
- E Case Already Litigated Through Domestic Courts
- F Dispute Arose Prior to the Entry of the BIT into Force
- G Dispute Barred by a Provision of the BIT/Treaty
- V Once the Tribunal Determines Who Has the Burden of Proof, What Standard of Proof Is Applicable at the Jurisdictional Phase?
- VI Conclusion
- 14 Attribution: State Organs and Entities Exercising Elements of Governmental Authority
- 15 Breach of Treaty Claims and Breach of Contract Claims: When Can an International Tribunal Exercise Jurisdiction?
- Preliminary Material
- I Introduction
- II Treaty-based Tribunals’ Jurisdiction over Treaty Claims Arising out of an Underlying Contract
- III Treaty-based Tribunals’ Jurisdiction over ‘Purely’ Contractual Claims
- IV Distinguishing Between Breach of Treaty Claims and Breach of Contract Claims
- 15.38
- 15.39
- 15.40
- 15.41
- 15.42
- 15.43
- A The Power of Treaty-based Tribunals to Interpret Contracts
- B The Difficulty (and Irrelevance) of Attempting to Identify Contract Claims ‘Dressed’ as Treaty Claims
- C The Impact of Contractual Forum Selection Clauses on the Jurisdiction of Treaty-based Tribunals
- D The Role and Significance of ‘Fork-in-the-Road’ Provisions
- V Conclusion
- 16 The Umbrella Clause: Is the Umbrella Closing?
- Preliminary Material
- I Introduction
- II History of the Umbrella Clause and State Practice
- III Significance of the Umbrella Clause in Treaties
- IV Effects, Scope, and Conditions of Application of the Umbrella Clause
- 16.23
- 16.24
- 16.25
- A The Effects of the Umbrella Clause
- B The Scope of the Umbrella Clause or the Conditions of Its Application
- V Conclusion
- 17 Counterclaims in Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II Milestone Cases
- III Counterclaims under the ICSID Convention
- 17.19
- A Introduction to Article 46
- B Counterclaims Arising Directly out of the Subject Matter of the Dispute
- C Counterclaims Within the Scope of the Parties’ Consent
- D Counterclaims Otherwise Within ICSID’s Jurisdiction
- E Conclusion
- IV Counterclaims Under the UNCITRAL Rules
- V Moving Forward: Greater Expectations in Counterclaim Practice
- 18 The State’s Corruption Defence, Prosecutorial Efforts, and Anti-corruption Norms in Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II Binary Outcomes of the Corruption Defence—Can the Playing Field be Levelled?
- 18.12
- 18.13
- A Preliminary Remarks Regarding Jurisdiction, Admissibility, and Merits
- B Illegality Where There Is a Legality Clause
- C Illegality Where There Is No Legality Clause
- D The State’s Obligation to Prosecute or Investigate and the Corruption Defence
- III Anti-corruption Norms in Recent Investment Agreements
- IV Conclusion
- 10 Who is Entitled to Claim?: The Definition of Nationality in Investment Arbitration
- Part IV Guide to Key Substantive Issues
- 19 The Law Applicable in Investment Treaty Arbitration
- 20 Fair and Equitable Treatment: Have Its Contours Fully Evolved?
- Preliminary Material
- I Introduction
- II Does FET Refer to Customary International Law or Is It an Autonomous Standard?
- III The Normative Content of the Fair and Equitable Treatment Standard
- IV Conclusion
- 21 The National Treatment Obligation
- Preliminary Material
- I Introduction
- II Precluding Nationality-based Discrimination
- III National Treatment in Practice
- 21.17
- 21.18
- 21.19
- 21.20
- 21.21
- A The Like Circumstances Inquiry
- B Treatment Accorded the Investor
- C ‘Arbitrary and Discriminatory’ Treatment
- D Determining the Level of Treatment that Must Be Accorded a Foreign Investor
- E Objective Justifications for Differential Treatment: The Role of Burden Shifting in National Treatment Analysis
- IV Reservations and Exceptions
- V Conclusions
- 22 Indirect Expropriation and the Right to Regulate: Has the Line Been Drawn?
