This document discusses investor-state arbitration (ISA) and some of the issues that have arisen with its use. ISA allows foreign investors to pursue arbitration claims against host states for disputes related to investments. While traditionally seen as an optimal way to resolve such disputes, ISA has increasingly faced criticism in recent years over delays, high costs, and unsatisfactory outcomes. The document explores ways to strengthen ISA and examines alternative dispute resolution methods that may help prevent disputes and improve management of conflicts between investors and states.
This document discusses the sources of international law. It identifies the main sources as treaties, international customs, general principles of law, judicial decisions, and scholarly writings. It examines each source in more detail, including how treaties can become customary international law over time through widespread acceptance and practice. The Statute of the International Court of Justice is also discussed as recognizing these sources of international law. There is no definitive hierarchy between sources, but treaties and customs are generally considered primary sources, along with general principles of law.
The document summarizes the key aspects of dispute settlement in the World Trade Organization (WTO). It outlines the improvements made relative to the prior GATT system, including establishing automatic procedures for establishing panels and adopting reports. The main stages of dispute settlement under the WTO are described as consultations, panel establishment, panel procedures, appellate review, implementation, and determination of a reasonable period of time for compliance. The document provides an example case between Antigua/Barbuda and the United States regarding gambling services to illustrate how the dispute settlement process works.
Private international law (PIL), also known as conflict of laws, deals with legal disputes that involve a foreign element between private parties. It is the branch of domestic law that determines which jurisdictions' laws apply when legal issues cross international borders. PIL establishes rules for choice of jurisdiction, choice of applicable law, and recognition and enforcement of foreign judgments. The key aspects are that PIL is part of a state's domestic legal system but applies when a case contains international factors outside that legal system.
International law -Relationship between International Law and Municipal LawBangladesh Law Digest ☑
International law -Relationship between International Law and Municipal Law/Domestic Law... Presentation on International Law, Lectures on international law.
Courtesy: Bangladesh Law Digest
Website: www.bdlawdigest.org
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International law governs relations between nations and addresses issues like territorial disputes, laws of war, and human rights. It primarily concerns relations between states rather than private citizens. States are only bound by international law if they consent to and agree to abide by it. International law includes public international law, private international law, and supranational law. The main sources of international law are treaties, customary practices, and general principles recognized by nations. Secondary sources include decisions of international courts and scholarly writings.
This document discusses the settlement of international disputes. It defines an international dispute as one that arises between states concerning their relations. It notes that business disputes are increasingly multijurisdictional in nature. The document outlines the different kinds of disputes as political and legal. It then describes the various means of settling disputes peacefully as outlined in the UN Charter, including negotiation, enquiry, mediation, conciliation, arbitration, resort to regional agencies or arrangements, and judicial settlement. For each method, it provides a brief definition and explanation.
This document discusses the sources of international law. It identifies the main sources as treaties, international customs, general principles of law, judicial decisions, and scholarly writings. It examines each source in more detail, including how treaties can become customary international law over time through widespread acceptance and practice. The Statute of the International Court of Justice is also discussed as recognizing these sources of international law. There is no definitive hierarchy between sources, but treaties and customs are generally considered primary sources, along with general principles of law.
The document summarizes the key aspects of dispute settlement in the World Trade Organization (WTO). It outlines the improvements made relative to the prior GATT system, including establishing automatic procedures for establishing panels and adopting reports. The main stages of dispute settlement under the WTO are described as consultations, panel establishment, panel procedures, appellate review, implementation, and determination of a reasonable period of time for compliance. The document provides an example case between Antigua/Barbuda and the United States regarding gambling services to illustrate how the dispute settlement process works.
Private international law (PIL), also known as conflict of laws, deals with legal disputes that involve a foreign element between private parties. It is the branch of domestic law that determines which jurisdictions' laws apply when legal issues cross international borders. PIL establishes rules for choice of jurisdiction, choice of applicable law, and recognition and enforcement of foreign judgments. The key aspects are that PIL is part of a state's domestic legal system but applies when a case contains international factors outside that legal system.
International law -Relationship between International Law and Municipal LawBangladesh Law Digest ☑
International law -Relationship between International Law and Municipal Law/Domestic Law... Presentation on International Law, Lectures on international law.
Courtesy: Bangladesh Law Digest
Website: www.bdlawdigest.org
https://www.twitter.com/bdlawdigest
https://www.plus.google.com/+BdlawdigestOrg1
https://www.linkedin.com/in/bdlawdigest1
International law governs relations between nations and addresses issues like territorial disputes, laws of war, and human rights. It primarily concerns relations between states rather than private citizens. States are only bound by international law if they consent to and agree to abide by it. International law includes public international law, private international law, and supranational law. The main sources of international law are treaties, customary practices, and general principles recognized by nations. Secondary sources include decisions of international courts and scholarly writings.
This document discusses the settlement of international disputes. It defines an international dispute as one that arises between states concerning their relations. It notes that business disputes are increasingly multijurisdictional in nature. The document outlines the different kinds of disputes as political and legal. It then describes the various means of settling disputes peacefully as outlined in the UN Charter, including negotiation, enquiry, mediation, conciliation, arbitration, resort to regional agencies or arrangements, and judicial settlement. For each method, it provides a brief definition and explanation.
Competition Advocacy is the practice of disseminating awareness on competition issues in India. Competition Commission is the statutory body which is responsible for creating awareness, workshops and training on competition law in India, enhancing fairness and transparency in Indian market and thereby creating a conducive economically competitive culture in market which remarks a progressive market image in global market.
The document discusses the sources of international law as outlined in Article 38 of the Statute of the International Court of Justice. The four main sources are: 1) international conventions and treaties, 2) international customs, 3) general principles of law, and 4) judicial decisions and writings of publicists. Treaties can be either law-making or contractual. Customary international law requires consistent state practice and opinio juris. General principles fill gaps where no positive laws exist. Judicial decisions and writings are considered subsidiary sources.
The Dispute Settlement Body (DSB) of the World Trade Organization (WTO) oversees the settlement of trade disputes between WTO member governments. It comprises representatives from all WTO members who receive instructions from their governments. The DSB is responsible for establishing panels to hear disputes, adopting panel reports, and authorizing retaliation if members fail to comply with rulings. It generally operates by consensus. The WTO Director-General and Secretariat provide administrative support to the DSB and its dispute settlement processes.
This document outlines the distinction between private international law and public international law. Private international law determines which law applies in cases involving foreign elements and regulates relationships between private individuals in different countries. Public international law regulates relationships between nation states and determines some rights and duties for non-state entities. The document then discusses the Yahoo incorporation case, where French groups sued Yahoo for allowing auctions of Nazi memorabilia on its site, which was accessible in France and violated French law. The court ordered Yahoo to block French users from accessing these auctions. Finally, the document notes that a rule of private international law can become public international law if incorporated into a treaty or established as international custom through decisions of international tribunals.
The document discusses key principles of extradition including double criminality, specialty, and political exceptions. It provides examples of the extradition of Atong Ang from the US to the Philippines to face plunder charges and the arrest of Jose Maria Sison in the Netherlands for his involvement in assassinations in the Philippines. Due to the lack of an extradition treaty, the Philippine government will wait for the Dutch resolution of Sison's case before seeking his return.
This presentation depicts the evolution of International Trade Law and major steps taken to formulate the specialized forum dealing solely on international trade negotiations, it further enumerates the significance of World Trade Organizatio
In response to rising court costs, delays and congestion, the need to facilitate access to justice and to provide more 'effective' forms of dispute resolution, the phenomenon known as ADR was born.
This presentation provides an overview of Alternative Dispute Resolution (ADR) and different ADR mechanisms used all over the world.
ADR - 6TH May Cpt. BHATIA (F) - 7TH LECTURE PART IIcmmindia2017
This document discusses the enforcement of foreign arbitration awards under the Arbitration and Conciliation Act of India. It covers key parts of the Act related to New York Convention awards and Geneva Convention awards. For NY Convention awards, it outlines the conditions for an award to be considered foreign and enforceable in India, including the evidence required and grounds for refusing enforcement. It also discusses the conciliation process in India, including commencement of proceedings, appointment of conciliators, their role and flexibility in procedures.
