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Over the last decade, Investor-State Dispute Settlement (ISDS) has been the most controversial issue in international investment law and policy. This paper is not intended to take sides with any position on the multiple dimensions of the ISDS debate. Instead, this note only attempts to examine and summarize the empirical evidence available which may be useful to foster a more factual and objective discussion on this controversial topic. To achieve this objective, this note will empirically assess the use of ISDS between 1987 and 2017 by focusing on eight key questions: (i) the number of ISDS disputes; (ii) the most commonly used arbitration rules, venues and arbitrators; (iii) the features of the parties involved in disputes -both investors and States; (iv) the investment protection guarantees most frequently invoked by investors and the most frequently recognized by tribunals; (v) the economic sectors in which ISDS tends to concentrate, (vi) the outcomes of the disputes, (vii) the performance of the ISDS procedures in terms of time and cost, and (viii) the frequency of ISDS relative to State-to-State investment dispute settlement. This evidence summarized in this paper shows that ISDS is a manifestation of deeper and more complex political economy in the relationship between foreign investors and host States. The debate on ISDS has deviated the attention from a more critical issue. That is, the significant number of cancellations or total withdrawal of investment projects in developing countries and economies in transition that never reach ISDS, and yet entail the same type of grievances that IIAs are supposed to prevent. This finding suggests that in practice, in many countries the principles and disciplines included in IIAs are not being fully implemented nor mainstreamed within regular administrative action at different levels of government. [ABSTRACT FROM AUTHOR]

ICSID has advised all 153 of its Members that it is beginning the process to further update the ICSID rules and regulations. One such amendment to be considered is whether the ICSID Arbitration Rules should include an express provision concerning a security for a stay of enforcement of awards. A background paper to the preparation process for these amendments explained this specific proposal as the following: 'Similar to security for costs, parties might be assisted by an express rule addressing when an ad hoc committee could order security on a stay of enforcement of awards.' 2  By reviewing the ICSID jurisprudence concerning the stays of enforcement pending annulment, including specific jurisprudence focusing on orders of security, this article will endeavour to determine whether parties would be assisted by an express rule and, if so, what that express rule should be. This article will start with a short introduction to continued stays of enforcement (Section I), followed by a review of the trends in ICSID jurisprudence on stays of enforcement (Section II). For the sake of comparison, this article will also briefly discuss trends for stays of enforcement in the non-ICSID context (Section III). This article will then review the approaches of ad hoc committees exercising their discretion to issue a stay of enforcement subject to a condition or provision of security (Section IV). Finally, the article will analyse the 'assistance' that an express rule for ordering a security on a stay of enforcement could provide (Section V). [ABSTRACT FROM AUTHOR]

The growth in the number of investment treaties and investment treaty arbitrations has led to a lively debate about the benefits, justification, and problems of this special form of protection for foreign investors. This paper makes the positive case for understanding international investment law as an instrument for the depoliticization of conflicts that at times had led to fierce confrontations between home and host States of investors. Depoliticization means the transfer of such conflicts from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. First, this article addresses the goals of investment arbitration in this context. Second, it discusses the means provided for in the ICSID Convention and in investment protection treaties in their various forms to achieve these goals. Furthermore, it analyses how different investment protection instruments achieve different degrees of depoliticization. Third, it discusses whether investment treaties have been successful in providing judicial means to prevent investor-State conflicts developing into inter-State conflicts, which are dominated by power politics. [ABSTRACT FROM AUTHOR]

The article discusses the decisions on the respondent's objection under rule 41(5) of the International Centre for Settlement of Investment Disputes (ICSID) arbitration rules. It presents information on two ICSID cases Trans-Global Petroleum, Inc. v. Hashemite Kingdom of Jordan, and Brandes Investment Partners, LP v. Bolivarian Republic of Venezuela which have survived challenges under the rule 41 (5). Information on the review standards, applications and scope of rule 41 (5) is presented.

