International Investment Dispute Settlement Research Articles

Improvements to the system of host country regulatory authority in the Investor-State Dispute Settlement (ISDS) Mechanism

As the ISDS mechanism has been widely applied, its shortcomings have been gradually magnified, and the host country's right to regulate has been constantly challenged by foreign investors in international investment dispute settlement, and the sovereignty and public interests of the host country have been undermined as a result. This paper examines the existing problems of the host country's right to regulate, and analyses in depth the motivation for strengthening the host country's right to regulate in the context of the reform of the ISDS mechanism, taking into account past cases and practical experience. At the same time, by comparing and analysing the relevant theories of domestic and foreign scholars on the ISDS mechanism, the paper highlights the necessity of strengthening the host country's right to regulate in order to maintain a balance between the interests of both the host country and the investors, and proposes a feasible and practicable reform plan in this regard.

Penyelesaian Sengketa Investasi Asing Melalui Mekanisme Arbitrase Internasional (Studi Kasus: Rafat Ali Rizvi Melawan Republik Indonesia)

One of the goals of the state is to create fair and prosperous society by carrying out development in various fields including the fields of economy, education and infrastructure. The country's development certainly requires large amounts of funds, but not all countries have these funds. The lack of funds which needed by the state is an entry point for investors to invest their capital, which is through foreign investment. Besides the investment, foreign investment also brings expertise, technology transfer, and can increase the productivity of the host country. However, the implementation of foreign investment do not always go well, investment problems will arise and in the end it can become foreign investment dispute. Investment dispute settlement is an important part of foreign investment in Indonesia and that is the form of protection for foreign investors. Investment disputes settlement in Indonesia begins with deliberation and consensus. If the deliberation and consensus not achieved, then the parties can take investment dispute settlement through international arbitration. The most common international investment dispute settlement mechanism is Investor-State Dispute Settlement (ISDS). Beside that, there is State-State Dispute Settlement (SSDS) mechanism. Submission of international investment disputes can be submitted to international arbitration forums, through International Centre for Investment Dispute (ICSID). One of the cases of foreign investment disputes that involved Indonesia is between Rafat Ali Rizvi and Republic of Indonesia.

Application of Mediation Mechanism in International Investment Dispute Settlement

Transnational trade not only brings economic development but also produces many international investment disputes. As a result, many dispute settlement methods have emerged. The international investment dispute settlement Institution has gradually developed into a permanent institution for dispute settlement, with arbitration as the main means. However, the arbitration process has exposed many drawbacks since its development for a long time. Although mediation was relatively mature in other countries, its value was not appreciated until the end of the 20th century. As more and more international voices have pointed out the disadvantages of international investment arbitration, which not only increases economic losses but also takes a long time, the International Center for Settlement of Investment (hereinafter referred to as ICSID) is also making continuous reforms and adopted a new amendment on July 1, 2022, emphasizing the method of mediation mechanism. The current mediation system in international investment has gradually moved from theory to practice, so it is necessary to conduct further research on the development and future construction of mediation mechanisms. Literature research and comparative research are used in this paper to analyze. Since mediation and ADR mechanism have been introduced into the dispute settlement mechanism, the analysis of the mediation system puts forward suggestions on the current development dilemma and future construction of the mediation mechanism.

Investment Facilitation for Development and the Reform of International Investment Dispute Settlement Mechanism: The Choice of Developing Countries

ABSTRACT The trend of ‘investment facilitation’ is increasingly attracting lively discussions in the field of international investment policies. The reason for this is that countries expect to use ‘investment facilitation’ as a policy tool to improve the domestic investment environment. In this trend, as an important part of the realization path of ‘investment facilitation’, there is an increasing concern on how to reform the international investment dispute settlement mechanism to achieve amicable settlement of investment frictions between investors and host states. China, Brazil and South Africa have proposed three different options for reforming the international investment dispute settlement mechanism under the trend of ‘investment facilitation’. Based on the analysis of the three countries’ dispute settlement mechanism reform models, this article examines their impact on the international investment governance mechanism and finally proposes inspirations for the design and reform of future international investment dispute settlement models in developing countries.

THE APPLICATION OF MEDIATION INTO ISDS: FROM THE PERSPECTIVE OF CHINA

A crucial change in the recent reform of international investment agreements and investment laws is the introduction of mediation into ISDS de novo. It is found that mediation in the international investment dispute settlement mechanism has preliminary treaty basis and has unique practical value and good application space. Under the background of the increasing acceptance of the Singapore Convention on Mediation, the foundation has been laid for the reconstruction and development of the international investment mediation mechanism. Facing the development trend of the application of investor-state dispute settlement mechanism, China should create external conditions, accelerate internal supporting, improve the practical basis, increase the treaty norms and participate in multilateral reform.