Settlement of international disputes (International Law) Amicable(Rajat Vaish...R V
Types of Settlement of dispute negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement
The methods of peaceful settlement of disputes fall into three categories:
1.) Diplomatic Method
2.) Adjudicative Method
3.) Instituional Method
The document discusses the law of treaties, specifically focusing on the Vienna Convention on the Law of Treaties. It provides definitions for key terms like "treaty" and discusses elements of a treaty based on the Vienna Convention. It also examines the conclusion of treaties, including treaty making capacity, steps to conclude a treaty through negotiation, adoption, expression of consent, and issues like reservations. The document is analyzing the law of treaties under the Vienna Convention framework.
This document discusses the history and process of codifying international law. It outlines key events and efforts over time to systematically organize international legal rules and principles into written codes and agreements. Some of the major developments mentioned include the Hague Conferences of 1899 and 1907 which resulted in the first international conventions, the work of the League of Nations and United Nations to further codification, and important conventions on topics like the law of the sea, diplomatic relations, and treaties. Both benefits and challenges of the codification process are also reviewed.
The document summarizes key provisions of the final act of the Uruguay Round agreements. It discusses agreements related to agriculture, sanitary measures, helping least developed countries, textiles and clothing, intellectual property rights (TRIPS), services (GATS), subsidies and countervailing measures (SCM), dumping, and the WTO antidumping agreement. The provisions establish new rules for trade in agriculture, recognize rights of countries to enact health regulations, and provide assistance to developing and food importing countries.
Alternative dipsute resolution system is informal method of resolving conflicts. there are different modes of ADR viz., negotiations, mediation , conciliation and arbitration etc.
This document discusses provisions around alternative dispute resolution and arbitration. It outlines that an arbitral tribunal shall consist of an odd number of arbitrators unless otherwise agreed, with each party appointing one in a three-arbitrator panel. An arbitrator may only be challenged for circumstances that raise doubts on impartiality or independence, lack of qualifications, or reasons a party became aware of after appointment. The procedure for a challenge requires sending a written statement within 15 days of the relevant event or constitution of the tribunal.
Peaceful settlement of international disputeMahesh Patil
The document discusses various peaceful methods for settling international disputes, including negotiation, mediation, arbitration, conciliation, and judicial settlement. Negotiation involves direct discussions between the disputing parties without third party intervention, while mediation involves a neutral third party assisting the negotiations. Arbitration and judicial settlement involve referring the dispute to a third party for a binding decision. Conciliation is a more flexible process where a committee makes non-binding proposals to help resolve the dispute. Examples of each method being used throughout history are provided.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards Joyce Williams
The document provides an overview of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It notes that the convention was adopted in 1958 and has 156 signatories including Ghana. The key provisions discussed include that arbitration agreements must be in writing, the convention defines five grounds for refusing enforcement of an award, and courts can also refuse enforcement based on arbitrability and public policy concerns. The convention aims to encourage broad enforcement of international arbitration awards.
The document provides a history of Region 1 (Ilocos Region) in the Philippines. It discusses the origins and settlement of the region by indigenous groups and later immigrants. It then covers the colonial history under Spain and periods of administration by the US and Japan. Statistics on population growth and division into provinces are also mentioned. The bulk of the document focuses on describing the individual provinces of Ilocos Norte, Ilocos Sur, and La Union, including their cultures, traditions, festivals, products, famous people, and major tourist attractions.
This document provides an overview of the folk arts and designs of the Luzon region in the Philippines. It discusses the textile arts, weaving traditions, and crafts of different ethnic groups in Luzon. Some of the groups highlighted include the Ilocanos from Ilocos Region, known for their patterned fabrics and natural dyes. The Cordillera people such as the Kalinga, Ifugao, and tribes of the Mountain Province like the Bontoc are renowned for their woven textiles, baskets, amulets, and tattoo art designs that represent their culture and traditions.
Competition Advocacy is the practice of disseminating awareness on competition issues in India. Competition Commission is the statutory body which is responsible for creating awareness, workshops and training on competition law in India, enhancing fairness and transparency in Indian market and thereby creating a conducive economically competitive culture in market which remarks a progressive market image in global market.
The document discusses the sources of international law as outlined in Article 38 of the Statute of the International Court of Justice. The four main sources are: 1) international conventions and treaties, 2) international customs, 3) general principles of law, and 4) judicial decisions and writings of publicists. Treaties can be either law-making or contractual. Customary international law requires consistent state practice and opinio juris. General principles fill gaps where no positive laws exist. Judicial decisions and writings are considered subsidiary sources.
The Dispute Settlement Body (DSB) of the World Trade Organization (WTO) oversees the settlement of trade disputes between WTO member governments. It comprises representatives from all WTO members who receive instructions from their governments. The DSB is responsible for establishing panels to hear disputes, adopting panel reports, and authorizing retaliation if members fail to comply with rulings. It generally operates by consensus. The WTO Director-General and Secretariat provide administrative support to the DSB and its dispute settlement processes.
This document outlines the distinction between private international law and public international law. Private international law determines which law applies in cases involving foreign elements and regulates relationships between private individuals in different countries. Public international law regulates relationships between nation states and determines some rights and duties for non-state entities. The document then discusses the Yahoo incorporation case, where French groups sued Yahoo for allowing auctions of Nazi memorabilia on its site, which was accessible in France and violated French law. The court ordered Yahoo to block French users from accessing these auctions. Finally, the document notes that a rule of private international law can become public international law if incorporated into a treaty or established as international custom through decisions of international tribunals.
The document discusses key principles of extradition including double criminality, specialty, and political exceptions. It provides examples of the extradition of Atong Ang from the US to the Philippines to face plunder charges and the arrest of Jose Maria Sison in the Netherlands for his involvement in assassinations in the Philippines. Due to the lack of an extradition treaty, the Philippine government will wait for the Dutch resolution of Sison's case before seeking his return.
This presentation depicts the evolution of International Trade Law and major steps taken to formulate the specialized forum dealing solely on international trade negotiations, it further enumerates the significance of World Trade Organizatio
In response to rising court costs, delays and congestion, the need to facilitate access to justice and to provide more 'effective' forms of dispute resolution, the phenomenon known as ADR was born.
This presentation provides an overview of Alternative Dispute Resolution (ADR) and different ADR mechanisms used all over the world.
ADR - 6TH May Cpt. BHATIA (F) - 7TH LECTURE PART IIcmmindia2017
This document discusses the enforcement of foreign arbitration awards under the Arbitration and Conciliation Act of India. It covers key parts of the Act related to New York Convention awards and Geneva Convention awards. For NY Convention awards, it outlines the conditions for an award to be considered foreign and enforceable in India, including the evidence required and grounds for refusing enforcement. It also discusses the conciliation process in India, including commencement of proceedings, appointment of conciliators, their role and flexibility in procedures.
Settlement of international disputes (International Law) Amicable(Rajat Vaish...R V
Types of Settlement of dispute negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement
The methods of peaceful settlement of disputes fall into three categories:
1.) Diplomatic Method
2.) Adjudicative Method
3.) Instituional Method
The document discusses the law of treaties, specifically focusing on the Vienna Convention on the Law of Treaties. It provides definitions for key terms like "treaty" and discusses elements of a treaty based on the Vienna Convention. It also examines the conclusion of treaties, including treaty making capacity, steps to conclude a treaty through negotiation, adoption, expression of consent, and issues like reservations. The document is analyzing the law of treaties under the Vienna Convention framework.
This document discusses the history and process of codifying international law. It outlines key events and efforts over time to systematically organize international legal rules and principles into written codes and agreements. Some of the major developments mentioned include the Hague Conferences of 1899 and 1907 which resulted in the first international conventions, the work of the League of Nations and United Nations to further codification, and important conventions on topics like the law of the sea, diplomatic relations, and treaties. Both benefits and challenges of the codification process are also reviewed.
