Investor-state arbitration / Borzu Sabahi, Noah Rubins, Don Wallace Jr.

Format:

Book

Author/Creator:

Ṣabāḥī, Burzū, 1975 or 1976- author.

Rubins, Noah, author.

Wallace, Don, Jr., 1932- author.

Language:

English

Subjects (All):

Investments, Foreign (International law).

Physical Description:

1 online resource (993 pages)

Edition:

Second edition.

Place of Publication:

Oxford, England : Oxford University Press, [2019]

Summary:

This edition builds on the successful first edition to include developments in law and practice, and provides the reader with an even more in-depth expert coverage of all aspects of investor-State arbitration. New coverage includes but is not limited to jurisdiction ratione temporis, precedent, moral damages, and denial of benefits.

Contents:

Cover

INVESTOR-STATE ARBITRATION

Copyright

Preface

Acknowledgements

Summary of Contents

Table of Contents

Table of Cases

Table of Treaties, Conventions, and International Agreements

Guidance on Citations and Sources

Abbreviations

About the Authors

I. Introduction

A. Overview

B. The Importance of Investment Flows for Capital Importers and Exporters

C. BITs and ISDS as Mechanisms to Provide Security, Attract and Protect Foreign Investment

D. Early Experiences with the ISDS, Backlash, and Possible Reform

E. Topics Covered in the Second Edition

II. History and Limitations of the Traditional System for Resolving Investment Disputes

A. Harm Suffered by Foreign Investors

B. Barriers to Recovery by Foreign Investors

1. Barriers in Host Country Courts

a. Local Bias

b. State Immunity

c. Inefficient Local Courts

d. Calvo Doctrine

2. Barriers in Foreign Investors' Home Courts

a. Jurisdiction

b. Foreign Sovereign Immunity

c. Act of State Doctrine

d. Choice of Law

3. Political Barriers: The New International Economic Order

C. Traditional Remedies for Foreign Investors

1. Gunboat Diplomacy

2. Diplomatic Espousal

a. Practice of Espousal

b. The Limitations of Espousal

D. Some Early Investment Protection Regimes

1. Jay Treaty (1794)

2. Ad Hoc Arbitration

3. Binational Claims Commissions

4. Friendship, Commerce, and Navigation Treaties

5. Lump Sum Settlement Agreements

6. Investment Guarantee Programmes

7. The Algiers Accords

E. Limitations of Historic Dispute Settlement Processes

III. The Modern System of Investor-​State Arbitration

A. Origins

B. ICSID and Its Central Role in the Modern System of Investor-​State Arbitration

C. Bilateral Investment Treaties.

D. Multilateral Investment Treaties and Investment Chapters of Free Trade Agreements

1. North American Free Trade Agreement (NAFTA) and Its Successor

2. Energy Charter Treaty

3. The Dominican Republic-​Central American-​United States Free Trade Agreement

4. The Association of South East Asian Nations (ASEAN)

5. Multilateral Investment Agreements among Islamic Countries

6. Trans-​Pacific Partnership Agreement (TPP), TPP-​11, TTIP, and Other Agreements

E. National Investment Legislation

IV. Commonly Used Procedural Rules

A. Introduction

B. ICSID Rules

C. UNCITRAL Arbitration Rules

D. Stockholm Chamber of Commerce Rules

E. International Chamber of Commerce Rules

F. Permanent Court of Arbitration

G. Comparison of the ICSID and UNCITRAL Rules

1. ICSID Convention Requirements and the ICSID Screening Role

2. Place of Arbitration

3. Language of Arbitration

4. Appointment of Arbitrators

5. Governing Law

6. Mechanisms for Early Dismissal of Frivolous Claims

7. Cost and Speed

8. Interim Measures

9. Emergency Arbitrator

10. Challenge and Enforcement of Awards

11. Consolidation and Mass (or Multiparty) Claims

12. Transparency and Amici Curiae

V. National Court Interference: Anti-​Arbitration Injunctions

B. Anti-​Arbitration Injunctions in Investment Treaty and ICSID Arbitration

C. Bases for Court Intervention in International Commercial Arbitration

D. Anti-​Arbitration Injunctions in Non-​ICSID Investment Arbitrations

VI. The Course of an Investment Arbitration: Overview of the Procedure

B. Applicable Procedural Rules

C. Waiting Periods

D. Local Remedies

E. Notice of Claim and Request for Arbitration

1. Notice of Claim

2. Request for Arbitration.

F. Dynamics on the Host State Side Upon Receiving a Notice of Claim

G. Third Party Funding

H. 'Registration' or Approval by Arbitral Institution

I. Default of a Party

J. Composition of Tribunal

1. Qualifications of Arbitrators

2. Arbitrator Selection Procedures

K. Powers of Arbitral Tribunals

1. Overview

2. Inherent Powers of Arbitral Tribunals

L. Seat of Arbitration

M. Language of Arbitration

N. Initial Session of the Tribunal

O. Jurisdictional Phase

1. Bifurcation of Proceedings

2. Standard of Proof with Respect to Merits at Jurisdiction Phase: Oil Platform Test

3. Jurisdiction and Admissibility

