Shan & Gallagher: Chinese Investment Treaties: Policies and Practice

Wenhua Shan (Xi'an Jiatong Univ. - Law) & Norah Gallagher (Herbert Smith LLP) have published Chinese Investment Treaties: Policies and Practice (Oxford Univ. Press 2009). Here's the abstract:

China's success in attracting foreign direct investment (FDI) in the last decade is undisputed, and unprecedented. It is currently the second largest FDI recipient in the world, a success partially due to China's efforts to enter into bilateral investment treaties (BITs) and other international investment instruments. The second title to publish in the new Oxford International Arbitration Series is a comprehensive commentary on Chinese BITs.

Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Given the continuous growth of FDI in China, the emergence of state-investor disagreements in China and the dramatic rise of investment treaty based arbitrations world wide in recent years, it is anticipated that there will be an increasing number of investment arbitrations involving the central and local governments of China. This book will provide a detailed review and analysis of China's approach to foreign investment. It will consider the current role of investment treaties in China's foreign economic policy, analyse and interpret the key provisions of the BITs, and discuss the future agenda of China's investment programme. It will look at how this investment regime interconnects with the domestic system and consider the implications for a foreign investor in China.

Amerasinghe: Jurisdiction of Specific International Tribunals

Chittharanjan F. Amerasinghe (formerly, Judge, UN Administrative Tribunal) has published Jurisdiction of Specific International Tribunals (Martinus Nijhoff Publishers 2009). Here's the abstract:

This volume examines the jurisdiction, both contentious and advisory, of the ICJ as a specific permanent international court or tribunal but also brings together in one book the examination of the jurisdiction of certain other tribunals, not excluding most of the other four tribunals or groups of tribunals examined in Jurisdiction of International Tribunals by the same author. Material relating to them is expanded, re-examined and brought up to date. Hence, This volume covers the jurisdiction of: (i) the World Court, i.e., the ICJ and PCIJ — both contentious and advisory jurisdiction, (ii) the leading International Administrative Tribunals, (iii) the ECHR, (iv) ICSID tribunals, (v) the WTO Panels and Appellate Body, and (vi) the ITLOS. The six systems for the judicial settlement of disputes chosen to be examined in this work are by far the most important in the modern era and deserve close attention.

Weiler: Investment Treaty Arbitration and International Law

T.J. Grierson Weiler has published Investment Treaty Arbitration and International Law (Juris Publishing 2008). Contents include:

• T.J. Grierson Weiler, Introduction
• Craig S. Miles, Where’s My Umbrella? An “Ordinary Meaning” Approach to Answering Three Key Questions that Have Emerged from the “Umbrella Clause” Debate
• Laura Halonen, Containing the Scope of the Umbrella Clause
• Craig Miles, Laura Halonen, Andrea J. Menaker, Kaj Hober, Thomas Walde, Graham Coop, & Uche Onwuamaegbu, Panel Discussion: Where's My Umbrella? A Look Inside The Umbrella Clause
• Devashish Krishan, A Notion of ICSID Investment
• Anthony C. Sinclair, ICSID’s Nationality Requirements
• Devashish Krishan, Anthony C. Sinclair, Charles H. Brower, II, David D. Caron, William W. Park, Christoph Schreuer, & Pieter H.F. Bekker, Panel Discussion: Are the ICSID Rules Governing Nationality & Investment Working?
• Gabriel Bottini, Protection of essential interests in the BIT era
• Roberto Aguirre Luzi, BITs & Economic crises: Do States have carte blanche?
• Gabriel Bottini, Robert AguirreLuzi, David R. Haigh, Margrete Stevens, Andrea K. Bjorklund, Marinn Carlson, & Alex De Gramont, Panel Discussion: Is There a Need for the Necessity Defense For Investment Law?
• Noah Rubins, MFN Clauses, Procedural Rights, and a Return to the Treaty Text
• Walid Ben Hamida, MFN and Procedural Rights: Solutions from WTO Experience?
• Noah Rubins, Todd J. Grierson Weiler, Carolyn B. Lamm, Charles N. Brower, Don Wallace, & Michael Woods, Panel Discussion: MFN Treatment - What Are Its Limits In The Investment Context?
• Borzu Sabahi, National Treatment – Is Discriminatory Intent Relevant?
• Sylvie Tabet, Beyond the Smoking Gun – Is a Discriminatory Objective Necessary to Find a Breach of National Treatment?
• Borzu Sabahi, Sylvie Tabet, Ian A. Laird, Stephen Jagusch, Todd J. Grierson Weiler, Gonzalo Flores, & Jack J. Coe, Jr, Panel Discussion: National Treatment – Is Discriminatory Intent Relevant?

Conference: Investment and Commercial Arbitration - Similarities and Divergences

This year's Vienna International Arbitration Forum will take place November 21, 2008, at the University of Vienna Law School. The topic is "Investment and Commercial Arbitration - Similarities and Divergences." The program is here.