The document summarizes key provisions of the final act of the Uruguay Round agreements. It discusses agreements related to agriculture, sanitary measures, helping least developed countries, textiles and clothing, intellectual property rights (TRIPS), services (GATS), subsidies and countervailing measures (SCM), dumping, and the WTO antidumping agreement. The provisions establish new rules for trade in agriculture, recognize rights of countries to enact health regulations, and provide assistance to developing and food importing countries.
Alternative dipsute resolution system is informal method of resolving conflicts. there are different modes of ADR viz., negotiations, mediation , conciliation and arbitration etc.
This document discusses provisions around alternative dispute resolution and arbitration. It outlines that an arbitral tribunal shall consist of an odd number of arbitrators unless otherwise agreed, with each party appointing one in a three-arbitrator panel. An arbitrator may only be challenged for circumstances that raise doubts on impartiality or independence, lack of qualifications, or reasons a party became aware of after appointment. The procedure for a challenge requires sending a written statement within 15 days of the relevant event or constitution of the tribunal.
Peaceful settlement of international disputeMahesh Patil
The document discusses various peaceful methods for settling international disputes, including negotiation, mediation, arbitration, conciliation, and judicial settlement. Negotiation involves direct discussions between the disputing parties without third party intervention, while mediation involves a neutral third party assisting the negotiations. Arbitration and judicial settlement involve referring the dispute to a third party for a binding decision. Conciliation is a more flexible process where a committee makes non-binding proposals to help resolve the dispute. Examples of each method being used throughout history are provided.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards Joyce Williams
The document provides an overview of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It notes that the convention was adopted in 1958 and has 156 signatories including Ghana. The key provisions discussed include that arbitration agreements must be in writing, the convention defines five grounds for refusing enforcement of an award, and courts can also refuse enforcement based on arbitrability and public policy concerns. The convention aims to encourage broad enforcement of international arbitration awards.
The document provides a history of Region 1 (Ilocos Region) in the Philippines. It discusses the origins and settlement of the region by indigenous groups and later immigrants. It then covers the colonial history under Spain and periods of administration by the US and Japan. Statistics on population growth and division into provinces are also mentioned. The bulk of the document focuses on describing the individual provinces of Ilocos Norte, Ilocos Sur, and La Union, including their cultures, traditions, festivals, products, famous people, and major tourist attractions.
This document provides an overview of the folk arts and designs of the Luzon region in the Philippines. It discusses the textile arts, weaving traditions, and crafts of different ethnic groups in Luzon. Some of the groups highlighted include the Ilocanos from Ilocos Region, known for their patterned fabrics and natural dyes. The Cordillera people such as the Kalinga, Ifugao, and tribes of the Mountain Province like the Bontoc are renowned for their woven textiles, baskets, amulets, and tattoo art designs that represent their culture and traditions.
The document provides an overview of the theater industry in the Philippines. It discusses several prominent theater groups that stage original Philippine and international productions, including the Philippine Educational Theater Association (PETA), Tanghalang Pilipino, Repertory Philippines, Trumpets, New Voice Company, and Theater Down South. It also outlines key roles in a stage production such as the producer, playwright, director, set designer, lighting designer, and others. Finally, it provides an activity asking the reader to watch a play and write a reaction paper analyzing various artistic elements.
Region 3, located in central Luzon, Philippines, is composed of 7 provinces - Aurora, Bataan, Bulacan, Nueva Ecija, Pampanga, Tarlac, and Zambales. It has a total area of 18,230.8 square kilometers and is the largest rice producing region in the country. The region has a diverse landscape ranging from coastal areas to mountains. It also has a variety of cultural festivals, historical sites, natural attractions, and is known for industries like agriculture, aquaculture, and manufacturing. The largest city and regional center is San Fernando, Pampanga.
Region VII in the central Philippines includes four provinces and three highly urbanized cities. It has a total population of over 6 million people, making it the 5th most populous region. The region's economy depends heavily on tourism, with popular attractions including beaches, dive sites, the Chocolate Hills of Bohol, and historical Spanish colonial structures. Cebu City is the largest city and center of commerce in the region.
Region 7, located in central Visayas, consists of four provinces - Bohol, Cebu, Negros Oriental, and Siquijor. With a total land area of 15,875 sq km and population of over 6.3 million people, it is the 5th most populous region in the Philippines. The dominant language is Cebuano. Notable festivals include religious processions for Santo Niño and the Bugwas Festival in San Juan honoring St. Augustine of Hippo. The region has several prominent universities including University of San Carlos, Cebu Normal College, and University of San Jose-Recoletos.
Who benefits from the Internationalization of Petroleum DisputesQuincy Izibili
This document provides an introduction and overview of the International Centre for Settlement of Investment Disputes (ICSID) and its dispute resolution mechanism. The key points are:
1) ICSID was established in 1966 under the World Bank to provide arbitration, mediation and other alternative dispute resolution for investment disputes between states and foreign investors.
2) ICSID's jurisdiction is limited to transnational commercial investments and does not include claims between states or investors.
3) Common types of dispute resolution mechanisms available through ICSID include arbitration, expert determination, conciliation and mediation, with the goal of reconciling parties and resolving conflicts.
Contour of Investment Dispute Settlement Mechanism A Crucial Analysis of its ...ijtsrd
This paper x rays the primordial role of the investor state dispute settlement ISDS mechanisms in fostering international cooperation for economic development, especially in the extractive industries EI . As it provides a forum for investors to bring claims against States and vice versa. The ICSID Convention maintains a careful balance between the interests of the investors and those of the host States as the Convention permits the institution of proceedings by both the host States and the investors. However, the evolution of the international investment system has transformed this broadly conceived forum into a relatively unilateral forum. Since under the current system, the best a Respondent State can hope for is that the investor covers their legal costs. With the investors having much to gain, while the States have everything to lose. As such, any successful State counterclaims and claims can serve as a deterrent to any frivolous claim from the investors, thus, providing the Respondent States with a motive to bypass jurisdictional objections and move straight to the merits. In this vein, the right granted to the private parties, to effectively sue a sovereign State for breaches of “acquired rights” granted in contracts, international investment agreements IIAs , and customary international law, has been called, by both the opponents and proponents, as the pulling down of the State to the same level as a private party. Despite ICSID permission and encouragement of State counterclaims, most State counterclaims in ISDS always fail because of the narrow interpretations of the counterclaim jurisdictional requirements, as well as the lack of substantive protections for States in contracts and IIAs. On this account, the paper also considers the effectiveness of ISDS and enforcement in Cameroon, and the ISDS proceedings under the OHADA system. Which in pursuant to the global recognition of arbitration as a predominant ISDS mechanism and the concomitant growth in the normative and institutional frameworks regulating the conduct of investment arbitration, created the Common Court for Justice and Arbitration CCJA and adopted the Uniform Act on Arbitration as the lex loci arbitri for all arbitration proceedings conducted within the OHADA zone. Although investors are still sceptical about such ISDS mechanisms because they are afraid of its legal and judicial uncertainty and insecurity – thus, prompting them to anchor at the ICSID. That being the case, the paper examines these issues by first cascading the spectrum and implications of the investment dispute settlement mechanisms – by focusing on the rights and obligations of the parties of an ISDS process, and then tackling the purview and impact of investment dispute settlement and enforcement framework in Cameroon, by examining the alternative mechanisms that can enhance sustainability in its EI. Bande Gulbert Mbah Tarh "Contour of Investment Dispute Settlement Mechanism: A Crucial Analysis of its Purvie
The document discusses international arbitration and its role in promoting foreign direct investment in developing countries. It defines key terms like foreign direct investment and the International Centre for Settlement of Investment Disputes. International arbitration offers investors an impartial dispute resolution process compared to local courts. Joining arbitration organizations like ICSID signals a country's commitment to protecting foreign investors and encouraging investment. The document also summarizes the Occidental Petroleum v. Ecuador case which resulted in a $1.77 billion award, the largest in ICSID history.
A better way to understand the international trade arbitrationShahram Shirkhani
Today companies have more sophisticated methods and always try to find means and suitable locations to resolve trade and international investment disputes, such as international arbitration.
