As states explore options to reform investment treaties and investor-state dispute settlement (ISDS), they can draw on a growing body of grounded perspectives about how the system works in practice and how it is experienced by those involved in or affected by investment disputes. The Tribunal, a documentary film directed by Malcolm Rogge in collaboration with the Columbia Center on Sustainable Investment (CCSI), offers a powerful illustration of the ways in which ISDS can impact third parties, exacerbate inequalities, and reinforce power imbalances. In the Spring of 2022, Rogge travelled to the Intag Valley, Ecuador, to film a sequel to his 2008 documentary on a complex investment dispute around a copper mining project. The new film sheds light on how local actors experienced their exclusion from ISDS proceedings. Their perspectives provide distinctive insights for policy processes aimed at reforming ISDS, such as UNCITRAL Working Group III on ISDS Reform. The Copper Mesa v. Ecuador dispute At the centre of the new…
International Investment Law
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The Mandate Conundrum: Reflections on the 46th Session of the UNCITRAL Working Group III on ISDS Reform
The UNCITRAL Working Group III convened in Vienna between 9 and 13 October 2023 for its 46th session to discuss the establishment of an advisory centre on international investment law, which would be tasked to provide legal and technical assistance in connection with investor-State disputes. In addition, it would tackle a number of…
Shoehorning Substance into a Procedural Mandate? The Right to Regulate and UNCITRAL Working Group III
This post addresses Draft Provision 12, on ‘Right to Regulate’, in the recent ‘Draft Provisions on Procedural and Cross-Cutting Issues’ that were published by the UNCITRAL Secretariat in late July and will be discussed at UNCITRAL Working Group III’s next session in October 2023 (A/CN.9/WG.III/WP.229 [11]). The Draft Provisions have been ‘prepared…
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…
Sovereign White Knights: Defensive State-Capitalism as a Gate Keeper of (EU) Economic Security?
Geopolitical considerations have been creeping into corporate and international economic laws. Faced with rapidly increasing inbound foreign direct investment by corporations from competing economies, many countries have either strengthened existing, or developed new, investment screening mechanisms. These mechanisms enable host country governments to decide whether to admit foreign investment, and if so, whether conditions should be…