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Author: Susan D. Franck
Publisher: Oxford University Press
ISBN: 019005445X
Category : Law
Languages : en
Pages : 551
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Book Description
Investment treaty arbitration (sometimes called investor-state dispute settlement or ISDS) has become a flashpoint in the backlash against globalization, with costs becoming an area of core scrutiny. Yet "conventional wisdom" about costs is not necessarily wise. To separate fact from fiction, this book tests claims about investment arbitration and fiscal costs against data so that policy reforms can be informed by scientific evidence. The exercise is critical, as investment treaties grant international arbitrators the power to order states-both rich and poor-to pay potentially millions of dollars to foreign investors when states violate the international law commitments made in the treaties. Meanwhile, the cost to access and defend the arbitration can also climb to millions of dollars. This book uses insights drawn from cognitive psychology and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties' counsel and arbitral tribunals. It offers a nuanced analysis of how and when cost-shifting occurs, parses tribunals' rationalization (or lack thereof) of cost assessments, and models the variables most likely to predict costs, using data to point the way towards evidence-based normative reform. With an intelligent interdisciplinary approach that speaks to ongoing reform at entities like the World Bank's ICSID and UNCITRAL, this book provides the most up-to-date study of investment treaty dispute settlement, offering new insights that will shape the direction of investment treaty and arbitration reform more broadly.
Author: Susan D. Franck
Publisher: Oxford University Press
ISBN: 019005445X
Category : Law
Languages : en
Pages : 551
Get Book Here
Book Description
Investment treaty arbitration (sometimes called investor-state dispute settlement or ISDS) has become a flashpoint in the backlash against globalization, with costs becoming an area of core scrutiny. Yet "conventional wisdom" about costs is not necessarily wise. To separate fact from fiction, this book tests claims about investment arbitration and fiscal costs against data so that policy reforms can be informed by scientific evidence. The exercise is critical, as investment treaties grant international arbitrators the power to order states-both rich and poor-to pay potentially millions of dollars to foreign investors when states violate the international law commitments made in the treaties. Meanwhile, the cost to access and defend the arbitration can also climb to millions of dollars. This book uses insights drawn from cognitive psychology and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties' counsel and arbitral tribunals. It offers a nuanced analysis of how and when cost-shifting occurs, parses tribunals' rationalization (or lack thereof) of cost assessments, and models the variables most likely to predict costs, using data to point the way towards evidence-based normative reform. With an intelligent interdisciplinary approach that speaks to ongoing reform at entities like the World Bank's ICSID and UNCITRAL, this book provides the most up-to-date study of investment treaty dispute settlement, offering new insights that will shape the direction of investment treaty and arbitration reform more broadly.
Author: Susan D. Franck
Publisher:
ISBN: 9780190054465
Category : LAW
Languages : en
Pages :
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Book Description
This book uses extensive empirical analysis to explore the direct costs of investment treaty arbitration, seeks to identify elements most likely to drive costs, and proposes opportunities for process efficiency, cost containment, and equality of treatment to promote consistency, predictability, and rule-of-law.
Author: Eric De Brabandere
Publisher: Cambridge University Press
ISBN: 1107066875
Category : Law
Languages : en
Pages : 265
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Book Description
This book demonstrates how the public international law character of investment treaty arbitration has impacted on the dispute settlement procedure.
Author: Chester Brown
Publisher: Cambridge University Press
ISBN: 1139503618
Category : Law
Languages : en
Pages : 747
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Book Description
International investment law is in a state of evolution. With the advent of investor-State arbitration in the latter part of the twentieth century - and its exponential growth over the last decade - new levels of complexity, uncertainty and substantive expansion are emerging. States continue to enter into investment treaties and the number of investor-State arbitration claims continues to rise. At the same time, the various participants in investment treaty arbitration are faced with increasingly difficult issues concerning the fundamental character of the investment treaty regime, the role of the actors in international investment law, the new significance of procedure in the settlement of disputes and the emergence of cross-cutting issues. Bringing together established scholars and practitioners, as well as members of a new generation of international investment lawyers, this volume examines these developments and provides a balanced assessment of the challenges being faced in the field.
Author: Gus Van Harten
Publisher: Oxford University Press on Demand
ISBN: 9780199552146
Category : Business & Economics
Languages : en
Pages : 214
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Book Description
The recent explosion of investment treaty arbitration marks a revolutionary change in both international and public law, above all because it demonstrates how states have unwittingly privatized key powers of the courts in public law. This book outlines investment treaty arbitration as a public law system, by precisely demonstrating the significance of giving arbitrators comprehensive jurisdiction to decide regulatory disputes between business and state. In doing so, it exposes some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. First, private arbitrators can award compensation to investors in ways that go well beyond domestic systems of state liability in public law. Second, these awards can be enforced in as many as 165 countries, making them more widely enforceable than other judicial decisions in public law. Third, public law can be interpreted in private as a matter of course, without any appeal to a court to correct errors of law. The conflict between private arbitration and public law poses a serious challenge to open and accountable judging. But the critical flaw of the system - hitherto neglected - is its threat to judicial independence based on security of tenure. Under investment treaties, business claims against the state are decided by privately-contracted adjudicators, who win appointments only as more claims are brought. Thus, as the book explains, the 'judge' has a financial stake in how public law is interpreted and in the outcome of the dispute. While it is laudable to use international adjudication to resolve controversial disputes, the benefits of a global economy are no excuse for corrupting our historic tradition of independent courts.