In order to lay the foundation for the papers that follow in this collection, this article explores the key policy choices underpinning the design of the ICSID arbitral system and the drafters' assumptions and expectations as to how the system that they were designing would work in practice. It focuses in particular on the drafters' choices in regard to the review and enforcement of awards and how the future Convention might be employed to arbitrate disputes not only under investment contracts but under investment treaties as well. These choices shaped the main features of ICSID arbitration. Notably, the Convention's drafters recognized and accepted the prospect of inconsistent arbitral decision-making and outcomes, but deemed it impractical to attempt to create a standing tribunal, and they rejected a number of proposals for a right of appeal for error of law or substantial error of fact. The implications of this and other key drafting decisions were discovered and fleshed out in hundreds of cases brought under the Convention and in different generations of investment treaties as a result of which States gained greater experience with the investment treaty arbitration system. The choices made over fifty years ago have shaped the recent push for a standing tribunal and an appellate review mechanism. [ABSTRACT FROM AUTHOR]

This article analyses impartiality in investor-State dispute settlement (ISDS) by identifying the way that the parties' trust in arbitrators is constructed. Drawing on the findings of a large-scale empirical project, it questions the applicability of an orthodox judicial doctrine of impartiality to ISDS on the grounds that trust in arbitrators is constructed on a fundamentally different basis from that of trust in judges. The primary feature of a judicial doctrine of impartiality is that trust is founded on an absolutist approach to impartiality which is intended to ensure that judges have no predispositions to parties. In contrast, trust in ISDS is founded on the method of party appointment which is based on a very different assumption—that arbitrators' predispositions can be valuable and appropriate in the decision-making process. The empirical findings show that the parties' choice of a predisposed arbitrator is generally considered compatible with the understanding of impartiality in ISDS. Accordingly, this article calls for a new, and contextualised, approach which better corresponds to the fundamental value of trust in ISDS. [ABSTRACT FROM AUTHOR]

The article addresses the recent trends in investment arbitration, focusing on the evolution of international investment agreements from the perspective of the right of the States to regulate in public interest, as well as of the provisions concerning environment, health, and corporate social responsibility. These issues have been chosen because they highlight areas where the tension between sovereign and private interests is evident, as well as where States often face resistance in implementing public policy. Furthermore, the discussion is opportune as the mandate entrusted to the UNCITRAL Working Group III concerned with investor-State dispute settlement reform is limited to procedural aspects of such reform, leaving to the discretion of the States, as treaty-makers, the regulation of the substantive issues concerning foreign investments. The analysis of the international investment agreements concluded between January 2018 and December 2020 demonstrates that treaty language is constantly evolving to protect and expand the scope of States' regulatory autonomy. The article concludes that investor-State dispute settlement remains the framework in which environmental, human rights and corporate social responsibility obligations can be smoothly integrated within the international investment law, allowing both States and investors to take advantage of and be held accountable for their respective obligations. [ABSTRACT FROM AUTHOR]

The article discusses the dismissal procedure contained in Arbitration Rule 41(5) regarding the International Centre for Settlement of Investment Disputes (ICSID) used by international courts which influence the commercial arbitration. It mentions that screening power of the Secretary-General of ICSID under Article 36(3) of the ICSID Convention and the assessment of the potential importance of Arbitration Rule 41(5) for future ICSID proceedings.

It seems fair to say that the system of investor-state dispute settlement (ISDS) now faces something of a 'legitimacy crisis'. States complain of what they perceive to be an unjustified encroachment into their regulatory space. Investors bemoan the fragmentation of investment law. And the public resents the fact that an anonymous panel of lawyers sitting behind closed doors are making decisions with significant implications for their well-being and livelihoods through a process in which they are neither seen nor heard. These criticisms of ISDS raise serious questions as to the adequacy of the procedural design of the ISDS system and how this might be affecting perceptions of ISDS's legitimacy as a means of dispute resolution. It is suggested that ISDS's legitimacy crisis can be traced, at least in part, to its failure to uphold certain core values and principles of the Rule of Law – in particular, transparency, accountability and consistency – which are of especial importance in the ISDS context. It is argued that the reason why investment arbitration struggles to uphold these values lies in the dissonance between the public face of ISDS – meaning the public nature and significance of investment disputes – and its private face – meaning the private arbitral process by which investment disputes are resolved. Efforts at reform should be directed at resolving that dissonance, and whilst there is much to commend an incremental reform of the system of arbitration, it seems clear that that can only be an interim step on the path to deeper process reform. [ABSTRACT FROM AUTHOR]