A comparative legal analysis of the application of alternativeAlexander Decker
This document discusses alternative dispute resolution (ADR) techniques for banking disputes, with a focus on Nigeria and select countries. It begins by providing context on disputes in the banking industry, which can be between banks/customers, banks/regulators, and customers/regulators. The paper then defines ADR as processes outside formal litigation, like mediation and arbitration, to resolve disputes quickly and at low cost. It examines key ADR techniques used for financial disputes in countries like Italy, Germany, France, and the UK. The main ADR approaches in Nigeria - mediation, conciliation, and arbitration - are also overviewed in terms of their processes and applicable laws.
A comparative legal analysis of the application of alternativeAlexander Decker
This document discusses alternative dispute resolution (ADR) techniques for banking disputes, with a focus on Nigeria and other countries. It begins by defining ADR as processes that resolve disputes outside of formal litigation, like mediation and arbitration. The document then examines various ADR techniques used for financial disputes in countries like Italy, Germany, France, and the UK. It provides an overview of ADR techniques recognized in Nigeria, including arbitration, conciliation, and mediation. The document also discusses other ADR options and analyzes what types of disputes can be referred to arbitration in Nigeria, such as matters involving property, contract breaches, and questions of law.
This document provides an overview of foreign investment in the energy sectors of Bolivia and Ecuador. It discusses how both countries initially liberalized their economies and energy laws in the 1980s-1990s to attract foreign investment and partnerships in oil/gas projects. However, in the late 1990s/2000s, both experienced a rise in resource nationalism as left-wing governments sought greater state control over natural resources. This led to disputes between investors and the states and cases at ICSID. The document examines the cycle of resource nationalism and how international investment law aims to balance state sovereignty and investor protections.
Consulta pública sobre as modalidades de protecção do investimento e ISDS em ...Cláudio Carneiro
The document discusses the EU's objectives and approach regarding investment protection provisions in TTIP in several areas:
1. The scope of provisions aims to protect investments made legally while avoiding "shell" companies. The EU wants to define investors as having substantial business activities in the territory.
2. Non-discrimination provisions ensure foreign and domestic investors are treated equally. The EU seeks to apply these standards after establishment but allow some pre-establishment exceptions in limited sectors.
3. The right to regulate confirms states' ability to achieve public policy goals through non-discriminatory measures, even if they negatively impact investments. The EU clarifies terms like "fair and equitable treatment" and "indirect expropriation."
The document is the editorial for the 10th anniversary issue of Transnational Dispute Management (TDM). It discusses:
1) TDM has grown over the past 10 years to become a preeminent forum for articles on transnational dispute management, paralleling the growth of international investment law.
2) TDM discusses a wide range of topics related to international dispute resolution including investment treaty arbitration, commercial arbitration, litigation in national courts, and various other methods.
3) TDM would not be successful without the support of its publisher MARIS and the vision of its founder Prof. Thomas Wälde. The editorial dedicates the next 10 years to the TDM community.
Ris itescaa capacity building progremmePreet Sethi
This Presentation was given by Preet Sethi on the 19th of Feb 2013 at the RIS’ (Research and Information Systems for Developing Countries) Capacity Building Programme on 'International Economic Issues and Development Policy (IEIDP)' under the ITEC / SCAAP Programme of the Ministry of External Affairs, GOI. The topic of the presentation is ‘Legal Issues in Global Business Negotiations’
1. International investment law has historically curbed the regulatory freedom of host states by expanding protections for foreign investors through principles like international minimum standard of treatment, national treatment, and most-favored-nation treatment.
2. This has limited host states' ability to regulate in the public interest and fulfill their obligations to their own citizens.
3. The document proposes recognizing a "national minimum standard of protection for host states" based on concepts of social contract and human rights law, to establish a baseline ability for host states to protect their citizens from corporate harms and fulfill their democratic mandates.
This document discusses state liability in investment treaty arbitration. It notes that there are now over 2,500 bilateral investment treaties worldwide that offer foreign investors direct legal recourse against host states through international arbitration. These treaties, along with requirements for compensation in indirect expropriation and standards of fair/equitable treatment, have transformed how state liability is viewed in international law. The document examines how investment arbitration poses new normative challenges, such as arbitral bodies defining the relationship between property rights and public interests. It provides an interdisciplinary analysis of key issues in bilateral investment treaty arbitration, including historical perspectives on state responsibility, economic explanations for proliferation of investment treaties, analysis of legitimacy issues, and examinations of jurisprudence around expropri
Direct and indirect expropriation of FDI Supervised by Bashar H. MalkawiBashar H Malkawi
There are unseen difficulties arise along with the government measures whose main object is not to expropriate or to nationalize the foreign investment, but to deprive the rights attached to the investments of the foreign. These measures are generally known as measures of indirect expropriation or nationalization.
This document summarizes arguments against including Investor-State Dispute Settlement (ISDS) provisions in trade agreements like the Trans-Pacific Partnership (TPP). It notes that ISDS was originally intended to protect investors in countries without strong legal systems, but is now often used to challenge regulations in countries with robust legal protections. The document expresses concerns that ISDS threatens sovereignty by allowing corporations to dictate policy to governments and undermines transparency. It argues ISDS disproportionately benefits large corporations and privileges foreign firms over domestic ones.
Looking forward in international arbitration Rebecca Davis
The document discusses several trends and challenges in international commercial dispute resolution, including the increasing popularity and use of mediation, the rise of specialized domestic commercial courts that can rival arbitration, and issues with the investor-state dispute settlement system like forum shopping and inconsistent decisions. Specialized domestic courts are becoming more viable options for resolving international disputes as their judgments gain easier enforcement. Investor-state arbitration faces challenges around inconsistent decisions and public backlash that systems like the proposed European Investment Court aim to address.
This document discusses foreign investment and key aspects of international investment agreements and treaties. It provides an overview of foreign direct investment and portfolio investment [SENTENCE 1]. It then outlines some common provisions in international investment agreements regarding fair and equitable treatment, expropriation and compensation, national treatment, and investor-state dispute settlement [SENTENCE 2]. Finally, it discusses reforms aimed at balancing investor rights with regulatory autonomy and aligning investment with sustainable development [SENTENCE 3].
This document discusses foreign investment and key aspects of international investment agreements and treaties. It provides an overview of foreign direct investment and portfolio investment [SENTENCE 1]. It then outlines some core principles and mechanisms in international investment agreements, including fair and equitable treatment, expropriation and compensation, national treatment, and investor-state dispute settlement [SENTENCE 2]. Finally, it summarizes the significance and dispute resolution mechanisms in several major international agreements and treaties governing foreign investment [SENTENCE 3].
Similar to Investor state arbitration exploring conteporary issues and remedy (20)
Abnormalities of hormones and inflammatory cytokines in women affected with p...Alexander Decker
Women with polycystic ovary syndrome (PCOS) have elevated levels of hormones like luteinizing hormone and testosterone, as well as higher levels of insulin and insulin resistance compared to healthy women. They also have increased levels of inflammatory markers like C-reactive protein, interleukin-6, and leptin. This study found these abnormalities in the hormones and inflammatory cytokines of women with PCOS ages 23-40, indicating that hormone imbalances associated with insulin resistance and elevated inflammatory markers may worsen infertility in women with PCOS.
A usability evaluation framework for b2 c e commerce websitesAlexander Decker
This document presents a framework for evaluating the usability of B2C e-commerce websites. It involves user testing methods like usability testing and interviews to identify usability problems in areas like navigation, design, purchasing processes, and customer service. The framework specifies goals for the evaluation, determines which website aspects to evaluate, and identifies target users. It then describes collecting data through user testing and analyzing the results to identify usability problems and suggest improvements.
A universal model for managing the marketing executives in nigerian banksAlexander Decker
This document discusses a study that aimed to synthesize motivation theories into a universal model for managing marketing executives in Nigerian banks. The study was guided by Maslow and McGregor's theories. A sample of 303 marketing executives was used. The results showed that managers will be most effective at motivating marketing executives if they consider individual needs and create challenging but attainable goals. The emerged model suggests managers should provide job satisfaction by tailoring assignments to abilities and monitoring performance with feedback. This addresses confusion faced by Nigerian bank managers in determining effective motivation strategies.
