ICSID Review Roundup: New Double Issue (Volume 35, Issue 1-2)
A new double issue of the ICSID Review – Foreign Investment Law Journal is fresh off the printing press—and available online. With contributions from renowned and up-and-coming scholars and practitioners, the double issue brings together over 400 pages of articles, notes, case comments, book reviews and lectures.
Here is what readers will find in ICSID Review Volume 35, Issue 1-2.
“It was the best of times, it was the worst of times”. That line from Charles Dickens’ A Tale of Two Cities sums up of the current state of investor-State dispute settlement (ISDS), posits Teresa Cheng in her lecture The Search for Order within Chaos in the Evolution of ISDS, first delivered at CIArb's 45th Alexander Lecture. The author points to the “international community’s high level of attention to the subject [of ISDS]”, as well as empirical data that reveals an “upward trend in the number of ISDS cases”. At the same time, “ISDS is currently facing a challenge to its legitimacy” from a number of corners, including civil society and the media. Against that backdrop, Ms. Cheng charts a path forward for ISDS that favors “evolution, not revolution.”
Case comments have long been one of the more popular features of the ICSID Review. Each issue analyzes recent decisions and awards, placing them within the broader context of investment arbitration caselaw.
Kicking off the first half of the double issue, Debadatta Bose examines David Aven v Costa Rica, tracing its line of jurisprudence back to Urbaser v Argentina and highlighting two key legal issues from the case: admissibility of counterclaims by way of investor obligations and investor environmental obligations.
Eric De Brabandere takes stock of a decision on a proposal to disqualify an arbitrator—one that was ultimately unsuccessful—in Mathias Kruck and others v Spain. It is one of a number of proposals for the disqualification of arbitrators in the Spanish solar power cases in recent years.
Barton Legum and Marie-Hélène Ludwig analyze the partial award upholding the Tribunal’s jurisdiction in B-Mex and others v Mexico, as well as the dissenting opinion. As the authors explain, the award and dissenting opinion illustrate different readings of two key NAFTA provisions: Article 1119 (notice of intent to submit a claim to arbitration) and Article 1121 (conditions precedent to submission of a claim to arbitration).
Chiann Bao outlines the reasons why an ad hoc Committee partially annulled the Tribunal’s award in RSM Production Corporation v Saint Lucia, and comments specifically on the potential for a ‘with prejudice’ dismissal to be used as a means to sanction non-compliance with an order for provisional measures.
In part two of the double issue, Guled Yusuf and Godwin Tan discuss the Tribunal’s reasoning in United Utilities (Tallinn) BV and Aktsiaselts Tallinna Vesi v Estonia on whether it was precluded from determining claims brought by a European Union investor against a Member State under an intra-EU bilateral investment treaty. In doing so, the Tribunal grappled with the implications of the European Court of Justice judgement concerning Slovak Republic v Achmea, which held that an investor–State arbitration clause in a BIT between EU Member States had ‘an adverse effect on the autonomy of EU law’.
Mélida Hodgson and Edelí Rivera analyze the Tribunal’s decision in UP and CD Holding Internationale v Hungary to reject an objection from Hungary that it lacked jurisdiction—a decision that also centered on the European Court of Justice’s Achmea judgement.
Finally, Ian A Laird and Rina M Gashaw turn to Besserglik v Mozambique. In this case, the Tribunal could not conclude that the Mozambique-South Africa bilateral investment treaty had entered into force, and dismissed the claimant’s claims for lack of jurisdiction as a result. As the authors explain, the decision is noteworthy because the respondent failed to raise this issue until late in the proceeding.
In The Republic of Ghana and Bilateral Investment Treaties: A Burgeoning Expert?, Gracious Avayiwoe surveys Ghana’s bilateral investment treaties, which, as the author explains, exhibit increasing levels of innovation.
Chester Brown, Mark McNeill, and Jeremy K Sharpe turn next to a much-discussed topic in 2020-21—how best to conduct a virtual hearing. Their Note, First Impressions of a Virtual Hearing at ICSID, draws from a webinar (a recording is available here) that ICSID organized in May 2020, and discusses the full range of considerations for a successful virtual hearing—from pre-hearing bundles to appropriate dress codes.
In Amicus Curiae Participation in ISDS: A Caution Against Political Intervention in Treaty Interpretation, Chen Yu discusses the rules relating to amicus curiae submissions. The author cautions that the amicus curiae participation by political actors such as home States raises potential legitimacy concerns, and calls for a careful examination of the role of States’ practice in investment treaty interpretation.
