Ensuring Equitable Access to All Stakeholders: Critical Suggestions for the MIC (EFILA Submission to the UNCITRAL WG no. 3 on ISDS Reforms)

EFILA has recently submitted its suggestions to the UNCITRAL Working Group no. 3 on ISDS Reform. The entire document can be found here. An extract can be read below.

The European Federation for Investment Law and Arbitration (EFILA) believes that no discussion about the reform of the investor-State dispute settlement (ISDS) system should occur without taking stock of the interests of all stakeholders. This is particularly true for the proposal for a Multilateral Investment Court (MIC), which is currently being discussed and negotiated in UNCITRAL Working Group III. Without the active participation of all stakeholders (i.e. all potential users of the MIC) – including investors and their legal counsel – any ISDS system will lack legitimacy.

With this in mind, EFILA submits the following, non-exhaustive suggestions for ISDS reform and, in particular, for the MIC proposal:

The Appointment & Selection of MIC Judges: Central to the ISDS system’s ability to effectively resolve disputes between investors and States is the confidence of all stakeholders in their decision-makers. For this reason, EFILA believes that investors should continue to have a direct and indirect say in the choice of their decision-makers. The MIC should:

  1. Let a college of representatives chosen by the investors, as users of the system, participate in choosing candidates for the MIC;
  2. Give all stakeholders a right to strike out a given number of judges assigned to their panel; and
  3. Allow all stakeholders to retain the right to challenge MIC judges on the basis of clearly defined standards before an independent body.

Consistency of MIC Decisions: EFILA agrees that consistency in legal decisions is an important element of any well-functioning dispute resolution system. Consistency, however, must be objective. It cannot be used as a means to “correct” awards that arrive at unwelcome results. Any responses to consistency must respect the rule of law and the equality of the parties.

Accordingly, any final design of the MIC should:

  1. Not allow joint binding interpretations with potentially retroactive effect;
  2. Avoid unnecessarily reducing the material scope of the standards of investment and investor protection; and
  3. Limit exclusions of certain types of investors, investments and sectors to only to the
    extent objectively and reasonably necessary.

Access To Justice For SMEs: Small and medium sized enterprises (SMEs) are an integral part of the global economy. Any proposed reform of the ISDS system cannot disregard SMEs or discourage them from making full use of the ISDS system. The MIC, therefore, must include structural and systemic solutions that effectively ensure access to the system for SMEs. These include:

  1. Adopting cost-efficient rules that promote access to justice by SMEs;
  2. Establishing a process that informs and educates SMEs about the ISDS system and helps them to assess their claims; and
  3. Creating a financial support system for accessibility to the ISDS system for SMEs.

Enforcement of MIC Decisions: The application of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) to MIC decisions (even if just on an interim basis) raises serious potential obstacles to the enforceability of those decisions. Further thought should be given to ensuring that MIC decisions will be enforceable.

These suggestions, EFILA believes, will encourage confidence from all stakeholders in the MIC system and thus make the MIC a fair dispute settlement system for all users.

The entire document can be found here.

New from Oxford University Press: China’s International Investment Strategy Bilateral, Regional, and Global Law and Policy

China’s International Investment Strategy
Bilateral, Regional, and Global Law and Policy
International Economic Law Series

Edited by Julien Chaisse

9780198827450
This collection, compiled by award-winning scholar Professor Julien Chaisse, explores the three distinct tracks of China’s investment policy and strategy: bilateral agreements including those with the US and the EU; regional agreements including the Free Trade Area of the Asia Pacific; and global initiatives, spear-headed by China’s presidency of the G20 and its ‘Belt and Road initiative’. The book’s overarching topic is whether these three tracks compete with each other, or whether they complement one another – a question of profound importance for the country’s political and economic future and world investment governance.

Features

• Combines legal, economic and international relations perspectives, to provide a comprehensive analysis of the subject
• Brings together a group of experts in the field, exploring the most recent issues in international trade law
• A variety of illustrations support and elucidate the contributors’ arguments.

