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Interpreting Investment Treaties

One of the recurrent controversial issues in the investment arbitration practice relates to the application of the general rule of treaty interpretation of the Vienna Convention on the Law of Treaties in the interpretation of the provisions of the ICSID Convention and of investment treaties in general.

Thomas Wälde in one of his last writings pointed out that “[t]ribunals often do not practise what they preach; reference to the Vienna Rules is now mandatory, but such reference does not mean the Rules are taken and applied seriously” and “it is difficult to find a tribunal which formally and properly applied the Vienna Rules step by step” (Interpreting Investment Treaties: Experience [...]

Making a Muddle of Moral Damages

Let’s get this straight: When awarded to persons, including foreign investors, moral damages are compensatory in nature. They are not discretionary. They are not symbolic. They are not exemplary. They are not punitive. Rather, as the commentary to the ILC Draft Articles 36 and 37 on State Responsibility notes, “[c]ompensable personal injury encompasses not only associated material losses . . . but also non-material damage . . . (sometimes, although not universally referred to as ‘moral damage’).” Put differently, “[m]aterial and moral damage resulting from an internationally wrongful act will normally be financially assessable and hence covered by the remedy of compensation.” A [...]

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 [...]

The “Anti-ISDS Bill” before the Australian Senate

Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration). India announced a review in 2013, partly in the wake of the successful claim from an Australian mining investor, although the impact in practice is hard to discern or predict – especially under the new Modi government. In both countries, the reviews may also have been linked to domestic politics during election years.

More surprisingly, public debate over ISDS has resurfaced in Australia. For the political left, it really began when Philip Morris Asia announced in 2010 that it would claim under a 1992 treaty with Ho [...]

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