A unique common fixed point theorems in generalized dAlexander Decker
This document presents definitions and properties related to generalized D*-metric spaces and establishes some common fixed point theorems for contractive type mappings in these spaces. It begins by introducing D*-metric spaces and generalized D*-metric spaces, defines concepts like convergence and Cauchy sequences. It presents lemmas showing the uniqueness of limits in these spaces and the equivalence of different definitions of convergence. The goal of the paper is then stated as obtaining a unique common fixed point theorem for generalized D*-metric spaces.
A trends of salmonella and antibiotic resistanceAlexander Decker
This document provides a review of trends in Salmonella and antibiotic resistance. It begins with an introduction to Salmonella as a facultative anaerobe that causes nontyphoidal salmonellosis. The emergence of antimicrobial-resistant Salmonella is then discussed. The document proceeds to cover the historical perspective and classification of Salmonella, definitions of antimicrobials and antibiotic resistance, and mechanisms of antibiotic resistance in Salmonella including modification or destruction of antimicrobial agents, efflux pumps, modification of antibiotic targets, and decreased membrane permeability. Specific resistance mechanisms are discussed for several classes of antimicrobials.
A transformational generative approach towards understanding al-istifhamAlexander Decker
This document discusses a transformational-generative approach to understanding Al-Istifham, which refers to interrogative sentences in Arabic. It begins with an introduction to the origin and development of Arabic grammar. The paper then explains the theoretical framework of transformational-generative grammar that is used. Basic linguistic concepts and terms related to Arabic grammar are defined. The document analyzes how interrogative sentences in Arabic can be derived and transformed via tools from transformational-generative grammar, categorizing Al-Istifham into linguistic and literary questions.
A time series analysis of the determinants of savings in namibiaAlexander Decker
This document summarizes a study on the determinants of savings in Namibia from 1991 to 2012. It reviews previous literature on savings determinants in developing countries. The study uses time series analysis including unit root tests, cointegration, and error correction models to analyze the relationship between savings and variables like income, inflation, population growth, deposit rates, and financial deepening in Namibia. The results found inflation and income have a positive impact on savings, while population growth negatively impacts savings. Deposit rates and financial deepening were found to have no significant impact. The study reinforces previous work and emphasizes the importance of improving income levels to achieve higher savings rates in Namibia.
A therapy for physical and mental fitness of school childrenAlexander Decker
This document summarizes a study on the importance of exercise in maintaining physical and mental fitness for school children. It discusses how physical and mental fitness are developed through participation in regular physical exercises and cannot be achieved solely through classroom learning. The document outlines different types and components of fitness and argues that developing fitness should be a key objective of education systems. It recommends that schools ensure pupils engage in graded physical activities and exercises to support their overall development.
A theory of efficiency for managing the marketing executives in nigerian banksAlexander Decker
This document summarizes a study examining efficiency in managing marketing executives in Nigerian banks. The study was examined through the lenses of Kaizen theory (continuous improvement) and efficiency theory. A survey of 303 marketing executives from Nigerian banks found that management plays a key role in identifying and implementing efficiency improvements. The document recommends adopting a "3H grand strategy" to improve the heads, hearts, and hands of management and marketing executives by enhancing their knowledge, attitudes, and tools.
This document discusses evaluating the link budget for effective 900MHz GSM communication. It describes the basic parameters needed for a high-level link budget calculation, including transmitter power, antenna gains, path loss, and propagation models. Common propagation models for 900MHz that are described include Okumura model for urban areas and Hata model for urban, suburban, and open areas. Rain attenuation is also incorporated using the updated ITU model to improve communication during rainfall.
A synthetic review of contraceptive supplies in punjabAlexander Decker
This document discusses contraceptive use in Punjab, Pakistan. It begins by providing background on the benefits of family planning and contraceptive use for maternal and child health. It then analyzes contraceptive commodity data from Punjab, finding that use is still low despite efforts to improve access. The document concludes by emphasizing the need for strategies to bridge gaps and meet the unmet need for effective and affordable contraceptive methods and supplies in Punjab in order to improve health outcomes.
A synthesis of taylor’s and fayol’s management approaches for managing market...Alexander Decker
1) The document discusses synthesizing Taylor's scientific management approach and Fayol's process management approach to identify an effective way to manage marketing executives in Nigerian banks.
2) It reviews Taylor's emphasis on efficiency and breaking tasks into small parts, and Fayol's focus on developing general management principles.
3) The study administered a survey to 303 marketing executives in Nigerian banks to test if combining elements of Taylor and Fayol's approaches would help manage their performance through clear roles, accountability, and motivation. Statistical analysis supported combining the two approaches.
A survey paper on sequence pattern mining with incrementalAlexander Decker
This document summarizes four algorithms for sequential pattern mining: GSP, ISM, FreeSpan, and PrefixSpan. GSP is an Apriori-based algorithm that incorporates time constraints. ISM extends SPADE to incrementally update patterns after database changes. FreeSpan uses frequent items to recursively project databases and grow subsequences. PrefixSpan also uses projection but claims to not require candidate generation. It recursively projects databases based on short prefix patterns. The document concludes by stating the goal was to find an efficient scheme for extracting sequential patterns from transactional datasets.
A survey on live virtual machine migrations and its techniquesAlexander Decker
This document summarizes several techniques for live virtual machine migration in cloud computing. It discusses works that have proposed affinity-aware migration models to improve resource utilization, energy efficient migration approaches using storage migration and live VM migration, and a dynamic consolidation technique using migration control to avoid unnecessary migrations. The document also summarizes works that have designed methods to minimize migration downtime and network traffic, proposed a resource reservation framework for efficient migration of multiple VMs, and addressed real-time issues in live migration. Finally, it provides a table summarizing the techniques, tools used, and potential future work or gaps identified for each discussed work.
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This document discusses data mining of big data using Hadoop and MongoDB. It provides an overview of Hadoop and MongoDB and their uses in big data analysis. Specifically, it proposes using Hadoop for distributed processing and MongoDB for data storage and input. The document reviews several related works that discuss big data analysis using these tools, as well as their capabilities for scalable data storage and mining. It aims to improve computational time and fault tolerance for big data analysis by mining data stored in Hadoop using MongoDB and MapReduce.
1. The document discusses several challenges for integrating media with cloud computing including media content convergence, scalability and expandability, finding appropriate applications, and reliability.
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Investor state arbitration exploring conteporary issues and remedy
1. Journal of Law, Policy and Globalization www.iiste.org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.13, 2013
12
Investor-State Arbitration: Exploring Conteporary Issues and
Remedy
Ali Qtaishat*
Assistance Professor, Collage of Economics and Administrative Sciences, Al-Imam Muhammed Ibn Saud
Islamic University, P.O Box 5701 Riyadh 1432 Kingdom of Saudi Arabia, Tel. +966502074232, E-mail of the
corresponding author: dr.aliq@yahoo.com
Abstract
In recent years there has been rapid expansion of investments by foreign investors in countries around the world.
For addressing the investment-related disputes, the Investor-State Arbitration (ISA) has been frequently resorted
to by the parties. Arbitration is thus the preferred and widely used ADR mechanism in the sphere of
commercial disputes between foreign investor and host state. However, of late there has been increasing
criticism of ISA coming from the disputants (parties) and various stakeholders. These criticisms have mainly to
do with the over delays, costs, unsatisfactory results, loss of harmony-which many a time follow with arbitration.
Arbitration in this sense has become comparable with litigation. Foreign investors may find it hard to continue
with their business in the host state if the dispute resolution remains slow, tardy, costly and foremost
unsatisfactory. Further, host state also risks losing key investments to the detriment of its national economy.
Not to speak of delays, costs and other attendant problems, the major challenge to ISA remains the political
issues which many times rights-based arbitral process might generate. That is to say, if the arbitral award is
against the host state’s national interest, the same might create contentious issues, thus challenging the entire
mechanism of ISA.
In the light of the above, the present paper will first discuss the current global trend of ISA and will highlight the
problems associated with it. It will then explore the ways and means of strengthening the ISA mechanism in
addressing the investor-state disputes. Thus it will primarily offer analysis of the critical aspects of ISA. To this
end it will discuss the ‘other’ consensual forms of dispute resolution like mediation, conciliation and negotiation
and how they can effectively help in dispute prevention and management. In this way, it is supposed, the present
paper will analyse critically the growing discussion surrounding the utility of Investor-State Arbitration as
currently happening at the global level.