Yilin Wang’s The Fight between Interpretation and Modification: A Critique of Sanum v Laos explores the question of whether interpretation provided by States in a pending case should be taken into account by the tribunal. The author does so with reference to how adjudicative bodies struggled with the distinction between interpretation and modification in the Sanum v Laos case.
Closing out the Note category, Campbell McLachlan reflects on Equality of Parties before International Investment Tribunals: The Institute of International Law Resolution 2019. Professor Campbell, who served as rapporteur for the development of the Resolution, outlines how it might assist the progressive development of the procedure of international investment tribunals.
Loris Marotti’s article focuses on joint interpretation clauses, which give contracting States the power to issue joint interpretations that are expressly recognized as binding upon dispute settlement bodies. In The Proliferation of Joint Interpretation Clauses in New International Investment Agreements: A Mixed Blessing?, the author discusses a number of issues these clauses raise, including potential tensions between adjudicators and treaty parties sharing the interpretative authority over investment treaties.
In Investor Obligations for Human Rights, Barnali Choudhury tackles the topic of human rights and international investment law. The author argues that one way to better align the business and human rights agenda with international investment law is to introduce investor obligations for human rights in investment treaty and non-treaty sources.
Continuing on the theme of human rights and investment law, Farouk El-Hosseny and Patrick Devine focus on the concept of contributory fault in their article Contributory Fault under International Law: A Gateway for Human Rights in ISDS? The authors discuss how human rights can be addressed through the concept of contributory fault, particularly with respect to compensation.
How can host States defend economic emergency measures in investment arbitration? In Economic Crises and the Fundamental Change of Circumstances in Investment Arbitration, Orhan Bayrak posits that a fundamental change of circumstances, pursuant to art 62 of the Vienna Convention on the Law of Treaties, is one instrument that is often overlooked.
Investment treaty jurisprudence has yet to come up with comprehensive criteria for distinguishing compensable regulatory expropriation from non-compensable exercise of regulatory powers. In Non Compensable Regulation versus Regulatory Expropriation: Are Climate Change Regulations Compensable?, David Khachvani suggests that referencing the inherent limits of property rights that underlie foreign investments helps draw a line between non-compensable regulation and regulatory expropriation.
Since the European Union announced its intention to create an international investment court, a question has been whether its decisions would or could be enforced under existing frameworks for arbitration. Zareen Qayyum’s article, The Enforceability of Proposed Reforms to Investor–State Dispute Settlement, examines that question with reference to the enforcement regimes currently in place for investment and commercial arbitration.
Crina Baltag notes that interest in the role of amici curiae in investment arbitration proceedings has grown in recent times, as part of broader ISDS reform agendas. Her article—The Role of Amici Curiae in Light of Recent Developments in Investment Treaty Arbitration: Legitimizing the System?—addresses the role of amici curiae in the current ISDS context. In doing so, the author emphasizes that, before anything, the role of non-disputing parties is to assist arbitral tribunals.
In Understanding ICSID Article 54, George A Bermann underlines the importance of achieving a common understanding of the ICSID Convention’s primary provision concerning enforcement of awards. The author examines and evaluates the various positions that courts and commentators have taken on the susceptibility of ICSID awards to judicial review by national courts at the enforcement stage, assessing the strengths and weaknesses of each.
In his article, Lauren Mandell reviews the Trump Administration’s impact on US investment policy at the close of the Administration. From the withdrawal of the US from the Trans-Pacific Partnership to the renegotiation of NAFTA, Mr. Mandell concludes in The Trump Administration’s Impact on US Investment Policy that the Administration made a considerable imprint on US investment policy.
Chester Brown and Patrick Still explain that a problem occasionally faced by an arbitral tribunal is how to deal with the evidence of a non-appearing witness—a question that arbitration rules do not typically provide specific instruction on. The authors set out to provide guidance to tribunals by reviewing the available arbitral practice in The Status of the Testimony of the Non-Appearing Witness in International Arbitration.
China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy, edited by Julien Chaisse—reviewed by Tong Qi.
The Return of the Home State to Investor–State Disputes. Bringing Back Diplomatic Protection?, by Rodrigo Polanco—reviewed by Björn Arp.
Contemporary and Emerging Issues on the Law of Damages and Valuation in International Investment Arbitration, edited by Christina L Beharry—reviewed by Liliana Diaz and Natalie Quinn.
Mediation in International Commercial and Investment Disputes, by Catharine Titi and Katia Fach Gómez, and The Singapore Convention on Mediation: A Commentary, by Nadja Alexander and Shouyu Chong—both books reviewed by Gracious Timothy Dunna.
Arbitrating Brands: International Investment Treaties and Trade Marks, by Metka Potočnik—reviewed by Patricia Živković.