Practical Law

Over the last few years, there has been increasing public awareness and concern over the ability of private investors to sue democratically elected governments before privately constituted tribunals which operate “in secret” outside the sphere of domestic courts.

In mid-January this year, all 28 EU member states signed declarations committing to terminate their intra-EU bilateral investment treaties (BITs). 21 EU member states (including the United Kingdom), went further and stated that the Achmea decision (described further below) also applies to intra-EU disputes pursuant to the Energy Charter Treaty (ECT).

The European Commission has emerged as one of the biggest drivers for reform of investor-state dispute settlement (ISDS). Arguing that the current ISDS system lacks legitimacy, consistency and transparency, the EU has taken a two-pronged approach in its push for reform. First, it has sought to replace traditional investor-state arbitration with a system of standing … Continue reading Update on the European Commission’s drive for investment courts →

The EU’s quest to reshape European investment policy and dispute settlement is well documented, and has been the subject of much debate. One key element of that strategy is to eradicate bilateral investment treaties (BITs) concluded amongst EU member states – so-called “intra-EU BITs” (as opposed to BITs between EU member states and non-member states, … Continue reading Intra-EU BITs: time to reconsider European investment structures? →

Whilst the International Centre for Settlement of Investment Disputes (ICSID) Convention specifically provides for the revision of a final award in cases of “discovery of some fact of such a nature as decisively to affect the award”, it does not expressly address the question of whether, and on what basis, a tribunal may reconsider and possibly … Continue reading Standard Chartered Bank v TANESCO: contractual ICSID case calls finality of ICSID decisions into question →

Whilst strategic tax advice is by now an integral part of any international investment transaction, strategic nationality planning, so as to maximise investment protections with effective access to investor-state dispute settlement (ISDS), still very much remains the exception to the rule.

On 4 February 2016, the European Commission filed an amicus brief with the US Court of Appeals for the Second Circuit, opposing the enforcement of the controversial International Centre for Settlement of Investment Disputes (ICSID) award against Romania in the Micula case. In its amicus brief, the Commission argued that the award was rendered under … Continue reading The EU flexes its muscles: update on EU foreign investment disputes →