Keywords: Arbitration, Investment, Investor-State Arbitration, Alternative Dispute Resolution
1. Introduction
In recent years there has been rapid expansion of investments by foreign investors in countries around the world.
For addressing the investment-related disputes, the Investor-State Arbitration (ISA) has been frequently resorted
to by the parties. Arbitration is thus the preferred and widely used ADR mechanism in the sphere of
commercial disputes between foreign investor and host state. However, of late there has been increasing
criticism of ISA coming from the disputants (parties) and various stakeholders. These criticisms have mainly to
do with the over delays, costs, unsatisfactory results, loss of harmony-which many a time follow with arbitration.
Arbitration in this sense has become comparable with litigation. Foreign investors may find it hard to continue
with their business in the host state if the dispute resolution remains slow, tardy, costly and foremost
unsatisfactory. Further, host state also risks losing key investments to the detriment of its national economy.
Not to speak of delays, costs and other attendant problems, the major challenge to ISA remains the political
issues which many times rights-based arbitral process might generate. That is to say, if the arbitral award is
against the host state’s national interest, the same might create contentious issues, thus challenging the entire
mechanism of ISA.
In the light of the above, the present paper will first discuss the current global trend of ISA and will highlight the
problems associated with it. It will then explore the ways and means of strengthening the ISA mechanism in
addressing the investor-state disputes. Thus it will primarily offer analysis of the critical aspects of ISA. To this
end it will discuss the ‘other’ consensual forms of dispute resolution like mediation, conciliation and negotiation
and how they can effectively help in dispute prevention and management. In this way, it is supposed, the present
paper will analyse critically the growing discussion surrounding the utility of Investor-State Arbitration as
2. Journal of Law, Policy and Globalization www.iiste.org
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.13, 2013
13
currently happening at the global level.
2. INVESTOR-STATE ARBITRATION: SOME PRELIMINARY OBSERVATIONS
In contemporary international investment law, international arbitration has established itself as the main option
through which foreign investors can pursue claims that they have against a host State resulting from an
investment dispute. Provisions on investor–State dispute settlement (ISDS) are enshrined in almost all
contemporary international investment agreements (IIAs)1
. To provide in IIAs that arbitration and not litigation
in national courts should constitute the main method to resolve investment disputes is considered as an important
element of investment protection.
Furthermore, international arbitration has long been seen as the optimal way to address and resolve disputes
between investors and States, and is to some extent still considered as such today. It depoliticizes investment
disputes, assures adjudicative neutrality and independence, and was often perceived as a swift, cheap, flexible
and familiar procedure. Moreover, international arbitration is seen to be offering the parties a possibility to
exercise a substantial amount of control over the litigation procedure. It further assures that awards are
enforceable and creates a sense of legitimacy
Raison D'être For Settling Investment Disputes
The Settlement of disputes between host states and foreign investors is a particularly important aspect of the
legal protection of foreign investments. In the absence of other arrangements, a dispute between a host state and
a foreign investor will normally be settled by the host state’s domestic courts. From the investor’s perspective,
this is not an attractive option. Rightly or wrongly, the courts of the host state are not seen as sufficiently
impartial in this type of situation. In addition, domestic courts are usually bound to apply domestic law even if
that law should fail to protect the investor’s rights under international law. In addition, the regular courts will
often lack the technical expertise required to resolve complex international investment disputes.
Domestic courts of other states are usually not a realistic alternative. In most cases, they lack jurisdiction over
investment operations taking place in another country. In addition, sovereign immunity or other judicial
doctrines will often make such proceedings impossible.
Diplomatic protection was a frequently used method to settle investment disputes. It requires the espousal of the
investor’s claim by his or her home state and the pursuit of this claim against the host state. This may be done
through negotiations or through litigation between the two states before an international court or arbitral tribunal.
But diplomatic protection too has several disadvantages. The investor must have exhausted all local remedies in
the host country. Moreover, diplomatic protection is discretionary and the investor has no right to it. Also,
diplomatic protection is unpopular with states against which it is exercised and may lead to tensions in
international relations. Not surprisingly, developing countries do not like being leaned upon by powerful
industrialised nations. Therefore this method carries political disadvantages for the investor and for both states. It
may cause diplomatic friction between the states concerned and cast a shadow over their relations.
Content and Trend of ISA
As is understood, “Investor-state arbitration is a provision in international trade treaties and international
investment agreements that grants investors the right to initiate arbitration proceedings against foreign
governments in their own right under international law.”2
Therefore, the presence of arbitration clause in the
investment agreements provide a sort of rather quick and efficient mechanism of dispute resolution. There is
more often a pre-existing agreement to arbitrate which flows from the parties own willingness, and which exists
due to parties’ accession3
to investment treaty in general. However, the lack of pre-existing agreement to
arbitrate does not mean that arbitration cannot happen. Parties may choose to rely on arbitration any time,
1
Countries concluding IIAs commit themselves to adhere to specific standards on the treatment of foreign investments
within their territory. IIAs further define procedures for the resolution of disputes should these commitments not be met. The
most common types of IIAs are Bilateral Investment Treaties (BITs) and Preferential Trade and Investment Agreements
(PTIAs). International Taxation Agreements and Double Taxation Treaties (DTTs) are also considered as IIAs, as taxation
commonly has an important impact on foreign investment. See generally, UNCTAD Series on Issues in International
Investment Agreements, IIA Issues Paper Series, United Nations Publication Document (United Nations), October 2008
2
Rudolf Dolzer, Christoph Schreuer, Principles of international investment law, Oxford University Press, 2008, 122.
3
"Ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State
establishes on the international plane its consent to be bound by a treaty, Article 2 of Vienna Convention on the Law of
Treaties, 1969.
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provided the parties have given their free consent.
One of the reasons behind ISA is that the investors cannot afford to take recourse to the traditional litigation
because the national court system of host state, as has been experienced widely, can be overly delayed, costly,
and most importantly, ineffective in rendering harmonious justice to the parties concerned1
. This is also
desirable on the part of host state to see the dispute getting resolved quickly, for the simple reason, that a long
trial in the court can ill-impact the national economy.
Another aspect in ISA is the nationality issue which is very important part of the investment arbitration. The
investor’s nationality determines from which treaties it may benefit. If the investor wishes to rely on a BIT
(Bilateral Investment Treaty) it must show that it has the nationality of one of the two States parties. If the
investor wishes to rely on a regional treaty, such as NAFTA (North America Free Trade Agreement)2
or the
ECT (Energy Charter Treaty)3
or SAFTA (South Asia Free Trade Agreement), it must show that it has the
nationality of one of the States parties to the treaty. If the investor wishes to rely on the ICSID Convention4
it
must show that it has the nationality of a State party to the ICSID Convention. In addition, it must show that it
does not have the nationality of the host State.
The growing significance of ISA can be understood from the fact since the late 1990’s the number of
investor-state disputes has increased sharply: In 1997, 19 known cases were brought against states. By 2007,
there were over 250 known cases, and more than 450 by the end of 2012.5
Some of them are enormous in terms
of the amounts at stake and potential impact on the parties to the dispute. Others are just large. In the history of
ICSID, the lowest awarded amount ever was US$ 460,000 in Asian Agricultural Products Ltd. v. Sri Lanka6
,
and the highest – US$ 1,769,625,000 in Occidental v. Ecuador7
, As of 30 June 2012, ICSID’s registered cases
were distributed across the economic sectors as follows: oil, gas, and mining (25%), electricity and other energy
(13%), other industries (12%), transportation (11%), construction (7%), financial (7%), information and
communication (6%), water, sanitation, and food protection (6%), agriculture, fishing, and forestry (5%),
services and trade (4%), and tourism (4%).8
The data above shows that investor-state disputes are burgeoning
at a quick scale in a range of economic areas.
