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U.S. Free Trade Agreements and Bilateral Investment Treaties: How Does Ratification Differ?

A lot has been written recently about the importance of Trade Promotion Authority (TPA) in the context of the ongoing Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) negotiations. TPA is the authority Congress grants to the President to enter into certain reciprocal trade agreements that Congress can approve or disapprove but cannot amend or filibuster (i.e., passing an agreement would require solely an “up or down” vote by Congress). Many observers believe that TPA is a necessary piece to the successful conclusion of either agreement—it will be difficult for negotiating parties to put their best offers forward without some assurance that Congr [...]

ISDS: which way will the scales TTIP?

On 29 September 2014, the European Commission (EC) and the US initiated the seventh round of negotiations for the conclusion of the Transatlantic Trade and Investment Partnership (the TTIP).1 The negotiations began in July 2013 after the EC received its mandate from the EU Member States. According to the EC, the TTIP aims to remove the existent trade barriers between the EU and the US in a wide range of economic sectors as well as to look at possibilities of converging regulations, opening market for services, public procurement and investment.2

One of the most controversial questions in relation to the TTIP has been whether to include an Investor-State Dispute Settlement (ISDS) provision. [...]

Investment Protection – Swiss Style

The views expressed in this article are those of the authors alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the authors’ respective law firms.

While the press has been full lately of a reported backlash against investment arbitration, Switzerland has been making quiet progress in its efforts to update and expand on the treaty protections enjoyed by Swiss investors.

Switzerland historically has been an attractive location for international corporate headquarters. Corporations domiciled in Switzerland have a longstanding tradition of investing considerable amounts abroad. Despite Switzerland’s relatively small size, it is the seventh-highest direc [...]

Cart Before the Horse: Can MFN Clauses Expand the Key Definitions in Investment Treaties?

The debate regarding the extent to which most favoured nation (‘MFN’) clauses in bilateral investment treaties (‘BITs’) can expand the scope of application of such treaties is a well-established and evolving dialogue in investment treaty jurisprudence. However, while the issues around the extension of substantive and procedural protections in BITs have received considerable attention, the nuance around whether MFN clauses can expand the scope of application of BITs has been less closely examined.

MFN clauses are typically invoked in order to import a more favourable substantive protection, such as a broader definition of ‘expropriation’ or ‘compensation’, or more favourable p [...]

Indonesia’s Termination of the Netherlands–Indonesia BIT: Broader Implications in the Asia-Pacific?

The value of investor-state dispute settlement (ISDS) procedures has lately been questioned by a number of countries. The Australian Government’s 2011 Trade Policy Statement – stating that Australia would not agree to ISDS in its treaties – caused much debate and controversy. In part, Australia’s policy was motivated by the Philip Morris claim, instituted in response to legislation requiring the plain packaging of cigarettes. Since then, a change of government in 2013 has meant that Australia has retracted considerably from its strict position. The current Government has indicated it will consider the inclusion of ISDS on a case-by-case basis. While the Government agreed to the inclu [...]

“White Industries” and State Responsibility: Lesser-Known Facts about the Case as Discussed during the 2014 ICCA Young Arbitration Practitioners Conference

and Sapna Jhangiani, Clyde & Co. and Joseph P. Matthews J.D., University of Miami School of Law
for Young Arbitration Practitioners

It has been some time since the White Industries Australia Limited v Republic of India judgment was rendered against India in 2011. However, there remain several interesting aspects of the case still not widely known by the international arbitration community. For example, it is generally considered that this case was the first Investment Treaty Claim (ITA) against India. In fact, there was another ITA claim against India previously – the Dabhol case – which was related to a power project in State of Maharashtra, but was settled in 1996. This post seeks to set [...]

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