Settlement Of Investment Disputes Research Articles

The Construction of the RCEP Investment Dispute Settlement Mechanism: Currentcy, Dilemmas and Solutions

The signing of RCEP signifies the official launch of the world’s largest and most promising free trade area in terms of population, playing a positive role in promoting regional trade, investment, and economic growth. Currently, based on the resurgence of neo-Calvinism, legitimacy crises in ISDS mechanisms, and the absence of ISDS mechanisms in RCEP, member countries are beginning to reexamine the RCEP investment dispute settlement mechanism. Overall, the RCEP investment dispute settlement mechanism fails to effectively balance the interests of host countries and investors. Therefore, based on comparative analysis of existing investment dispute settlement mechanisms, it may be advisable to explore establishing a new ISDS mechanism for RCEP that integrates both preventive measures and back-end mechanisms.

Discourses of ISDS reform: a comparison of UNCITRAL Working Group III and ICSID processes

Abstract The reform of investor-state dispute settlement (ISDS) has been tackled by the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) Working Group (WG) III. Despite different objectives, both processes have relied on written submissions from various stakeholders. What are the structures and the narratives underlying the discourses of ISDS reform in these organizations? This article explores the content of 172 submissions by using mixed methods. It demonstrates that UNCITRAL WG III has involved less structured submissions whose content has expanded the initial mandate, with narratives encapsulating deeper disagreement among participants. By contrast, ICSID operated through a common pattern across submissions and a stronger focus on procedural issues, with less disagreement revealed in its narratives. The article proceeds in three steps. First, it compares the structure of discourses for each reform process by aggregating the content of submissions through computational analysis. Second, it relies on critical discourse analysis to reveal narratives that have emerged in each process. Lastly, the article explores submissions from actors who have participated in both processes to illustrate how they have navigated the tension between structures and narratives when reforming international investment arbitration.

Indonesia Sebagai Anggota International Centre For Settlement Of Investment Disputes

International Centre For Settlement Of Investment Disputes (ICSID) is an effort to settle investment disputes by means of arbitration. This institution aim to create a just, effective, and fair treatment towards both contracting parties which are (a) investor from another state and (b) host state. As dispute might rise within an investment contract, Indonesia believes that by joining ICSID, the investors will be given the ultimate protection of unfair treatment from Indonesia. This is due to the fact that investors are allowed to bring such dispute into the arbitration of ICSID, should a violation is being conducted. Even if the intention of Indonesia to join ICSID was made in good faith, many violations of the investor’s responsibility result in many cases of ICSID. Moreover, ICSID’s claim to solve a dispute with effective, and fair treatment towards both contracting parties are at stake, considering there are a lot of cases that require more than 10 (ten) years to be settled. Therefore, many people are expressing their concern of Indonesia’s status as one of the ICSID member. The method of this research is based on a Case Based Approach and considered as a normative legal research as it’s type in order to answer the research question regarding Indonesia’s status as an ICSID member.

Article: A Case Note on the ICSID Tribunal’s Decision in Hydro and Others v. Albania: Indirect Expropriation and Proportionality

This case note delves into the complexities of balancing state regulatory authority and investor protections in the context of indirect expropriation, as exemplified in Hydro and Others v. Albania. The commentary scrutinizes the inherent structural bias of the Tribunal, which favoured the sole effects doctrine over the police powers doctrine, thereby slanting the scale towards investor interests. This focus often leaves states defending not just the merits of their regulations but also the extent to which these regulations impact the investor, shifting the tribunal’s attention from regulatory intent to merely quantifying investor detriment. Building on the notion of managerialism, the note argues that this bias makes it challenging for the Tribunal to shift away from its initial pro-investor stance. To restore balance, the commentary advocates for a framework guided by the police powers doctrine, enriched by the principle of proportionality. The note concludes by discussing the ramifications of continued bias, including the erosion of the regime’s legitimacy, evidenced by several countries, including Albania, reconsidering or severing their affiliations with the International Centre for Settlement of Investment Dispute (ICSID), thus signaling an urgent need for recalibration to preserve the legitimacy of the international arbitration regime. Indirect Expropriation, Legitimacy Crisis in Investment Arbitration, Sole Effects Doctrine, Police Powers Doctrine, Structural Bias, Principle of Proportionality, Host State Sovereignty, Investor Protection, Balkans in International Investment Arbitration, Managerialism