Table of Contents
Forward, Zhao Hong
Introduction: China’s International Investment Law and Policy Regime- Identifying the Three Tracks, Julien Chaisse
1: China’s Inward Investment: Approach And Impact, Michael J. Enright
2: China’s Outward Investment: Chinese Enterprise Globalization’s Characteristics, Trends, and Challenges, Hui Yao Wang and Lu Miao
3: Impact of Tax Factors on Chinese FDIs, Na Li
4: SOE Investments and The National Security Protection: Implications For China, Lu Wang
5: Nationwide Regulatory Reform Starting From China’s Free Trade Zones: The Case Of Negative List Of Non-Conforming Measures, Jie (Jeanne) Huang
6: Addressing Sustainable Development Concerns through IIAs: A Preliminary Assessment of Chinese IIAs, Manjiao Chi
7: Lessons Learned from The Canada-China FIPA For The US-China BIT And Beyond: Chinese Whispers Or Chinese Checkers?, Kyle Dylan Dickson-Smith
8: Innovation as a Catalyst in the China-Israel Investment Relationship:The China-Israel BIT (2009) and the Prospective FTA, Hadas Peled and Marcia Don Harpaz
9: Drivers and Issues of China-EU Negotiations for A Comprehensive Agreement on Investment, Flavia Marisi and Qian Wang
10: Issues on SOEs in BITs: The (Complex) Case of the Sino-US BIT negotiations
11: Towards A Fourth Generation of Chinese Treaty Practice: Substantive Changes, Balancing Mechanisms, And Selective Adaption, Matthew Levine
12: Substantive Provisions of East Asian Trilateral Investment Agreement and Their Implications, Won-Mog Choi
13: The RCEP Investment Rules and China: Learning From the Malleability of Chinese FTAs, Heng Wang
14: Towards an Asia-Pacific Regional Investment Regime: The Potential Influence of Australia and New Zealand as a Collective Middle Power, Amokura Kawharu and Luke Nottage
15: A New Era in Cross-Strait Relations? A Post-Sovereign Enquiry in Taiwan’s Investment Treaty System, Horia Ciurtin
16: China Moves The G20 Toward An International Investment Framework And Investment Facilitation, Karl P. Sauvant
17: G20 Guiding Principles for Global Investment Policy-Making: A Stepping Stone for Multilateral Rules on Investment, Anna Joubin-Bret and Cristian Rodriguez Chiffelle
18: Beware of Chinese Bearing Gifts: Why China’s Direct Investment Poses Political Challenges in Europe and the United States, Sophie Meunier
19: The Political Economy of Chinese Outward Foreign Direct Investment in “One-Belt, One-Road (OBOR)” Countries, Ka Zeng
20: China’s Role And Interest In Central Asia: China-Pakistan Economic Corridor, Manzoor Ahmad
21: The International Fraud & Corruption Sanctioning System: The Case of Chinese SOEs, Susan Finder
22: He Who Makes the Rules Owns the Gold: The Potential Ramifications of The New International Law Architects, Joel Slawotsky
23: Investment Treaty Arbitration in Asia: The China Factor, Matthew Hodgson and Adam Bryan
24: Investment Disputes Under China’s Bits: Jurisdiction with Chinese Characteristics?, Jane Willems
25: Protecting Chinese Investment Under the Investor-State Dispute Settlement Regime: A Review In Light Of Ping An V Belgium, Claire Wilson
26: Use Of Investor-State Against China’s Enforcement of The Anti-Monopoly Law: Belling The Panda?, Sungjin Kang
27: Implementing Investor-State Mediation in China’s Next Generation investment Treaties, Shu Shang

For more details, please visit the OUP dedicated page.

Book Launch: The BRICS-Lawyers’ Guide to Global Cooperation

Cambridge University Press has just published a new collective volume regarding the BRICS legal arena, suggestively entitled “The BRICS-Lawyers’ Guide to Global Cooperation”. Its editors are: Rostam J. Neuwirth (University of Macau), Alexandr Svetlicinii (University of Macau) and Denis De Castro Halis (University of Macau).

In the international trade and development arena, new and developing economies have created a block that is known as BRICS – Brazil, Russia, India, China and South Africa. Initially conceived to drive global change through economic growth, the financial crisis and reversal of fortunes of the BRICS nations have raised questions about their ability to have an impact on the governance of global affairs.

This book explores the role of law in various areas of BRICS cooperation including: trade, investment, competition, intellectual property, energy, consumer protection, financial services, space exploration and legal education. It not only covers the specifics of each of the BRICS nations in the selected areas, but also offers innovative and forward-looking perspectives on the BRICS cooperation and their contribution to the reform of the global governance networks. This is a unique reference book suitable for academics, government officials, legal practitioners, business executives, researchers and students.

The BRICS-Lawyers' Guide to Global Cooperation_Cover

See more at the publisher’s webpage.

BDA & AIA: Master Class on Investment Arbitration: Brussels, 19-22 September 2016

Dr. Nikos Lavranos, Secretary-General of EFILA, will give a Master Class on Investment Arbitration for the Brussels Diplomatic Academy and AIA on Monday, 19 September 2016 in Brussels. This Master Class is part of the closer cooperation agreed between EFILA and the AIA.

See here for the programme and registration: Master Class: Investment Arbitration


The Brussels Diplomatic Academy (BDA) and the Association for International Arbitration (AIA) kindly invite you to attend:

Master Class
on
Investment Arbitration

19-22 September, 2016

[Interesting to know: Several top diplomats already confirmed their participation]

BACKGROUND
The law on foreign investment protection is one of the fastest developing and intellectually challenging branches of international law with high practical relevance. Investment arbitration is predicted to be a major factor in the development of the global economic system. The number of investment disputes before international arbitral tribunals has increased significantly over the last decades and reflects the notable preferences of the international business community for resolving international investment disputes. Acquaintance with the legal regime for investment arbitration and case law has now become indispensable for those involved in investments, economic diplomacy and international dispute resolution. In the course of the Master Class, speakers will examine the fundamental notions relevant to investment arbitration and critically review a number of major cases.