Commercial Arbitration and Investment Arbitration
In the realm of international arbitration of disputes, two terms are frequently used, namely, commercial
arbitration and investment arbitration. Both are sometimes interchangeably used, but they do not carry the
same meaning. Commercial arbitration has, of course, a tradition of many centuries, both at the domestic, but
also at the international level. Investment arbitrations have also existed to some extent for quite some time as we
know from older cases. But it became a widely used general field of international dispute settlement only when
1
Delays in justice are rampant in almost all the countries of the world. This is considered, inter alia, the main rational behind
the modern evolution of Alternative Dispute Resolution mechanisms like arbitration. See generally, Gary B Born,
International Commercial Arbitration, Vol. 1, 2009, Kluwer Law International, 50-55.
2
North American Free Trade Agreement
3
The Energy Charter Treaty (ECT) is an international agreement which establishes a multilateral framework for cross-border
co-operations in the energy industry. The treaty covers all aspects of commercial energy activities including trade, transit,
investments and energy efficiency. The treaty is legally binding, including dispute resolution procedures.
4
ICSID is an autonomous international institution established under the International Convention on the Settlement of
Investment Disputes between States and Nationals of Other States with over one hundred and forty member States. The
ICSID is a member of the World Bank Group and is headquartered in Washington, D.C., United States. It was established in
1966 as a multilateral specialized dispute resolution institution to encourage international flow of investment and mitigate
non-commercial risks. Although the ICSID is a member of the World Bank Group and receives its funding from the World
Bank, it was established as an autonomous institution by a separate treaty drafted by the International Bank for
Reconstruction and Development's. For in-depth understanding of the working and functions of ICSID visit
https://icsid.worldbank.org/ICSID/FrontServlet (Last accessed April 3, 2013); Also see, Christoph H. Schreuer, Loretta
Malintoppi, August Reinisch and Anthony Sinclair, The ICSID Convention- A Commentary, 2nd Edn., Cambridge University
Press, 2009
5
See the Report containing the latest development in Investor-State Dispute Settlement available at the website of UNCTAD
http://unctad.org/en/PublicationsLibrary/webdiaeia2012d10_en.pdf (Last accessed April 4, 2013)
6
ICSID Case No. ARB/87/3, Award of June 27, 1990, available at
https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC676_En&caseId=C
140 (Last accessed April 5, 2013)
7
ICSID Case No. ARB/06/11, Award of October 5, 2012, available at
https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC810_En&caseId=C
80 (Last accessed April 5, 2013)
8
Supra note 8
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the first bilateral investment treaties (BITs) were concluded starting in 1958 and when the World Bank initiated
the ICSID-Convention in 1966.1
Back in the early days there were just few cases of ISA, but the amount and
volume of ISA cases have grown manifold. Investment arbitration is by now chosen as the dispute settlement
mechanism in thousands of treaties and investment contracts and leads to hundreds of cases per year in practice
between states and foreign enterprises.
Further, Commercial arbitration has close parallels to litigation.2
Cases arise when the parties to a dispute have
a pre-existing agreement, often enshrined in the contract giving rise to the dispute, to settle any difficulties by
arbitration rather than litigation. The parties to commercial arbitration are mostly private companies and, to a
lesser extent, state-owned enterprises.
Investment treaty arbitrations on the other hand arise out of one of the various existing investment treaties. Many
of this second category of disputes, however, arise out of Bilateral Investment Treaties (BITs),3
under which
pairs of countries have agreed to reciprocal obligations toward investors from each other’s jurisdictions. There
are as many as 3,000 such treaties in existence.4
Further the term ‘investor’ may be taken to mean all kinds of
private enterprises which have invested in different sectors of the host state. There can be investment made by a
public agency of one country in another country. So state-owned corporations can also be involved in ISA.
3. INVESTOR-STATE ARBITRATION: GROWING CRITICISM
The initial euphoria about ISA has in the recent years subsided substantially. This is mainly because of the
evident shortcomings and problems which have now come to characterise the ISA mechanism. To put it mildly,
in the words of Professor Christopher Schreuer: “the initial enthusiasm has given way to a more sober
assessment.”5
Increasingly, states and investors express concerns regarding the costs associated with the arbitration process.
Some states are refusing to comply with arbitral awards. Other states hesitate to sign new bilateral investment
treaties, or even rescind from old ones. Related issues attract the attention of the public.
Again, in recent years the burgeoning growth in investment arbitration has not gone wholly unopposed with
heavy criticisms coming from NGOs, media, and certain governments. Arbitral tribunals are accused of being
‘shadow governments’ dispensing ‘justice behind closed doors’6
The perceived lack of transparency and
spiralling costs of investment treaty arbitration, coupled with the admittedly small pool of specialists from which
the arbitrators are drawn and the alleged opportunism of investors,7
have led to a so-called backlash. This
‘backlash’ has only been exacerbated as the number of investment arbitrations has grown, sometimes resulting in
the ‘the parallel existence of arbitral tribunals.8
Parallel tribunals can give rise to awards with inconsistent
conclusions, and which may even be scandalously contradictory’.
Apart from issue of lack of lack of transparency, other notable shortcomings also feature prominently in the ISA
1
Id.
2
See, Karl Heinz, Commercial and Investment Arbitration: How Different Are They Today? – The Lalive Lecture 2012,
Arbitration International, Vol. 28, Issue 4, (2012) 577-590
3
They can arise out of bilateral investment treaty (BIT), which is an agreement establishing the terms and conditions for
private investment by nationals and companies of one state in another state. This type of investment is called foreign direct
investment (FDI). BITs are established through trade pacts. See, Jarrod Wong, "Umbrella Clauses In Bilateral Investment
Treaties: Of Breaches of Contract, Treaty Violations, and the Divide Between Developing and Developed Countries In
Foreign Investment Disputes", 14 George Mason Law Review (2007) 135.
4
Quantitative Data regarding existing investment treaties can be accessed at UNCTAD website,
http://unctad.org/en/Pages/DIAE/International%20Investment%20Agreements%20%28IIA%29/Quantitative-data-on-bilatera
l-investment-treaties-and-double-taxation-treaties.aspx (Last accessed on April 10, 2013).
5
Christopher Schreuer, The Future of Investment Arbitration, Available at
http://www.univie.ac.at/intlaw/pdf/98_futureinvestmentarbitr.pdf (Last accessed April 10, 2013)
6
Gabrielle Kaufmann-Kohler, In Search of Transparency and Consistency: ICSID Reform Proposal, I, Paper delivered at
Investment Treaty Workshop held September 27, 2005 at IBA Annual Conference in Prague; published in 2 Transnational
Dispute Management (November 2005)
7
At least 39 arbitrations were brought against Argentina relating to its financial meltdown at the turn of the millennium. It
remains to be seen how many new claims may arise out of the current economic meltdown or presently out of the Eurozone
crisis, which has forced many governments to intervene in matters of investment.
8
Investor-to-State arbitrations offer examples of Parallel Proceedings in which the responsibility of the State may be at stake
with regard to the same facts, including the same state measures. The proliferation of bilateral investment treaties has
increased the complexity of the different methods of dispute resolution in the international arena, including the number of
forums in which individuals and private corporations may claim the responsibility of host States.
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landscape. An important source of these shortcomings is the special nature of international investment arbitration,
involving a sovereign as a defendant and challenging acts and measures taken by a sovereign State. The
international arbitration procedure also differs from litigation in domestic courts in that the dispute is governed
by international law and based on the violation of an international treaty, where arbitration is the main option
made available to investors. Another peculiarity is that the nature of the relationship between the investor and the
State involves a long-term engagement; hence a dispute resolved by international arbitration and resulting in an
award of damages will generally lead to a severance of this link.