Dugan, Wallace, Rubins, & Sabahi: Investor-State Arbitration

Christopher Dugan (Paul Hastings, Janofsky & Walker LLP), Don Wallace, Jr. (Georgetown Univ. - Law), Noah Rubins (Freshfields Bruckhaus Deringer), & Borzu Sabahi (Georgetown Univ. - Law) have published Investor-State Arbitration (Oxford Univ. Press 2008). Here's the abstract:

The increasing importance of international investment has been accompanied by the rapid development of a new field of international law that defines the obligations of host states towards foreign investors and creates procedures for resolving disputes in connection with those obligations. Investor-State Arbitration examines the international treaties that give investors a right to arbitration of claims, the most-commonly employed arbitration rules, and the most important elements of investor-state arbitration procedure - including tribunal composition, jurisdiction, evidence, award, and challenge of annulment. Expert coverage includes procedural barriers to recovery, analysis of the substantive law of investment protection, and analysis of recent investor-state arbitral jurisprudence.Investor-State Arbitration traces the evolution and rapid development of this important field of international arbitration, resulting from the formation of the International Center for the Settlement of Investment Disputes (ICSID) and the more than 2,000 bilateral investment treaties, most of which have originated in the last twenty years. This development has led to far greater certainty for foreign investors in dealing with their host countries and has incentivized growth in international trade and commerce. Through arbitration, investors who have been negatively affected by the acts of a host country, such as, for example, the expropriation of property, now have a fair means of redress.

Investor-State Arbitration analyzes the rights of private parties under these treaties to arbitrate disputes with countries, the arbitration rules most commonly employed in investor-state disputes, the important elements of substantive law and procedure, the enforcement of awards (including annulment proceedings under ICSID), current developments, including conflict and convergence of interests in capital-importing and capital-exporting countries, restrictions on state sovereignty, analysis of recent investor-state arbitral jurisprudence, and, finally, the emergence of an international investment jurisprudence.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 22, no. 1, Spring 2007) is out. Contents include:

• Abby Cohen Smutny, Some Observations on the Principles Relating to Compensation in the Investment Treaty Context
• Jean Kalicki & Suzana Medeiros, Fair, Equitable and Ambiguous: What Is Fair and Equitable Treatment in International Investment Law?
• Antonio R. Parra, The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes
• Anne K. Hofmann, The Investor's Right to Waive Access to Protection under a Bilateral Investment Treaty

Burke-White: The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System

William W. Burke-White (Univ. of Pennsylvania - Law) has posted The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System (Asian Journal of WTO & International Health Law and Policy, Vol. 3, no. 1, pp. 199-234, March 2008). Here's the abstract:

With an extraordinary increase in the number of BITs and the development of the ICSID allowing direct investor-state arbitrations of alleged violations of BITs, international investment law has expanded tremendously over the past two decades and afforded investors with unprecedented protections. This contributed to the initiation of more than forty ICSID cases against Argentina for its measures taken in response to the 2001-2002 financial crises. Among them, four cases decided by early 2008 are of particular significance, in part because of ICSID Tribunals' treatment of Argentina's claims of treaty-based NPM and the necessity principle under customary international law. As analyzed in this article, the resulting jurisprudence is deeply problematic: not only is the reasoning seriously flawed, but the four ICSID Tribunals' rulings also lack consistency even in the face of identical factual circumstances. In turn, this poses a serious challenge to the legitimacy and viability of the BIT regime and the ICSID system more generally, and hence a deep rethinking of various proposed solutions is urgently needed to restore confidence in the system.

Burke-White: The Argentine Financial Crisis: State Liability Under BITs and the Legitimacy of the ICSID System

William W. Burke-White (Univ. of Pennsylvania - Law) has posted The Argentine Financial Crisis: State Liability Under BITs and the Legitimacy of the ICSID System. Here's the abstract:

This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under which these cases have been brought. The essay critiques this line of jurisprudence and suggests that the September 2007 Report of the Annulment Committee in the case of CMS v. Argentina may be read as an effort from within the ICSID system itself to question the legitimacy and structure of current investor-state arbitration.

Cross: Arbitration as a Means of Resolving Sovereign Debt Disputes

Karen Halverson Cross (John Marshall Law School in Chicago) has posted Arbitration as a Means of Resolving Sovereign Debt Disputes (American Review of International Arbitration, forthcoming). Here's the abstract:

In September 2006, a group of Italian holders of Argentine defaulted debt submitted a request for arbitration to the International Centre for Settlement of Investment Disputes (ICSID), claiming that Argentina's actions in connection with debt issued by it and held by the Italian claimants breached Argentina's obligations under a bilateral investment treaty (BIT) between Argentina and Italy. Although arbitration of sovereign debt disputes is not unprecedented, it is unusual. Contracts with sovereign debtors typically provide, not for arbitration of disputes, but rather submission to the jurisdiction of courts of the creditors' choosing.

This article considers several questions. The narrow question, which is implicated by the Italian bondholders' claim, is whether ICSID has jurisdiction to resolve a dispute brought by holders of defaulted sovereign debt pursuant to a BIT. The more general question, however, is why the Italian bondholders are attempting to invoke arbitration rather than litigating the dispute in New York court. This article suggests that in the sovereign debt context, arbitration is potentially a more attractive dispute resolution mechanism than litigation. The persistent absence of arbitration clauses from sovereign debt contracts may be attributable to the lock-in effects of standardized contract terms, and not to the relative merits of arbitration versus litigation.

Ecuador's Notification Pursuant to Article 25(4) of the ICSID Convention

On December 4, 2007, the Secretary-General of ICSID received a notification under Article 25(4) of the ICSID Convention from the Republic of Ecuador. Article 25(4) of the Convention provides that a "Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre." Ecuador's notification indicated that it would not consent to ICSID arbitration of disputes pertaining to investments in natural resources, such as oil, gas, and minerals. Ecuador had recently enacted a royalty tax on hydrocarbon investments, and it clearly envisages challenges to that law. Ecuador's actions are part of a wider dissatisfaction among some Central and South American countries with international investment law and particularly its dispute settlement regime. Bolivia, for instance, withdrew from the ICSID Convention earlier this year, and Venezuela and Nicaragua have also indicated that they may do the same. Ecuador has threatened to revise certain bilateral investment treaties as well.