Investor-State tribunals are equipped with lis pendens , res judicata , abuse of process, and adverse cost orders to ensure that parties are not twice vexed for the same issue or to minimize the harm from multiplying action. When abuse of process is applied to a parallel or successive arbitration, it is considered whether the later action could have been joined, consolidated or coordinated with an earlier one and whether there is a reasonable basis for bringing a separate action. The good faith question surrounds the accused's intent or purpose, which can be measured subjectively if there is an intent to harm or objectively in the absence of reasonable basis. Raising the question of abuse thus involves asking whether the accused acted in good faith. But where lis pendens and res judicata do not apply, there is a colorable basis for the claim and sensible grounds for advancing with separate proceedings, the claimant is within right to bring further action. The good faith element of abuse reaches the middle ground between the claimant's interest in accessing the arbitral forum and the respondent's interest in being free from vexation. [ABSTRACT FROM AUTHOR]

This lecture surveys the criticisms directed at international investment agreements (IIAs) and their reliance on investor-State dispute settlement (ISDS), as well as the leading reform venues that have been addressing such criticisms: UNCTAD, ICSID, and UNCITRAL. It argues that despite these ambitious efforts, the international investment regime's reliance on investor-State arbitration will not be wholly displaced by any of the alternatives under active discussion – from national courts to mediation to a Multilateral Investment Court. In the long run, current reform efforts are likely to produce an ever more complex regime, governed by more diverse substantive rules interpreted by more complex options for dispute resolution. The focus on reforming the ways investor-State disputes are resolved fails to respond to doubts about the need for IIAs, undermines aspirations to harmonize international investment law, and ignores dire needs for stimulating (and protecting) foreign capital flows to achieve the goals of the Sustainable Development Goals – from mitigating climate change to preventing the next pandemic. [ABSTRACT FROM AUTHOR]

Through design of international investment agreements, foreign investors may bring international claims against the States in which they invest, challenging domestic executive and regulatory measures, including those related to the environment and sustainable development. In contrast, host States are usually limited to defending claims brought against them. The capacity for a host State to bring an independent counterclaim has been tested in only a handful of cases, some of which involved environmental considerations. This article considers those cases and the potential for counterclaims to help enforce national and international objectives related to the environment. It does so by setting out the legal framework for counterclaims by host States, analyzing how jurisdiction, admissibility and causes of action involving environmental obligations under domestic and international law may be satisfied, and the attendant consequences for liability and compensation. It then considers the implications of counterclaims for future investment disputes, given the rapid development of international and domestic environmental law and policy, especially in the context of corporate governance, climate change and the United Nations Sustainable Development Goals. [ABSTRACT FROM AUTHOR]

Passive investments are a phenomenon in investment treaty arbitration. Arbitral jurisprudence is divided over the eligibility of investments represented by claimants who played little or no part in their establishment or nurturing for treaty protection. This note attributes the emergence of passive investments as a category of protected investments to a jurisdictional loophole present in the vast majority of investment treaties. It then considers the extent to which this loophole can be addressed by 'denial of benefits' clauses in applicable treaties, by reading an 'action of investing' jurisdictional condition into applicable treaties, and by the award of nominal damages when a claim arising from a passive investment prevails on the merits. This note concludes that so long as investment treaties continue to hold sway as regulatory tools, passive investments, for better or for worse, are protected investments. [ABSTRACT FROM AUTHOR]

The intersection between foreign investment and human rights is gaining attention, as is evident from an increasing number of investment treaty awards analysing legal issues relating to human rights. In the recent International Centre for the Settlement of Investment Disputes (ICSID) arbitration of Bear Creek v Peru , Philippe Sands QC posited, in a dissenting opinion, that the investor's contribution to events—ie protests against its allegedly adverse environmental impact and disregard of indigenous rights, namely resulting from its 'inability to obtain a "social licence"'—which led to the unlawful expropriation of its investment, was 'significant and material'. He further noted that the investor's 'responsibilities are no less than those of the government' and found that damages should thus be reduced. Last year, the Netherlands adopted a new model bilateral investment treaty (BIT), which allows tribunals to 'take into account non-compliance by the investor with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises' when assessing damages. These recent developments shed light on how states and tribunals, as part of their decision-making process, can take into account human rights in practice, and crucially in respect of damages analyses. By first dissecting the concept of contributory fault, then shedding light on the intersection of investment treaty law and human rights, as elucidated in recent jurisprudence, this article questions whether there now exists a gateway for human rights obligations (soft or hard) in the investment treaty arbitration realm through the concept of contributory fault. [ABSTRACT FROM AUTHOR]