Research on the Host Country's Regulatory Power in the Situation of the Novel Coronavirus Pneumonia Outbreak

<p>In the process of combating the Newcastle pneumonia epidemic, shutdown measures taken by countries may harm the legitimate interests of foreign investors, and when foreign investors use the international investment dispute settlement (ISDS) mechanism to arbitrate with the host country, the purpose of international investment agreements (IIAs), which tends to protect the interests of investors, tends to be constantly expanded and used to the neglect of the host country's regulatory power. This is due both to the lack of clarity of certain provisions and to the inherent flaws of the ISDS mechanism. China should actively study the new changes in international investment rules, so that China can more favorably balance the interests of investors and host countries in the process of negotiating international investment agreements, and effectively safeguard the right of national regulation.</p>

Reform Trend of Investor-State Dispute Settlement in International Investment

The reform of Investor-State Dispute Settlement (hereafter "ISDS") is a bellwether for the reform of the international investment dispute settlement mechanism, this paper about the ISDS mechanism reform finds the root cause of ISDS mechanism reform comes from the national sovereignty and the interests of the investors under the conflict of "crisis of legitimacy” Based on the" legitimacy" crisis, the ISDS mechanism has many problems. In this context, countries have started to reform the ISDS mechanism in order to solve the corresponding problems. These reform measures have three typical trends, Facing the three trends of ISDS mechanism reform, Chinese scholars put forward countermeasures from various angles, but fundamentally China should recognize its own position in international investment, be realistic and adopt a flexible way to deal with ISDS mechanism reform, and try best to contribute to ISDS mechanism reform.

INVESTMENT DISPUTE SETTLEMENT MECHANISM UNDER THE IMPLEMENTATION OF CHINESE FOREIGN INVESTMENT LAW

With the formal implementation of the Foreign Investment Law, a multi-level dispute settlement mechanism targeted at disputes has been formed. Under the background of the implementation of the foreign investment law, diversified investment dispute settlement is forming and will go through innovation, especially under the background of open-up investment dispute settlement mechanism. Multi-level investment disputes relate to both domestic and international level, “wall” function for international investment dispute settlement mechanism may realize through the principle of exhaustion of local remedies.

ВОПРОС О СИСТЕМЕ РАЗРЕШЕНИЯ СПОРОВ В НОВЫХ ИНВЕСТИЦИОННЫХ СОГЛАШЕНИЯХ ЕВРОПЕЙСКОГО СОЮЗА

The system of resolving international investment disputes has been subjected to intense criticism from the professional and lay public in recent decades. The lack of transparency, predictability, coherence of arbitration awards and legitimacy of the investment arbitration system has led to an increase in efforts to reform the existing system. The European Union is not only one of the most vocal critics of the current system, but also one of its most active reformers. Since the entry into force of the Lisbon Treaty in 2009, the European Union has acquired exclusive competence in the realm of foreign direct investment as part of the common commercial policy. From that moment on, the European Commission began negotiating free trade agreements, many of which also include investment chapters. The most important ones are the Comprehensive Economic and Trade Agreement concluded between the European Union and Canada (2016), Agreement on Investment between the European Union and Singapore (2018), Agreement on Investment between the European Union and Vietnam (2019), as well as the Comprehensive Agreement on Investment between the European Union and People’s Republic of China, which has been agreed in principle at the end of 2020, even though the agreement has not yet been formally signed. In these treaties the European Union seeks to push for reform steps leading to the adjustment of the system for resolving international investment disputes in that they introduce a new system of investment courts that will gradually lead to the establishment of the multilateral investment court with the option of appeal at an appellate instance. This would undoubtedly increase the credibility, legitimacy and transparency of the entire system of internatnional investment dispute settlement. This paper aims to summarize, on the basis of an analysis of the relevant provisions of the trade and investment agreements concluded by the European Union over the last decade, the practical progress made by the European Union in reforming the international investment dispute settlement system. Since none of these treaties has become fully effective yet due to the lacking ratification of all EU member states, it will take several more years before we see full practical implementation of the discussed provisions.

INTERNATIONAL INVESTMENT LAW AND THE RIGHT TO HEALTH

This article reflects on the hurdles of the right to health within international investment dispute settlement. Its main purpose is to analyze the way in which both, the right to health and property rights should fit there. In doing so, relevant jurisprudence, normative and pragmatic arguments are provided. Some of the measures and strategies proposed so far to foster cohabitation between both branches of international law are challenged in an attempt to demonstrate that none of them will effectively contribute to better protect the right to health. Likewise, it offers less explored solutions, such as engaging the World Health Organization and the International Court of Justice, and a shift in the onus of proof through the application of the Precautionary Principle.

Dual Hats and Arbitrator Diversity: Goals in Tension

This essay outlines a quandary facing international investment dispute settlement (IIDS): the tension between the wish to curb “dual hatting” and the wish to increase the diversity of those appointed as arbitrators in IIDS cases. Thoughtful observers are concerned by the effect on IIDS, either in fact or as a matter of appearance, of lawyers who wear “dual hats”—one as arbitrator in IIDS cases, and a second as counsel representing clients in other IIDS matters. Concurrently, other thoughtful observers are concerned that appointments to IIDS predominantly go to a small cadre of established arbitrators caricatured as “pale, male and stale.” This concern has prompted efforts to increase the pool of female and minority arbitrators. However, these individuals would be drawn primarily from the ranks of younger practicing lawyers who must continue to practice unless and until they receive sufficient appointments to make full-time service as arbitrators economically feasible.

