On May 26, 2015, Brazil signed its third investment treaty of 2015 with Mexico. Given the agreements previously signed with Angola and Mozambique, this certainly comes as a confirmation of a new Brazilian attitude towards the regulation of foreign investment. The instrument mostly follows the same model used for the previous two: a Cooperation and Facilitation Investment Agreement (“CFIA”).
The CFIA model and the two treaties have been briefly analyzed elsewhere by outstanding practitioners. But one may still wonder: what exactly are these CFIAs and how do they fit in both the Brazilian and the international contexts? CFIAs may represent more than they initially appear to.
In its press r [...]
The Government of India recently released the Draft Indian Model BIT (“Draft BIT”) for public consultation. India has an extensive BIT network with over 72 BITs in force. In 2012, following the investment treaty award against India in White Industries award, the Government initiated a comprehensive effort to revise the Model Indian BIT (“Old BIT”). The Draft BIT is radically different from the Old BIT, making substantial changes to provisions in the Old BIT, and deleting many other provisions such as the FET and MFN provisions, as well as the clear consent to arbitration under the ISDS clause.
Changes Introduced in the Draft BIT
The preamble of the Draft BIT contains an [...]
Germany’s position on international investment law and investor-State arbitration is attracting increasing attention since the signing of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) in September 2014 has been deferred, inter alia, because of opposition from Sigmar Gabriel, Germany’s Federal Minister for Economic Affairs and Energy. Is Germany, the country that not only has concluded the first bilateral investment treaty (BIT) in 1959 but also has the densest network of BITs worldwide, as some fear, joining the coalition of critics in fundamentally reversing its international investment policy?
Mounting Criticism of International Investment Law in Germany in Context
The Inaugural Conference of the European Federation for Investment Law and Arbitration (EFILA) took place on Friday, 23 January 2015, in the Senate House of the Queen Mary University of London. 160 participants ranging from academics, arbitrators, arbitration institutions, companies, lawyers to NGOs reviewed a full day long the EU’s first 5 years of European investment policy.
The conference was kicked off by the first panel which immediately dived into the fundamentals, namely, the pros and cons of the existing investor-state dispute settlement system (ISDS). The range of the critique was broad spanning from essentially leaving it to arbitral tribunals to find the right balance, over possi [...]
In one of the very rare decisions issued by courts in the Arab world applying the provisions of the Unified Agreement for the Investment of Arab Capital in the Arab States (the “UAIAC”), the Cairo Court of Appeal has revived in its decision dated February 5, 2014, the principle of finality of arbitration awards, by which it rejected a claim for annulment of a UAIAC award, filed by the State of Libya (first claimant to annulment), the Libyan ministries of Economy and Finance (second and third claimants) and the General Authority for encouraging investments (fourth claimant), against a kuwaiti investor, Al-Kharafi & Sons Co. (case n° 39, judicial year 130/2014). The ratio decidendi of the cou [...]
Paraphrasing Churchill, investment arbitration is the worst form of foreign investment dispute resolution, except for all the others. Post-Suez, governments are more civilised than to employ gunboat diplomacy for their own investors, and local courts are inherently partial. Achieving neutrality is the objective, and the only means: investment arbitration. This is the conventional wisdom for rationalising the use of arbitration for foreign investment disputes.
Investment arbitration is imperfect. An oft-cited cause of this imperfection is doctrinal inconsistency, with an ICSID appellate body being trumpeted as the antidote. Partiality of arbitrators, propensity to annul decisions, and la [...]