AUDIENCE
This course is recommended to diplomats, government officials, investment arbitrators, lawyers involved in investment protection, private investors and executives involved in investment decision-making processes.

ADDED VALUE
The four days seminar is designed to provide its participants with a concentrated educational experience in the areas of law on foreign investment protection and investment arbitration. It is specifically aimed to provide practical help to those who wishes to grasp the fundamentals of investment arbitration. The course also offers an explanation of legal rules and relevant guidelines as well as checklists and practice examples.

The course’s unique feature is its international scope. Participants from a broad range of backgrounds will participate in a dynamic learning experience, where the multifaceted aspects of arbitration are considered from a range of comparative perspectives.

European Investment Law and Arbitration Review (EILARev) Launched

EFILA and Queen Mary University are delighted to launch the new legal journal entitled European Investment Law and Arbitration Review, which will be published by Brill/Martinus Nijhoff.

The Editor-in-Chief is Prof. Loukas Mistelis (QMU) and the Managing Editor is Dr. Nikos Lavranos (SG of EFILA).

The journal welcomes submissions within the scope of it. The deadline is 15 May 2016.

About the Review

With the entrance of the European Union into the field of International Investment Law and Arbitration, a new specialist field of law, namely “European investment law and arbitration” is in the making. This new field of law draws on EU Law, International Investment Law, International Arbitration Law and Practice, International Economic Law and Public International Law, while others fields of law such as Energy Law are also relevant.

The first EU integrated investment treaties with Canada (CETA), US (TTIP) and Singapore (EU-SING) are either negotiated or about to be signed and ratified by the EU and its Member States. These are “integrated” investment treaties in that they combine free trade agreement provisions with international investment agreement norms. Moreover, the Court of Justice of the EU (CJEU) is about to deliver its first judgments and Opinions directly relating to intra-EU BITs and the EU-SING FTA. More generally, the public debate and discussions within academic and practitioner circles about the pros and cons of investor-state dispute settlement (ISDS) and investment treaties in general is intensifying with the day.

This Review is the first law journal that is specifically dedicated to the field of “European Investment Law and Arbitration”. While the developments in Europe and the efforts of the EU institutions is the focus of this Review, the developments in other parts of the world are equally relevant. We therefore especially welcome submissions from all parts of the world, which are related to the developments of European Investment Law and Arbitration.

The Review covers long scholarly articles, shorter articles, case-notes and book reviews. The Review is peer-reviewed by the Editorial Board Members and will only publish high quality contributions.

Initially, the Review will be published once a year, but aims to publish twice a year in the future.

Call for Papers 2016

The Editorial Board invites submissions for publication for the 2016 issue.

The deadline for submission is: 15 May 2016.

​ Submissions should be in English and must be in conformity with the house style of the journal. ​All submissions must be unpublished and original material.

​Submissions should be send as MS-WORD doc to: EILARev2016@gmail.com

​ All submissions will be peer-reviewed. The Editorial Board reserves the right to accept, reject a submission or make publication conditional on modifications, which have been suggested to the author.

All information about the journal and the Call for Papers is available at: http://europeaninvestmentlawarbitrationreview.weebly.com/

EFILA Blog’s October Recommendation: Proportionality in Investor-State Arbitration

This month’s recommendation from Oxford University Press: Gebhard Bücheler – Proportionality in Investor-State Arbitration.

The new volume by Gebhard Bücheler:

  • Shows that proportionality is a general principle of law relevant to investor-State arbitration
  • Develops an analytical framework for deciding in which legal settings conflicts between the interests of foreign investors and the public interest ought to be resolved by a proportionality analysis
  • Contains an in-depth analysis of the current and potential role of proportionality in expropriation provisions, the standard of fair and equitable treatment, non-precluded measures clauses (Article XI of the US-Argentina BIT), and the customary international law defense of necessity

While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticized for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competing rights and interests. This book assesses its current role, its potential, and its limits in investor-State arbitration.

Proportionality is often lauded for reconciling colliding interests. This book identifies three factors arbitrators should consider before engaging in a proportionality analysis: the rule of law, the risk of judicial law-making, and the availability of a value system that guides the proportionality analysis. Apart from making suggestions when arbitrators should apply proportionality and when not to, the book outlines what States can do to recalibrate the balance between private property rights and the public interest if they wish to do so without dismantling the current system of investor-State arbitration.

Proportionality in Investor-State Arbitration considers whether and to what extent the notion of general principles of law within the meaning of Article 38(1)(c) of the ICJ Statute and the concept of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides a valid legal foundation for applying proportionality in investor-State arbitration.

Bücheler’s book represents a most welcome voice in the present discourse. It not only contributes to academic clarification of its topic, but is also a guide to the practical application of the proportionality principle. I therefore commend Proportionality in Investor-State Arbitration to scholars, counsel and arbitrators as well as to domestic decision-makers, in particular to treaty negotiators.” – Bruno Simma