Joint interpretation clauses (JICs) are among the most controversial control mechanisms on the interpretative powers of tribunals brought by the current wave of reform of the investor–State dispute settlement system (ISDS). Literally proliferating in the new generation of international investment agreements (IIAs), these clauses give contracting States the power to issue joint interpretations (JIs) that are expressly recognized as binding upon dispute settlement bodies and may even be issued in relation to matters pending before such bodies. This article discusses several issues raised by the 'authentic interpretation' enhanced by JICs. In the first part, JICs are assessed against the background of the general rule on treaty interpretation, including, in particular, subsequent agreements under article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties. The second part of the article addresses the tensions between judicial bodies and treaty parties sharing the interpretative authority over IIAs and investigates whether there are any limitations on the interpretative powers of States under JICs. The third part is devoted to the impact of JIs on the proper conduct of investment arbitration proceedings, considering the participation of private actors (the investors) in the proceedings and the 'dual role' of States (as treaty parties and respondents) in this field. The concluding part of the article speculates whether a greater institutionalization of the international investment regime is likely to prompt more frequent forms of judicial reactions against 'ill-perceived' JIs and fuel the tension between States and dispute settlement bodies. [ABSTRACT FROM AUTHOR]

Investment treaty arbitration is currently undergoing a backlash, precipitated in large measure by the problem of inconsistency in investment awards. Inconsistent reasoning and decisions have proved particularly problematic when different shareholders of an affected company pursue claims for reflective loss before different tribunals concerning the same dispute. This article examines two recent investment treaty cases— CC/Devas v India and Deutsche Telekom v India —that are a critical example of this very real problem. The first part of this article assesses the inconsistent interpretation and application of essential security interest clauses in those cases. As this article shows, the disagreement between the tribunals is explained by contradictory assessments of the same facts. The second part critically evaluates the impact of the two cases on the development of the precise criteria for successfully invoking an essential security interest clause. Such clauses comprise two elements: (i) the existence of such an interest; and (ii) the nexus between the interest and the measure adopted. These elements have hitherto been subject to inconsistent interpretations, leaving the exact contours of such clauses unclear. This article uncovers which security interests can qualify as 'essential' interests, focusing particularly on the question whether such an interest encompasses protection of strategic resources for military and non-military use. It also examines the meaning of the nexus requirement of 'necessary', and explores the difference(s) between the nexus requirements of 'directed to' and 'necessary'. [ABSTRACT FROM AUTHOR]

Investment treaty arbitration tribunals rely on arbitral precedent as a principal source for rules of international law. Orthodox international legal doctrine, however, denies that the rulings of earlier tribunals may serve as a source of that law. This article examines the implications of this apparent contradiction. It concludes that investment treaty tribunals rely on precedents principally to legitimize their decisions, which may otherwise appear to rest on the arbitrators subjective interpretations of the highly indeterminate terms of investment treaties. More significant reasons for tribunal reliance on arbitral precedent may be found in the nature of international law itself and its relationship to international institutions, in particular: the lack of effective international legislative and judicial institutions with authority to promulgate primary rules of international law; the positivist premises of orthodox international legal doctrine; and the inductive reasoning used in the identification and application of rules of customary international law. [ABSTRACT FROM AUTHOR]