Moreover, the financial amounts at stake in investor–State disputes are often very high. Resulting from these
unique attributes, the disadvantages of international investment arbitration are found to be the large costs
involved, the increase in the time frame for claims to be settled, the fears about frivolous and vexatious claims,
the general concerns about the legitimacy of the system of investment arbitration as it affects measures of a
sovereign State, and the fact that arbitration is focused entirely on the payment of compensation and not on
maintaining a working relationship between the parties.1
4. THE WAY OUT
Following such problems with ISA, the need to explore and emphasize more consensual forms of alternative
dispute resolution assumes a great significance. In this connection, ‘other’ more consensual forms of ADR like
conciliation and mediation2
can provide effective answers to the ills inherent within the investor-state arbitral
process. These ‘other forms’ are primarily interests-based in contrast to the rights-based arbitral process. It
focuses on facilitating the parties’ communication, negotiation and decision-making unlike arbitration which is
focused on enabling the arbitrator’s decision-making. Through facilitated dialogue and negotiation, there is a
greater chance of harmonious resolution of the given investor-state disputes. Further, these ‘other forms’ being
flexible, cheap, timely and less formal can potentially be more effective in addressing a wide array of
investor-state disputes. Again, these can be used in substantial pre-arbitration work which can further ensure the
quick establishment of communication between the disputants, which in turn can lead to substantial narrowing
down of issues, thus helping the disputants in arriving at negotiated settlement of disputes. In any case, these
‘other forms’ can provide an excellent platform for carving out creative and harmonious solutions, to the
advantage of both, foreign investor and host state.
Thus ISA mechanism needs comprehensive solutions for the problems which have typically characterised it in
recent years. The set of solutions are set forth below:
(i) Methods of alternative dispute resolution (ADR) that seek to resolve existing disputes through negotiation
or amicable settlement such as international conciliation or mediation should be first explored and given much
emphasis.
(ii) Dispute prevention policies (DPPs)3
that attempt to prevent conflicts between investors and states from
emerging and escalating into formal investment disputes, for example by establishing inter-institutional alert
mechanisms within States or encouraging information sharing among government entities. The advantages of
these alternative approaches are the flexibility offered by these approaches, including the possibility to find
amicable grounds for settlement between investors and states, permitting the parties to continue a working
relationship. The settlement process is also faster and less costly. ADR can be without prejudice to the right of
the parties to resort to other forms of dispute resolution.
(iii) Existing international rules on dispute resolution, most notably the conciliation rules of the International
Centre for the Settlement of Investment Disputes (ICSID), the United Nations Commission on International
Trade Law (UNCITRAL)4
and the International Chamber of Commerce (ICC)1
, provide guidance on the use of
1
Emphasis just on compensation to the aggrieved party or to the party whose rights have been vindicated by the arbitral
award- does not guarantee re-start of the same level of trustworthy relationship. This scenario is more or less akin to the
adjudicatory process which establishes right and wrong. In the arbitration of investor-state disputes, thus there is every
likelihood of continued lack of harmony post arbitral award.
2
For the sake of this paper, the subtle difference between conciliation and mediation is ignored. In any case both are
interest-based dispute resolution mechanisms.
3
Roberto Echandi, Towards a New Approach to Address Investor-State Conflict: Developing a Conceptual Framework for
Dispute Prevention, NCCR Working Paper No 2011/46, August 2011, Swiss National Centre for Competence in Research,
also available at http://www.wti.org/fileadmin/user_upload/nccr-trade.ch/wp2/publications/wp%202011%2046_Echandi.pdf
(Last accessed April 15, 2013)
4
Adopted by UNCITRAL on 23 July 1980, the UNCITRAL Conciliation Rules provide a comprehensive set of procedural
rules upon which parties may agree for the conduct of conciliation proceedings arising out of their commercial relationship.
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of ADR techniques. ICSID also maintains a set of fact-finding rules and the ICC published a set of rules
detailing the establishment and function of “dispute boards”.2
Other institutions beyond the aforementioned
three also provide their own set of conciliation or mediation rules, and hence procedural guidance on the use of
ADR techniques is available for the parties involved in investment disputes. Many of these dispute resolution
institutions further offer necessary logistical and organizational support, for example by making a venue and
facilities available to disputing parties for the purpose of undertaking the conciliation or mediation process.
Despite this assistance, research today suggests that rules on ADR have been rarely used in investor–state
dispute resolution, 3
and hence more specific encouragement in ISAs towards considering the use of these rules
may be an important way forward.
(iv) The sharing of information among government agencies on issues related to foreign investment in a
well-structured and organized way can assure that the right government agencies are alerted at an early stage
about possible problems faced by investors and allow for a timely response. Information sharing will generally
increase awareness among government agencies and various levels of government (e.g. at the regional or
municipal level) of relevant issues in international investment law.
(v) Governments can target specific sensitive sectors where disputes could arise, and monitor foreign activities
in this sector more closely, addressing possibly emerging problems at an early stage.
(vi) States can provide the option of an administrative review of a measure deemed unsatisfactory by investors.
The possibility of such a review can foster much needed confidence and trust in the host state’s institutions.
(vii) The establishment of adequate inter-institutional arrangements among government agencies can allow
states to address emerging investment disputes more effectively. Such inter-institutional mechanisms may involve
the establishment of a lead agency responsible for dealing with investment disputes, with the right to obtain
information from other government agencies and the authority to resolve a dispute through preferred means of
settlement.
(viii) Specific public officials can be empowered with the authority to engage with investors, embark on
negotiations or pursue amicable settlement.
(ix) Among government agencies, timely sharing of information and documents related to an investment dispute
should be assured, even at a short notice.
(x) An ombudsman or “ombuds” office can function as an institutional interlocutor within the host country
which investors can approach to have their grievances heard and addressed.
(xi) State–State cooperation on dispute prevention could be enhanced.
(xii) Attempts can be made to continue negotiating even while an arbitration procedure is already on-going.
Overall, ADR and DPPs can offer promising alternatives to the settlement of investment disputes through
international arbitration, and hence states, investors, legal practitioners, arbitration institutions and
international organizations should be encouraged to give these methods further consideration in the context of
investment disputes emerging in the future.
5. CONCLUDING REMARKS
While resort to arbitration is the predominant approach in ISAs as the name itself suggests, alternative
approaches have at times also been incorporated in them. But such incorporation of rules as a part and parcel of
The Rules cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is
deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and role of
conciliators and the general conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of
evidence in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings whilst the
conciliation is in progress. See generally, Issak I Dore, Arbitration and Conciliation under the UNCITRAL Rules: A Textual
Analysis, Martinus Nijhoff Publishers, 1986.
1
ICC based in Paris offers a range of dispute resolution services to help solve difficulties in international business.
2
A dispute board or dispute review board (DRB) or dispute adjudication board (DAB) is a 'job-site' dispute adjudication
process, typically comprising three independent and impartial persons selected by the contracting parties. The significant
difference between Dispute Review Boards and most other Alternate Dispute Review techniques (and possibly the reason
why or Dispute Review Boards have had such success in recent years) is that the Dispute Review Board is appointed at the
commencement of a project before any disputes arise and, by undertaking regular visits to the site, is actively involved
throughout the project (and possibly any agreed period thereafter). See generally, Cyril Chern, Chern on Dispute Boards, 2nd
Edn., Wiley Blackwell, 2011
3
Supra note 22
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institutional mechanism of ISA is still conspicuous by its absence. As a positive side-effect of the criticism
against investment arbitration, investors and states as well as some international organizations such as
UNCTAD1
, ICSID2
or IBA 3
, are advocating for the increased use of conciliation or mediation to supplement
investor-State arbitration. This change is significant. However, only time will tell whether the push for
alternative non-adversarial, interest-based modes of ADR is adequately done or not. Again, the current
mechanism for addressing investor-state disputes need not be substituted with a whole new dispute resolution
system. However, as this paper has strongly advocated, there is a widely felt need, among the various
stakeholders, for the increased use of interest-based consensual forms of ADR within the overall mechanism of
ISA which should be further combined with Dispute Prevention Policy (DPP) and other amicable institutional
means. The Mantra must be to preserve the interests of both the investors and states.
1
Supra note 8
2
Supra note 7
3
The most recent development came in October 2012 when the International Bar Association (IBA) adopted new Rules for
Investor State Mediation (the Rules). The Rules have been drafted by the IBA Subcommittee on State Mediation. The rules
were prepared against the background of a significant increase in investor-state disputes arising from international investment
agreements. See the IBA Rules for Investor-State Mediation, available at
http://www.ibanet.org/LPD/Dispute_Resolution_Section/Mediation/State_Mediation/Default.aspx (Last accessed April 18,
2013)