The Use Of Mediation As An Alternative Dispute Resolution In The Settlement Of Investment Disputes

Investment or investment has a very important function regarding will improve the development of the state of the country's economy. This investment is an activity carried out by the business world in order to improve people's living standards. The purpose of this study is to determine how the forms of dispute resolution in domestic investment according to Law No. 25 of 2007 and how the obligations and responsibilities of investors. By using normative juridical research methods concluded: the form of domestic investment dispute resolution according to Article 32 of Law No. 25 of 2007 is through deliberation and consensus; arbitration, Alternative Dispute Resolution, courts, and especially between disputes between governments and foreign investment, disputes are resolved through international arbitration that has been agreed. According to Article 15 of Law Number 25 of 2007, the obligation of investors in Indonesia is to apply the principles of good corporate governance, carry out corporate social responsibility (corporate social responsibility)while the responsibility of investors is regulated in Article 16, namely: ensuring the availability of capital from sources that do not conflict with the provisions of laws and regulations; to bear and settle any liability for losses if the investor ceases or abandons or abandons business activities unilaterally in accordance with the provisions of applicable laws and regulations; to create a healthy competitive business and to prevent practices. Investment mediation is the right choice because mediation is the spirit of local Indonesian stakeholders in resolving disputes and currently the international community is applying it as evidenced by ICSID offering wide access to mediation with countries, State entities or REIOS related to investment.

The International Court System: A Solution to the Crisis in Investor-State Arbitration?

Most known investor-state disputes are referred to a form of international arbitration known as investor-state arbitration (ISA) or investor-state dispute settlement (ISDS). The rest are referred to domestic arbitration or litigation before the courts of host states. The International Centre for Settlement of Investment Disputes (ICSID) is the largest ISDS institution, having handled 829 out of 1190 cases by December 2021. However, in recent years the ISDS regime has faced challenges that have reached crisis proportions. States have responded to these challenges in different ways. For example, during 2014 the European Union (EU) intended to provide for ISDS in its anticipated trade agreements with the United States of America and Canada. In preparation the EU held public consultations wherein the public was invited to comment on whether ISDS could be used in these agreements. Over 90 per cent of the voters rejected the inclusion of ISDS therein. In response the EU abandoned ISDS and created a bilateral Investment Court System (ICS). The final death knell for ISDS in the EU came in 2018 and 2021 when the Court of Justice of the European Union (CJEU) ruled that ISDS among EU states is unlawful and incompatible with its legal order. This paper aims to assess the legal nature of the ICS, as well as whether the ICS can resolve the challenges that face ISDS worldwide. The paper concludes that firstly, the ICS is a hybrid of a court and a tribunal; secondly, that the ICS fails to fully address all the challenges faced by ISDS. It is a work in progress that must be interrogated further and be improved upon over time.

Digital Evidence in Disputes Involving States

The use of digital evidence increases concurrently with increased digitalization of the larger world and of justice processes. This essay aims to address the use of digital evidence in interstate disputes and other disputes involving states. It focuses on the case law of two international arbitral bodies—the Permanent Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID)—and of the International Court of Justice (ICJ). The analysis discloses three main concerns when dealing with digital evidence: authorship, authenticity, and chain of custody. We propose that courts create permanent and ad hoc digital forensic expert committees to draft guidelines and perform a preliminary admissibility evaluation of digital evidence.

Modernization and Reform of the ICSID Mechanism: Based on New ICSID Rules for 2022

The Investor-State Dispute Settlement (ISDS) mechanism plays a significant role in international investment governance. Recent years, this mechanism has faced increasing criticism and reform pressures. In order to establish procedures that are more transparent, efficient, cost-effective, and environmentally friendly, the International Centre for Settlement of Investment Disputes (ICSID) initiated a modernization reform of its rules in 2016, and the new rules came into effect on July 1, 2022. This reform marks an important milestone. This article primarily employs methods of literature review, inductive analysis, and case study analysis. This reform improves procedural efficiency, reduces costs, and enhances the transparency of arbitration proceedings. This reform has also driven the modernization of ICSID rules, furthered the deepening of ISDS mechanism reform, and had a significant impact on the practices of relevant countries and stakeholders.