There is a sharp divide between investment arbitration practitioners on the permissibility of using ex post or hindsight information in the valuation of damages. Ex post information comprises facts that arise after the date of breach or submission of the dispute to arbitration but before the tribunal reaches its quantum award. Faced with real facts that show a glaring discrepancy between the hypothetical value of the investment and the real present-day value, it is understandably difficult for tribunals to ignore the real facts before them. Both options seem like an injustice: to award a windfall sum that is significantly larger than the investor would have earned from the investment otherwise or to award a paltry sum significantly smaller than the investor would have earned according to the parties' expectations at the time of the breach. Does customary international law permit factoring ex post information into an investment valuation? This article shows that the latest Quiborax v Bolivia decision and dissenting opinion is not the first tribunal to have dealt with ex post information. The principles in Chorzów Factory will be carefully analysed to light the way to a clear and reasoned approach to taking into account ex post information in investment valuations. [ABSTRACT FROM AUTHOR]

By design, investor-State arbitration affords no possibility of review for errors of law for arbitral awards rendered under the ICSID regime, and rarely pursuant to judicial review for non-ICSID processes. The long-standing 'one-kick-at-the-can' nature of international arbitration has generated concerns from some critics, which in turn have coalesced into a call for the creation of a centralized appellate review mechanism. Establishing an appellate body is seen by some commentators as a way to resolve inconsistencies in how similar and identical points of law are interpreted and applied. While investor-State dispute settlement (ISDS) has grown rapidly, the field is still nascent in many respects, and concerns about its legitimacy, efficacy, and long-term sustainability could endanger its future. The article presents a comprehensive review of the factors that have driven the pressure to create one or more appeals facilities to review arbitral awards for errors of law and fact. The discussion highlights the ways in which States have sought to remedy perceived problems or uncertainties in the ISDS system through a recent shift towards more detailed treaty-drafting. Better drafting will, it seems, inevitably lessen the risk of tribunals getting it 'wrong' on the law. Interestingly, for many proponents of an appeals mechanism, like the EU in its recent treaties with Canada and Vietnam, appellate review is but one part of a broader package of reforms that ought to be introduced in order to address a host of criticisms against the current system, including: the alleged problems with the constitution of tribunals (in particular, the tradition of party-appointed arbitrators and the lack of transparency and common understanding as to what is appropriate behaviour of parties and arbitrators when it comes to appointing a presiding arbitrator and deliberations); conflicts of interest for counsel and arbitrators; the alleged lack of arbitrator independence in comparison to tenured judges; perceived commercial incentives for arbitrators seeking further appointments, and how those might influence their exercise of judgment; skeletally drafted and generally worded treaty provisions that confer broad discretion on arbitrators; and, finally, how tribunals conceive of their role in evaluating State determinations of the public interest. [ABSTRACT FROM AUTHOR]

The article focuses on the inter-State dispute settlement and choosing between arbitration and judicial settlement for the settlement of same. Topics discussed include proposals for the creation of permanent investment courts; choice of the parties to a dispute between the different forums; and International Court of Justice statues.

An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in judicial or similar proceedings. Such privileges are readily recognized in common law jurisdictions, as a response to intrusive disclosure, but they are less necessary in civil law governed proceedings. Investment treaty arbitration tends to follow the common law approach to disclosure and therefore evidentiary privileges are relevant. Investment treaties and institutional arbitration rules are typically silent on evidentiary privileges, but their application is recognised in the IBA Rules on Evidence. A review of awards shows that issues relating to evidentiary privileges do arise regularly in investment treaty arbitrations, especially claims by States that certain documents contain state secrets. Tribunals may be required to choose between two or more potentially applicable privileges found in national and international practice, so called ’conflict of privileges’. This article addresses: (i) the powers of international investment treaty tribunals to determine evidentiary issues; (ii) the choice of evidentiary privileges; (iii) legal professional privilege; (iv) settlement privilege; (v) political sensitivity; and (vi) waiver. [ABSTRACT FROM AUTHOR]

This article considers how the UNCITRAL Rules on Transparency and UN Convention on Transparency alter the structure of international investment arbitration, as well as its relationship with other regimes of international law. The article provides an overview of how transparency was regulated prior to the advent of the Rules and Convention, their structure and coverage, and their impact thus far (Section II). The article then considers their implications. Section III illustrates how the Rules and Convention effect a fragmentation of international arbitration through their distinction between investment treaty arbitration and other forms of arbitration. That Section furthermore highlights how the Rules and Convention reflect, and may prompt, a growing convergence of investment treaty arbitration and how they promote its linkage to other regimes of public international law. Section IV considers how the Rules and Convention modify the underlying structure of investment treaty arbitration, controlling disputing party and arbitral discretion to shift the structure of arbitration from a private form of dispute settlement to a more public form that takes into account external interests and participants. Section V examines the motivations prompting the development of the Rules and Convention, highlighting their development as a source of legitimacy and acceptance of the investment treaty arbitration regime. That Section highlights the promise of the Rules and Convention and their potential pitfalls, before canvassing a number of topics for future empirical study. [ABSTRACT FROM AUTHOR]

