The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?

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The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?

Edited by Alan M. Anderson · Ben Beaumont
Kluwer Law International November 2020

Specifications

ISBN-13
9789403517551
Publisher
Kluwer Law International
Publication
November 2020
Format
Hardback
Jurisdiction
International ? Countri(es) for reference only

Details

The Investor-State Dispute Settlement System is a thought-provoking and important contribution to the ongoing worldwide discussions and debates regarding the way forward for investor-State dispute resolution. The investor-State dispute settlement (ISDS) system provides a mechanism, based on international arbitration, to resolve disputes between foreign investors and States. The number of ISDS arbitrations has increased significantly over the past decade. Drawing contributors from around the world, the authors provide insights into critical topics regarding possible ISDS reforms, their feasibility and alternatives.

What’s in this book:
The contributors represent points of view ranging from academia to private practice to governmental entities, addressing such topics as:

  • the possible consequences of wholesale replacement or elimination of the current ISDS system;
  • the creation of a multinational investment court or appellate review mechanism;
  • an early dismissal mechanism to eliminate meritless claims;
  • issues regarding arbitrators, including their appointment and ethical obligations;
  • whether investors may retain their right to pursue claims for violations of investment protection following termination of an ISDS agreement;
  • a State’s right to assert a counterclaim against an investor-claimant;
  • the role of ISDS in promoting and protecting renewable energy production;
  • the liability of State-controlled entities;
  • the effects and implications of third-party funding;
  • the duty to mitigate damages in the light of excessive damages awards; and
  • improvements and issues relating to post-award enforcement, duration, and cost of ISDS.

This book analyses and considers various proposals and reforms under consideration by UNCITRAL’s Working Group III. It provides insights into how several geographic regions and economic cooperation areas have sought to address the question of reform of the ISDS system, including the European Union, the Middle East, and the new United States-Mexico-Canada Agreement.

How this will help you:
By providing a balanced approach with its much-needed and informed analysis of investor and State rights and duties, this book will be welcomed by all who practise in the ISDS field, including arbitrators, counsel, State governments and non-governmental organizations, regional economic organizations, and international investors. As a guide for parties to the key areas of conflict and concern with the present ISDS system, it will be a readily accessible book that will have relevance for years to come.

Table of Contents

Editors

Contributors

Acknowledgements

Foreword

Introduction
Alan M. Anderson & Ben Beaumont

CHAPTER 1
Bringing Consistency to Investment Arbitration: Challenges and Reform Proposals
Ameyavikrama Thanvi

CHAPTER 2
ISDS Reform in the EU: Are We There Yet?
Venetia Argyropoulou

CHAPTER 3
The Path of (Re)volution of the International Investor-State Dispute Settlement Regime: A Case Study of Bosnia and Herzegovina
Fahira Brodlija

CHAPTER 4
The 2015 India Model BIT and Its Suitability under ISDS
Rose Maria Sebi & Sandeep Golani & Pallab Das

CHAPTER 5
Chronicles of Middle East in Investor-State Arbitration: Autopsy of Prevalent Practice Trends and Future Epidemic Challenges
Mohamed H. Negm

CHAPTER 6
The Rise of NAFTA 2.0: A Case Study in Effective ISDS Reform
Kiran Nasir Gore & Charles H. Camp

CHAPTER 7
Reshaping Investor-State Dispute Settlement Through an Appellate Review Mechanism
Margie-Lys Jaime

CHAPTER 8
Arbitrator-Made (Jurisdictional) Law in Investment Treaty Arbitration: Application, Creation and Control
Relja Radovic

CHAPTER 9
State Responsibility for Acts of State-Controlled Entities in Investor-State Dispute Settlement
Srilal M. Perera

CHAPTER 10
Striking Back: An Investor’s Right to Confront its Home State’s Decision to Terminate Investment Protection Agreements
Anthony R. Daimsis

CHAPTER 11
Reappraising Access to Justice in ISDS: A Critical Review on State Recourse to Counterclaim
Shahrizal M. Zin

CHAPTER 12
Time for a Clean Energy Charter Treaty? Examining the Role of ISDS in Promoting and Protecting Renewable Energy Investments
Guillermo Garcia-Perrote & Ella Wisniewski

CHAPTER 13
Addressing Financial Access to Justice in Investment Treaty Arbitration
Victoria Shannon Sahani

CHAPTER 14
Regulating Third-Party Funding in Investor-State Arbitration Through Reform of ICSID and UNCITRAL Arbitration Rules: Holding Global Institutions to Their Development Mandates
Brooke S. Güven, Frank J. Garcia & Karl M.F. Lockhart & Michael R. Garcia

CHAPTER 15
Alternatives to Arbitration in Reforming Investor-State Dispute Settlement
Kinda Mohamadieh

CHAPTER 16
Mediation as a Method to Settle International Trade and Investment Disputes
Herman Verbist

CHAPTER 17
The Duty to Mitigate: A Billion Dollar Mystery of General Principles of Law
Kai-chieh Chan & Chuanyu Fan

CHAPTER 18
Challenges in Quantifying Damages: Are Damages Getting the Treatment They Deserve by Investor-State Tribunals?
Ahmed Abdel-Hakam

CHAPTER 19
Improving Post-award Efficiency: Proposed Reforms to the ICSID Annulment Process
Ankita Ritwik & Marryum Kahloon

CHAPTER 20
Enforcement of Investment Court Decisions under the New York Convention: A Search for Defining Elements
Brian McGarry

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