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.

Basic Conditions for Application of Necessity as a Circumstance that Precludes Bringing to International Legal Responsibility

The article examines a situation of necessity as a circumstance that precludes bringing to international legal responsibility. The relevance of the article is due, on the one hand, to the growing crises in modern international relations, and on the other hand, the lack of comprehensive studies of necessity in the Ukrainian science of international law. The purpose of the article is to determine the specifics of the international legal grounds for states and international intergovernmental organizations to apply to the state of necessity, as circumstance that precludes bringing to international legal responsibility. The article uses general philosophical, general scientific, special scientific and legal methods of research, in particular: dialectical, formal-logical, analysis and synthesis, comparative-legal, and logical-legal. The article analyzes Art. 25 of the draft articles on the responsibility of states for internationally wrongful acts prepared by the UN International Law Commission and submitted to the UN General Assembly in 2001 (UNGA resolution 56/83 (A/RES/56/83) of December 12, 2001). The relevant practice of a number of international courts and arbitrations was analyzed, in particular: the International Court of Justice, the International Center for the Settlement of Investment Disputes, the International Tribunal for the Law of the Sea. The main conditions for the lawful use of necessity are identified, and a forecast of the areas of its further application is given.

Natural Resource Management: Legal and Governance Issues of Reko Diq Project

Balochistan Province of Pakistan is gifted with enormous reserves of minerals owing to its unique geological condition. One of the most important mineral resource projects is the Reko Diq mining project which is one of the largest projects of its kind globally. The Reko Diq mineral resource located in the mineral-rich Tethyan belt was discovered by the Geological Survey of Pakistan (GSP) from 1960 to 1970. The estimated reserves of Reko Diq comprise 12.3 million tons of copper and 20.9 million ounces of gold. However, the Reko Diq project became embroiled in legal disputes and controversy when the Balochistan government, represented by the Balochistan Development Authority, signed agreements with foreign investment companies for gold and copper exploration in the area of Reko Diq at Chagai. This research paper examines the establishment of the Chagai Hills Exploration Joint Venture Agreement (CHEJVA), analyzes the Supreme Court's decision on Pakistan regarding Maulana Abdul Haq Baloch's case against the government of Balochistan, and highlights the arbitration proceedings of the International Centre for Settlement of Investment Disputes. The research also concludes that an American mineral company Broken Hills Proprietary (BHP), took advantage of the unstable political situation in Balochistan under the caretaker government in 1993. The Balochistan Mineral Rules, 2002, were enacted to grant undue relaxations favoring foreign companies. These issues significantly impacted the validity of the Reko Diq agreement. Consequently, this case created an impression that foreign investments are not secure in Pakistan, necessitating actions to protect their interests. Moreover, the Reko Diq case had various economic impacts on Pakistan and hindered the development of the province and the country. This research paper recommends reforms in the legal framework of the mineral sector and advocates for advanced equipment in exploration to create employment opportunities. Additionally, establishing a domestic dispute resolution forum is proposed as a more favorable approach for settling such disputes, rather than resorting to international jurisdictions.

Inclusivity in the Settlement of Investment Disputes: Making a Case for Local Communities

This contribution examines the extent to which the Investor-State Dispute Settlement (ISDS) system takes into consideration the rights and interests of local African communities affected by investment disputes but are not parties to them. It argues that these communities receive unsatisfactory treatment, which often leads to their exclusion (or non-inclusion) from ISDS. The contribution goes further by exploring reforms likely to better protect these communities, increase their inclusion in ISDS as well as the legitimacy of the investment regime. The first part examines the raison d’être for inclusivity in investment arbitration and why it is important to talk about the inclusion of communities in investment adjudication. Zooming in on the case of African communities, the second part analyses the current participation of these communities in the settlement of investment disputes and attempts to demonstrate that this participation is limited and could lead to a partial or total denial of justice for affected communities, in other words, exclusion. The final part looks at some of the reforms and ideas that are currently being considered for better protection and inclusion of these communities.