P. Merits Phase

1. Briefing

2. Host State Defences

3. Counterclaims

a. Overview

b. Ratione Materiae Jurisdiction

c. Ratione Personae Jurisdiction

d. Connection between Counterclaim and Primary Claims

e. Additional Case Studies

Q. Witness Statements and Other Evidence

1. Witness Statements

2. Document Production from Parties to the Dispute

3. Evidentiary Privileges

4. Burden and Standard of Proof

5. Evidence Collection from Third Parties

6. US Procedures and Evidence Taking from Third Parties

R. Damages Phase

S. Hearings

T. Posthearing Briefs

U. Award

V. Enforcement and Challenge of Award

VII. Special Procedures: Applications and Motions

B. Challenge of Arbitrators

1. Qualities Required of an Arbitrator

2. Arbitrators' Duty to Disclose

3. Challenge Procedure Under the ICSID Rules

4. Applicable Standard

5. ICSID Case Studies

6. Challenge of Arbitrators Under the UNCITRAL Rules

C. Early Dismissal of Frivolous Claims

D. Arbitrator-​Ordered Interim Relief

1. Provisional Measures Under the ICSID Convention

a. Legal Framework

b. Effect of ICSID Recommendation.

c. Standard for Granting Interim Relief in ICSID Cases

2. Granting Interim Relief Under the UNCITRAL Arbitration Rules

b. Standard for Granting Interim Relief Under the UNCITRAL Arbitration Rules

3. Requests for Interim Relief: Case Studies

a. Obtaining Evidence

b. Financial Guarantees and Security for Costs

c. Preserving Confidentiality

d. Enjoining Parallel Proceedings

E. Amicus Curiae Submissions and Transparency

F. Consolidation, Multiparty and Mass Claims

1. Introduction

2. Consolidation in ICSID

3. UNCITRAL Arbitration Rules and Joinder of Proceedings

4. North American Free Trade Agreement Article 1126

5. Consolidation Provisions in Modern Investment Treaties

6. Mass Claims

VIII. Governing Law in Investment Disputes

B. The Choice of Law and Conflict Resolution Provisions

C. Public International Law

1. International Investment Treaties and Their Interpretation

2. Customary International Law

3. General Principles of Law

4. The Role of Precedent

D. Host State Law

1. Treatment of Host State Law Under ICSID Article 42(1)

2. Treatment of Host State Law in Non-​ICSID Cases

IX. Consent to Arbitral Jurisdiction

B. Fundamental Concepts Relating to Consent

1. Methods of State Consent to Arbitration

2. Methods of Accepting the State's Offer to Arbitrate

3. Irrevocability of Consent

4. Legality of Investments as a Condition of Consent

C. Methods of State Consent to Arbitration

1. Investment Protection Treaties Containing Consent to Arbitration

2. Arbitration Clauses in Investment Contracts

3. National Investment Legislation

4. Investment Arbitration Based on a Compromis

X. Notion of Investment

B. Admission, Establishment, and Protection of Pre-​Investment Activities.

C. Definition of Investment in Investment Treaties

1. Non-​Exhaustive Lists in Investment Treaties

2. Exhaustive Lists in Investment Treaties

3. 2004 US Model BIT Approach

D. Definition of Investment and Its Implications for the Jurisdiction of Arbitral Tribunals Under the ICSID Convention

1. Travaux Preparatoires of the ICSID Convention Regarding the Notion of Investment Under Article 25

2. Dual Jurisdictional Requirements for Submission of a Case to Arbitration Under the ICSID Convention

E. Characteristics of Investment Under Article 25 of the ICSID Convention

2. Duration of an Activity

3. Assumption of Risk

4. Significant Contribution of Resources to the Host State

5. Contribution to Economic Development of the Host State

F. The Concept of Unity of Investment Under the ICSID Convention

G. Contribution, Duration, and Risk in Non-​ICSID Cases: Romak v. Uzbekistan and Its Progeny

H. Survey of Other Non-​ICSID Cases on Meaning of Investment

XI. Investors

A. Natural Persons

1. National Laws

3. Investment Treaties and the ICSID Convention

4. Claims of Dual Nationals

B. Legal Persons

1. Investment Treaty Provisions

2. Denial of Benefits

3. Local Companies Controlled by Foreign Investors under the ICSID Convention

4. Standing of Companies Controlled by Nationals of the Host State

a. Tokios v. Ukraine

b. TSA v. Argentina

C. Shareholder Losses, Standing, and Scope of Recovery

1. Direct, Reflective, and Derivative Losses

2. Standing

a. Customary International Law

b. Investment Treaties

3. Scope of Recovery

a. Standard Investment Treaties: Direct and Reflective Loss

b. Direct, Reflective, and Derivative Losses Under NAFTA and its Progeny

D. Change of Nationality and Treaty Shopping.

1. Continuity of Nationality Under Customary International Law.

Notes:

Description based on print version record.

Includes bibliographical references and index.

ISBN:

0-19-184212-5

0-19-107527-2

0-19-107526-4

OCLC:

1273975825