Dual Hats and Arbitrator Diversity: Goals in Tension

I want to raise a quandary facing international investment dispute settlement: the tension between the wish to curb “dual hatting” and the wish to increase the diversity of persons appointed as arbitrators.

The Influence of MFN Clause on International Investment Dispute Settlement Procedure to Investor's Home Country

The purpose of the MFN clause in the International Investment Treaty is to promote the interests of the parties, not to derogate from their interests. From the perspective of the investor's home country, the MFN clause to expand the international arbitration practice applicable to the international investment dispute settlement procedure has the advantages and disadvantages of the investor's home country, and the overall situation is more harm than good. Which will seriously affects the investor's home country's own understanding of the obligations under the investment treaty, and thus inevitably affect the investor's home country on their own contract in the international law of the legitimacy of the judgments and expectations.

The Reform of Investment Protection Rules in CETA, TTIP and Other Recent EU-FTAs: Convincing?

This paper explores the systemic problems that plague provision-dependent investment protection reforms in CETA, TTIP, and other recent EU-FTAs. The authors suggest that the current international investment system’s asymmetrical structure precludes effective reforms because reforms that “level the playing field” between state and investor run counter to the logic of a system designed with the purpose of protecting investors and investments, not states. The authors suggest that a new symmetrical international investment dispute settlement structure may provide a more convincing answer to calls for reform. After beginning with a background on the necessity of and problems with “vagueness” in law (both generally and in the international investment system), the chapter analyzes the most prominent reforms and reform proposals in the current international investment landscape. The chapter elucidates several of the structural problems that plague these current reform proposals and demonstrates that a symmetrical approach could alleviate these problems.

Investment Arbitration Appellate Mechanism Options: Consistency, Accuracy, and Balance of Power

For policymakers exploring appellate mechanism options for the international investment law regime, the competing interests of efficiency and finality will receive due consideration. But two additional — and possibly overlooked — risks also merit close analysis.First, gains in the consistency of treaty interpretation by a standing, permanent appellate body would not guarantee corresponding gains in the accuracy of treaty interpretation. As illustrated by two lines of case law applying denial of benefits provisions under a number of investment treaties, consistent treaty interpretation does not ensure accurate treaty interpretation. Second, a shift from an ad hoc to a more institutionalized international investment dispute settlement regime would significantly impact the balance of power between States and adjudicators. In general terms, standing, permanent tribunals are associated with greater levels of independence than ad hoc tribunals. The experience of the WTO Appellate Body illustrates how standing, permanent tribunals can develop as institutions through bold acts of independence. Greater levels of tribunal independence give rise to a greater need for control mechanisms to address the risk of tribunals exceeding their mandate. That risk is heightened in the context of the international investment arbitration, where, even under the current ad hoc regime, the level of tribunal independence is significant. Legitimate policy arguments — based on goals of achieving greater consistency, coherence, and predictability — can be made in favor of the development of one or more appellate mechanisms within the international investment law regime. But policymakers exploring appellate mechanism options should give careful consideration to all competing policy interests, which are not limited to the goals of efficiency and finality. The two additional risks analyzed in this article — the gap between consistent and accurate treaty interpretation, and the balance of power consequences of greater institutionalization — should be part of the policy discussion. That policy discussion also should include consideration of control mechanism options to address such risks.

Investor-State Mediation in International Investment Dispute Settlement a Critical, Integral Multi- and Transdisciplinary Analysis: Analysis & Development of Policy Implications and Practical Guidelines, with a Particular Focus on De-Biasing the Mediation Process

Investor-State Mediation in International Investment Dispute Settlement a Critical, Integral Multi- and Transdisciplinary Analysis: Analysis & Development of Policy Implications and Practical Guidelines, with a Particular Focus on De-Biasing the Mediation Process

Privileging Domestic Remedies in International Investment Dispute Settlement

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International Investment Dispute Settlement in the 21st Century: Does the Preservation of the Public Interest Require an Alternative to the Arbitral Model?

This paper aims at taking stock of the criticism directed at the mechanism of international arbitration for settling disputes between international investors and host states. This paper also analyzes and describes the main attempts at reforming the arbitral model in response to those criticisms, notably in terms of transparency and participation. It finally briefly presents and evaluates proposals for plain alternatives to the arbitral model in investment dispute settlement, and assesses those proposals in legal and policy terms. The paper closes with a few remarks on the real potential of the arbitral model in investment disputes, and insists on the need to further reform it so that it can serenely and credibly play its role of impartial dispute settlement mechanism in cases often involving high doses of public interest. The paper notably makes a case for the fostering of a peaceful and practical co-existence between arbitral tribunals and domestic courts.