Resolution of investment conflicts between the state and foreign companies in the context of crisis prevention

Currently, there are no conditions in Ukraine to ensure a high-quality business climate that would guarantee the security of investments. In the past, this has already led to conflict situations, which has resulted in a number of cases being brought against the state. The purpose of the study is to investigate the mechanism of resolving investment conflicts between the state and foreign companies. For this task, such methods as formal legal, dogmatic, legal hermeneutics, logical analysis, deduction, induction, and others were used. In the course of the study, an analysis of the international doctrine that regulates the provisions for resolving investment disputes, namely, the Washington Convention and the Seoul Convention, was carried out. It is determined that the number of foreign direct investments in Ukraine from 2012 to 2023 significantly decreased, and the investment attractiveness index reached a critically low value over the years, which indicates a negative attitude of business to current conditions. It is indicated that as a result, 15 proceedings were initiated at the International Centre for Settlement of Investment Disputes. It is revealed that in these cases, violations such as failure to provide equal and fair treatment are most often reported. Based on this, the need to improve the investment climate in Ukraine is determined. It is proposed to reduce the cost of access to the protection system for small and medium-sized enterprises; reduce the time for dispute resolution; and ensure the consistency and accuracy of arbitration decisions. The practical value of the results obtained is that the implementation of the recommendations provided will help to attract foreign investment necessary for the recovery and development of the country’s economy, and will also eliminate the problematic factors that lead to the opening of proceedings against the state

Eligible Juridical Person Investors in ICSID Arbitration

An investors eligibility is a prerequisite for International Centre for Settlement of Investment Disputes (ICSID) tribunal to acquire jurisdiction over a case. There is no definite conclusion on whether an entity is an eligible investor, often leading to disagreement. In current international investment practice, arbitration tribunals usually consider the definition of investor in the bilateral investment treaties concluded by the parties to the dispute and use it as one of the bases for determining the investors international status. Since the identification of juridical person investors is a controversial issue in practice, this essay will analyze the criteria for ICSIDs decision in the Tokios Tokels v. Ukraine as an example and examine the issue of pierce the corporate veil to explore the path to resolve related disputes.

The Anti-Reformist Stance in Investment Law

Abstract This article articulates an ‘anti-reformist’ stance toward the reform of international investment law and dispute settlement. The mainstream debates over the future of investment law are generally ‘reformist,’ in the sense that they seek to maintain the system of special legal rights afforded to a discrete class of persons defined as ‘investors’. This system of special rights amplifies investors’ power vis-à-vis other constituencies and is premised on flimsy assumptions about the investor’s vulnerability that are not borne out either in theory or in practice. Drawing on recent work in other fields, this article sketches an anti-reformist approach that asserts these fundamental challenges, even as it remains engaged in contemporary reform debates. It also discusses the near-term implications of this approach for procedural and substantive reform of investment treaties, as well as the long-range goals of an anti-reformist stance.

Analysis of the Construction of Investor-state Investment Dispute Settlement under RCEP

On January 1, 2022, the Regional Comprehensive Economic Partnership Agreement (RCEP) officially entered into force, marking the official landing of the world's most populous, largest economic and trade scale and most promising free trade area, which fully reflects the confidence and determination of all parties to jointly uphold multilateralism and free trade and promote regional economic integration, which will contribute to regional and global trade and investment growth, economic recovery and prosperity It will make an essential contribution to regional and international trade and investment growth, economic recovery and prosperity. Under RCEP, investment activities between China and ASEAN (Association of Southeast Asian Nations) countries will be further opened up and developed more deeply, which will inevitably lead to some disputes between investors and host countries will inevitably arise. However, RCEP puts aside the discussion on the investment dispute settlement mechanism between investors and governments. Although the RCEP currently proposes an alternative way for investors to seek redress in the dispute settlement chapter of Chapter 19, its implementation still needs to be improved in terms of protection. The existing dispute settlement mechanism still needs to efficiently and comprehensively protect and balance the reasonable rights and interests of investors and host countries. The RCEP parties shall jointly explore the construction of dispute prevention, consultation, mediation, arbitration, litigation, etc. A dispute settlement mechanism between the investor and the host country that integrates dispute prevention, negotiation, mediation, arbitration, and litigation is excellent.