The host State may conclude contracts with local subsidiaries of a foreign investor. Conversely, a foreign investor may conclude contracts with an entity established by the host State with a domestic legal personality distinct from the State. In either case, where there is no direct privity between the host State and the investor, is it possible for the investor to initiate treaty-based arbitration against the host State, alleging a violation of the obligations observance clause (umbrella clause) contained in the applicable investment treaty? In the former case, the investor is entitled to initiate arbitration against the host State, if the clause obliges the latter to observe obligations entered into 'with regard to investments', in light of the text and the effet utile of the clause. In the latter, the separate legal personality of the entity cannot by itself prevent the investor from invoking the obligations observance clause. However, the rules on attribution in the law of State responsibility, though often used by tribunals, cannot explain the applicability of the clause in this situation. The investor needs to establish that the entity represented the host State in entering into the obligation in question. [ABSTRACT FROM AUTHOR]

This article explores the topic of international investment disputes that arising from a violation which is directed at an international commercial arbitration agreement or award. In previous investment treaty arbitration cases, such disputes have already found justiciable. This article discusses several aspects that are worthy of note in respect of these disputes and focuses on the particularities of previous investment cases. These aspects cover the scope of consent to investment arbitration, particularly the question of whether the investor can directly allege a violation of the New York Convention before investment tribunals. It also treats the determination of investment as the basis of jurisdiction ratione materiae, the legal interest of the investor in such an investment claim, the extent of state responsibility for different relevant causes of action, and the remedies that can be sought by the investor. [ABSTRACT FROM AUTHOR]

Foreign investment law (FIL) is unlike any other sub-field of international law. Its unique features continue to puzzle observers. Two general themes recur. First, why do countries agree to limit so substantially their sovereign powers over foreign investors and, most strikingly, to open themselves up to direct claims in investor-state arbitration? Secondly, how can FIL survive given its composition of thousands of treaties, custom, domestic laws, contracts and (often contradictory) arbitration awards, without a controlling multilateral treaty or institution, or appellate court? This article draws on complexity theory and the notion of complex adaptive systems to offer an alternative, richer account of FIL. Approaching FIL as a complex adaptive system (CAS) allows us better to understand how FIL (i) emerged out of small, incremental and often accidental steps, (ii) operates as a largely self-organizing, decentralized system made up of many interacting components and (iii) remains stable, but also changes and evolves through a series of local, sub-optimal quasi-equilibria, highly sensitive to initial conditions that can be disturbed by both seismic events and minor mutations. The insights thus provided should also help participants in FIL to develop interventions or reforms that are more likely to be effective, in casu relatively small tweaks or adaptations which may have major repercussions. Seeking the edge of chaos, therefore, is not seeking disorder or randomness but the right balance between order and flexibility. This perspective should give pause to lawyers, generally critical of fragmentation and decentralization, and intuitively seeking order and central authority. Through the lens of complexity theory, FIL, with all its imperfections, and contrary to conventional wisdom, may not be one of law's most pathological sub-fields in need of top-to-bottom reform. Though far from optimal, it may be an organizational life form more similar to species that have survived evolutionary biology and, in this sense, a model that other legal regimes may want to learn from and emulate. [ABSTRACT FROM AUTHOR]

The text of the 2nd Karl-Heinz Böckstiegel Lecture of 13 September 2013 as adapted for publication examines the question on whether the setting aside of the arbitral award should be abolished. It does so by identifying the various issues that arise out of an action for setting aside, such as the possibility of double control and conflicting decisions, the (universal) effect of a setting aside in the country of origin and the court with the last say on the validity of an international arbitral award. The origin of the action for setting aside and its current legal status in international arbitration. The various attempts to reduce or eliminate the role of setting aside in international arbitration. The situation in investment arbitration. Whether the setting aside action should be abolished and if so, what may be the alternatives. [ABSTRACT FROM AUTHOR]

The article discusses challenges faced by tribunals in investment arbitration proceedings and offers practical suggestions to promote the legitimacy and vitality of international investment arbitration. It describes the role that arbitrators and arbitration counsel should play in issuing reasonable orders and mentions some rigorous case management tools that can be used by arbitrators such as imposing reasonable page and time limits and requiring concise statements of material issues.

