On 27 June 2024, the tribunal in the investment dispute Seda v Colombia delivered a long-awaited award. The decision, hailed by Colombia as ‘historic’, represents the first publicly available award where an investment tribunal accepted the ‘self-judging’ character of a provision within an investment agreement. Additionally, it is the first public award to dismiss an entire claim based on the invocation of a security exception (though see the partially successful invocation in Devas v India and the unpublished Tenoch v India). After briefly outlining the facts, this post analyses the tribunal’s detailed engagement with the issue of self-judgment. It argues that a lasting significance of the award will lie in the fact that the tribunal conducted any review at all, despite the provision being framed as what I describe as a ‘reinforced self-judgment’ clause.
Bilateral Investment Treaties
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Dual Nationals in Investment Treaty Arbitration: An Emerging Field of Inconsistent Decisions
Introduction Nationality is a crucial marker for protection in international investment law. Only investors that qualify as nationals of a contracting party can access investment treaties. Most investment treaties, however, are premised on broad provisions defining eligible nationals. With respect to individuals, these instruments typically define protected investors as physical persons who hold the nationality…
ISDS reform and air guitar: A response to Grant and Kieff
In issue 2020(2) of EJIL, we published an empirical study concerning the public perception of investment arbitration. Our article presents the results of four experiments that we conducted to assess which factors mostly affect the public acceptance of investor-State dispute resolution outcomes. In our study we tested a number of possible factors that influence public…
New Options for Investor Accountability in ISDS
ISDS emerged in the twentieth century to empower foreign investors to assert legal claims against host states without the intervention of their home state. But this understanding of international investment law (IIL) – investor rights and host state duties – is now a relic of the past. Yet because of their current asymmetrical nature, ISDS and IIL do…
Nottebohm Under Attack (Again): Is it Time for Reconciliation?
Introduction The Nottebohm judgment has recently come under attack in the context of the European Commission’s position on investment by citizenship (CBI) schemes, also known as “golden passport” programmes. These schemes allow individuals to obtain a second citizenship in a host country in exchange for financial investments or even just a flat fee. On 20…
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