"BILATERAL INVESTMENT AGREEMENTS AS A MEAN OF INTEGRATION INTO THE WORLD SOCIETY AND ITS SWOT ANALYSIS

Bilateral Investment Treaties (BITs) are a key prerequisite for effective investment. It ensures efficient use of resources and free movement of capital. When both parties from the signatories agree on the rules of the game, then a favorable and optimal environment for settlement of investment disputes is created. By simple definition, a bilateral investment treaty is an international agreement concluded between two countries. It contains bilateral obligations for the promotion and protection of private investments made by investors of one of these states in the territory of the other state. A bilateral investment treaty aims to promote and protect "investments" as defined in the relevant agreement. It is appropriate to consider specific cases separately, as a number of investments have the necessary qualifying characteristics. In most agreements, the parties specify which investors and what types of investments are included in the agreement. More recent bilateral investment treaties also contain articles that emphasize the right of a state to take appropriate and proportionate regulatory action in the public interest, for example to protect health and the environment. It should be noted that the European Commission is working on improving the legal protection of intra-European investments. Such a mechanism should be effective, economical, adapted to the activities of small and medium-sized businesses, benevolent and mandatory. Keywords: Bilateral Investment Treaties, Effective Investment Initiatives, SWOT Analysis of Bilateral Investment Treaties, Global Integration.

DEFINITION OF THE NOTION OF «INVESTMENT» UNDER THE 1965 CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES

The article analyzes scientific and the International Center for Settlement of Investment Disputes’ practical approaches to the interpretation of the notion of «investment» enshrined in the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The necessity of the research is due to, on the one hand, the absence of a unified, generally accepted definition of the notion of «investment», and, on the other hand, its role in resolving the issue of the jurisdiction of the International Center for Settlement of Investment Disputes over the resolution of international investment disputes. This issue is becoming increasingly relevant, given the steady economic and rapid technological development, which contributes to the emergence of new types of assets, in particular crypto assets. These latter may become the subject matter of an international investment dispute. Considerable attention has already been paid to this issue in a foreign legal opinion, whereas domestic science lacks research in this realm, which also indicates the relevance of this study. The article focuses on two main approaches, which are used by the International Center for Settlement of Investment Disputes while interpreting the notion of «investment». It is stated that the first approach, known in the English-language literature as the «double- barrelled test», lies in conducting a double study of the notion of «investment» by an arbitration panel – in accordance with a definition proposed by an international investment agreement, and in accordance with the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The second approach implies the direct appeal of arbitration panels to a term «investment», agreed by the States Parties to a relevant bilateral investment treaty. It is established that each of these approaches has certain advantages and disadvantages, the analysis of which allowed the author to offer recommendations on the merging of specified approaches in the process of defining the notion of «investment».

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.

ICSID Sebagai Lembaga Arbitrase Penyelesaian Sengketa Penanaman Modal Asing Bagi Indonesia Dan Praktiknya

Foreign investment in Indonesia is one of the efforts to develop the country's economy. Foreign investment is carried out by doing business in Indonesia, which is to invest in the form of foreign capital entirely or collectively with domestic investors. This practice is carried out by foreign investors with the existence of international treaty between Indonesia and its country as legal protection when investors invest in Indonesia, which can also choose a dispute resolution forum as a preventive action agreed by both parties. Through the Washington Convention, Indonesia ratified Law Number 5 of 1968 which is a form of Indonesia's commitment to resolved at the International Centre for the Settlement of Investment Disputes or ICSID. ICSID is an international arbitration institution that can be chosen based on certain provisions. This research was conducted using normative juridical method. The results are found that ICSID becomes a forum when Indonesia is in dispute with foreign investors who are also countries that ratify the Washington Convention. The Government of Indonesia has several times defended its international standing on the investment climate in the country through the ICSID forum. Therefore, this paper will examine ICSID as an investment dispute settlement institution and its practices.