This article explores two themes. The first one addresses the legal nature of arbitral awards and an attempt is made to offer a legal definition also by looking at the legal nature of arbitration and related theories. The conclusion is that awards are de facto and de jure functional equivalents of court judgments. In this regards the article also looks at the ‘value' of arbitral awards. The second theme is whether the interference of judicial or other State authorities with the enforcement of a foreign arbitral award may be the trigger for investment protection (for treatment short of fair and equitable treatment or even expropriation) in investment treaty arbitration; this may be on the basis of a bilateral investment treaty and/or the Convention on the Settlement of Investment Disputes between States and National of Other States (‘ICSID Convention’). It is well established that States party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’) have a public international law obligation to enforce a foreign arbitral award unless they find that one of the limited grounds to resist enforcement exists. A number of recent cases rely on investment treaties to establish jurisdiction against States which aggressively and arbitrarily or negligently and willfully refuse to enforce an award with a foreign party beneficiary. While a trend emerges there are also cases which reject such applications for lack of jurisdiction under investment treaties. The article provides guidance as to which State conduct in relation to enforcement of arbitral awards may warrant investment arbitration. [ABSTRACT FROM PUBLISHER]

The idea that a breach of the investor’s ‘legitimate expectations’ may be relevant in deciding upon a violation of an investment treaty has been recurrently put forward by claimants in investment treaty arbitrations and endorsed by a growing number of tribunals in the last few years. However, the picture emerging from this jurisprudence is rather fragmented and often contradictory. This article will first attempt to trace the roots of the concept of legitimate expectations, thus looking at domestic administrative law systems and the EU system, which protect legitimate expectations in a number of situations. It will then turn to the investment treaty context, where the doctrine has found its most popular application under the fair and equitable treatment standard. The article will identify patterns of governmental conduct in relation to which a breach of legitimate expectations has been found. These involve situations where the investor is able to invoke contractual commitments, unilateral representations of the state and a right to a stable regulatory framework. The latter poses particular problems, because unqualified protection of legitimate expectations may have the effect of fettering the state’s right to regulate. The article highlights that for the expectation to be reasonable, and hence legitimate, tribunals ought to consider both the socio-economic circumstances of the host state and the investor’s own conduct. [ABSTRACT FROM PUBLISHER]

Can States promote economic development without infringing upon the cultural wealth of nations? Although economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations—potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage—these phenomena can also jeopardize the cultural wealth of nations. Foreign direct investments have an unmatched penetrating force with the ultimate capacity of changing landscapes and erasing memory. At the same time, the increase in foreign direct investment has determined the creation of legally binding and highly effective regimes that demand States to promote and facilitate foreign direct investment. Has an international economic culture emerged that emphasizes productivity and economic development at the expense of cultural wealth? Does the existing legal framework adequately protect the cultural wealth of nations vis-à-vis economic globalization? This article surveys a selected sample of investment arbitrations, showing that while international investment law has not developed any institutional machinery for the protection of world heritage through investment dispute settlement (after all international investment law is not intended to protect cultural heritage), in recent years, a jurisprudential trend has emerged that takes cultural heritage into consideration. After defining the concept of cultural heritage disputes, this study analyzes and critically assesses these disputes and explores the use of cultural exceptions as a tool to prevent disputes in this field. [ABSTRACT FROM PUBLISHER]

The article presents information on the Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States which is related to the settlement of investment disputes between states. The relevant rules of treaty interpretation, arbitral jurisprudence, importance of Vienna Convention on the Law of Treaties (VCLT) and the potential hypotheses are also discussed.