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TTIP: The French Proposal For A Permanent European Court for Investment Arbitration

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen.

On 2 June 2015, the French Minister of Foreign Trade, Matthias Fekl, submitted to the European Commission a proposal regarding the Investor-State dispute settlement (ISDS) mechanism included in the project for a Transatlantic Trade Investment Partnership between the US and the EU (TTIP). The French Proposal is one further addition to the hot debate on the issue.

The French proposal purports to address the main causes of public mistrust towards investor-State arbitration: the alleged restriction of States’ general regulatory power, conflicting awa [...]

The Emerging Harmonization of the International Investment Law Regime

Given the existence of thousands of international investment agreements, the international investment law regime has been described as “complex and confusing,” “highly fragmented,” and “characterised by overlaps and incoherence”.

Two key developments, however, are contributing to the harmonization of that regime. First, a set of major agreements is being negotiated by many of the world’s largest economies, which, if completed, will cover a very significant share of global investment. Second, given the recent treaty practice of the States participating in those negotiations, that set of major agreements likely would include relatively consistent approaches to some of the most ch [...]

Brazil’s New Investment Treaties: Outside Looking … Out?

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 [...]

From Ford to Ferrari? A Brief Look at the Changes Introduced in the Draft Model Indian BIT

Introduction

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 [...]

A Question of Democracy: The German Debate on International Investment Law.

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

A [...]

EU Law and Investment Law: Two Worlds Apart?

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 [...]

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