Author: Ian A. Laird
Publisher: Juris Publishing, Inc.
ISBN: 1937518418
Category : Conflict of laws
Languages : en
Pages : 428
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Book Description
Is it Time for a Regime Change? Protecting International Energy Investments against Political Risk. The 2013 seventh annual Juris investment arbitration conference put in issue the special role of international energy projects in the development of investor-state arbitration. It is currently one of the most active sectors of investor-state arbitration. The “facts” of the energy sector therefore are particularly well-developed in international jurisprudence. The similarities in the applicable law of investment protection between the energy sector and other sectors tend to hide from view what our panelists repeatedly uncovered: it is the facts of energy disputes that significantly set them apart. The concerns of sovereign dominion over national energy production and the protection of foreign investors in the energy sector against stranding large investments served as a key point of departure for discussions. The four questions that the Conference addressed include: The Energy Sector, Investment Arbitration and the ECT: Carving out a Special Regime? Energy Contracts and BITS – Is it Fair and Equitable to be Under the Umbrella? Mulitparty Investor Disputes in the Energy Sector – Preclusion, Consolidation or Free-For-All? Measure by Measure? Calculating Damages in Energy Disputes The discussion and debate that followed is provided in this book and sure to be of tremendous value to the international business lawyer, litigation specialist or trade and investment law policy expert.
Author: Alan M. Anderson
Publisher: Kluwer Law International B.V.
ISBN: 9403518103
Category : Law
Languages : en
Pages : 454
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Book Description
Investor-State disputes are increasing and damage awards are often significant. It is thus no surprise that the investor-State dispute settlement (ISDS) system has come under scrutiny. Perceptions have arisen that ISDS is inconsistent, lacks transparency, and is simply unfair. This book delves into the ongoing worldwide debate and discussions regarding the ISDS system. Drawing contributors from around the world, the authors provide insights on critical topics and address the key question facing the ISDS system and the international community it serves: Should the present ISDS system be reformed, replaced, or simply remain as is? The contributors represent points of view ranging from academia to practice to governmental entities, addressing such topics as: the possible consequences of wholesale replacement or elimination of the current ISDS system; mediation as an alternative to resolve ISDS disputes; the creation of a multinational investment court or appellate review mechanism; lack of an early dismissal mechanism to eliminate meritless claims; issues regarding arbitrators, including their appointment and ethical obligations; how investors may retain their right to pursue claims for violations of investment protection following termination of an agreement; a State’s right to assert a counterclaim against an investor-claimant; the role of ISDS in promoting and protecting renewable energy production; the liability of State-controlled entities; the effects and implications of third-party funding; the duty to mitigate damages in the light of excessive damages awards; and improvements and issues relating to post-award enforcement, duration, and cost of ISDS. This book considers the ongoing deliberations and reform measures proposed by UNCITRAL’s Working Group III and provides insights into how several geographic regions and economic cooperation areas have sought to address the question of reform of the ISDS system, including the European Union, the Middle East, and the new United States-Mexico-Canada Agreement. With its much-needed and deeply informed balancing of investor and State rights and duties, this book will be welcomed by all who practise in the ISDS field, including arbitrators, State governments and non-governmental organizations, regional economic organizations, and international investors.
Author: Santiago Montt
Publisher: Bloomsbury Publishing
ISBN: 1847315488
Category : Law
Languages : en
Pages : 460
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Book Description
Today there are more than 2,500 bilateral investment treaties (BITs) around the world. Most of these investment protection treaties offer foreign investors a direct cause of action to claim damages against host-states before international arbitral tribunals. This procedure, together with the requirement of compensation in indirect expropriations and the fair and equitable treatment standard, have transformed the way we think about state liability in international law. We live in the BIT generation, a world where BITs define the scope and conditions according to which states are economically accountable for the consequences of regulatory change and administrative action. Investment arbitration in the BIT generation carries new functions which pose unprecedented normative challenges, such as the arbitral bodies established to resolve investor/state disputes defining the relationship between property rights and the public interest. They also review state action for arbitrariness, and define the proper tests under which that review should proceed. State Liability in Investment Treaty Arbitration is an interdisciplinary work, aimed at academics and practitioners, which focuses on five key dimensions of BIT arbitration. First, it analyses the past practice of state responsibility for injuries to aliens, placing the BIT generation in historical perspective. Second, it develops a descriptive law-and-economics model that explains the proliferation of BITs, and why they are all worded so similarly. Third, it addresses the legitimacy deficits of this new form of dispute settlement, weighing its potential advantages and democratic shortfalls. Fourth, it gives a comparative overview of the universal tension between property rights and the public interest, and the problems and challenges associated with liability grounded in illegal and arbitrary state action. Finally, it presents a detailed legal study of the current state of BIT jurisprudence regarding indirect expropriations and the fair and equitable treatment clause. This title is included in Bloomsbury Professional's International Arbitration online service.
Author: Martin Jarrett
Publisher: Cambridge University Press
ISBN: 110848140X
Category : Law
Languages : en
Pages : 207
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Book Description
Often derided for its asymmetry, this book shows how investors can be held to account in international investment law.
Author: Yuliya Chernykh
Publisher: BRILL
ISBN: 9004414703
Category : Law
Languages : en
Pages : 629
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Book Description
Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.