- Preliminary Material
- I Introduction
- II Basic Concepts of the Obligation to Compensate for Expropriation
- III The Notion of ‘Property’
- IV Legal Instruments and Other Texts
- V Main Sources of Jurisprudence
- VI Criteria Indicating Whether an Indirect Expropriation Has Occurred
- VII Conclusion
- 23 The MFN Clause and Its Evolving Boundaries
- Preliminary Material
- I Introduction
- II Historical Background
- III Bilateral Investment Treaty Practice
- A MFN Clauses and Dispute Settlement
- B The Cases
- IV Treaty-making Practice and Investment Treaty Jurisprudence
- V Conclusion
- Part V Remedies and Costs
- 24 Interim Relief in Investment Treaty Arbitration
- Preliminary Material
- I Introduction
- II The Power to Grant Interim Relief
- III Purpose of the Measures: Preserving the Respective Rights of the Parties
- IV Types of Measures
- V Requirements for Interim Relief
- VI Against Whom Can the Measures be Ordered?
- VII Effect of Interim Measures
- VIII Concurrent Jurisdiction of Domestic Courts
- IX Conclusion
- 25 Compensation and Damages in Investment Treaty Arbitration
- 26 Third-party Funding in Investment Treaty Arbitration
- 24 Interim Relief in Investment Treaty Arbitration
- Part VI The Post-Award Phase
- 27 Annulment of ICSID Awards: Is it Enough or Is Appeal around the Corner?
- Preliminary Material
- I Introduction
- II Scope and Application of Annulment under the ICSID Convention
- III The Grounds for Annulment
- IV Stay of Enforcement
- V The Quest for Coherence and Consistency: Proposals for an Appeal Mechanism
- 27.70
- 27.71
- 27.72
- 27.73
- A Past and Current Efforts to include Provisions on the Establishment of an Appeal Mechanism in Investment Agreements
- 27.74
- 1 The first wave of International Investment Agreements including an appeal mechanism
- 2 The second and current wave of International Investment Agreements including an appellate mechanism: the TPP and the EU agreements
- 3 Why an appellate mechanism in investment disputes? Advantages and disadvantages
- B What Lies Ahead? A Multilateral Solution?
- VI Conclusion
- 28 Review of non-ICSID Awards by National Courts
- Preliminary Material
- I Introduction
- II The Legal Framework for Review and Challenge of Investment Treaty Awards
- III Decisions by National Courts
- 28.14
- A Republic of Poland v Saar Papier Vertriebs GmbH
- B Russian Federation v Sedelmayer
- C Republic of Ecuador v Occidental Exploration & Production Company
- D Petrobart Ltd v Kyrgyz Republic and Kyrgyz Republic v Pertrobart Ltd
- E Czech Republic v Saluka Investments BV
- F Bayview Irrigation District 11 and Ors v Mexico
- G Czech Republic v European Media Ventures SA
- H Mexico v Cargill, Incorporated
- I Argentina v BG Group PLC
- J Energoalians (Currently Known as Komstroy) v Moldova
- K Ecuador v Chevron (USA) and Texaco
- L Sanum Investments Ltd v Lao People’s Republic
- M Russian Federation v Renta 4 S.V.S.A. et al.
- IV Discussion
- 28.127
- A Do National Courts Have Jurisdiction to Determine Challenges of Investment Treaty Awards?
- B Is It Appropriate for National Courts to Review Investment Treaty Awards?
- C What Standards of Review Do National Courts Adopt for Reviewing Challenges to the Jurisdiction of Investment Treaty Arbitral Tribunals?
- V Conclusion
- 29 Enforcement of Investment Treaty Awards
- Preliminary Material
- I Introduction
- II Enforcement of Non-ICSID Awards
- III Obstacles to the Recognition and Enforcement of Investment Awards
- IV Enforcement of ICSID Awards
- V Alternative Enforcement Mechanisms
- VI Conclusion
- 30 A Practical Guide: Research Tools in International Investment Law
- 27 Annulment of ICSID Awards: Is it Enough or Is Appeal around the Corner?
- Part I Investment Treaties and the Settlement of Investment Disputes: The Framework
- Further Material
- [3.236.237.61]
- 3.236.237.61
