Reform of investor-state dispute settlement: In search of a roadmap
The interest in this topic, and the breadth of proposals offered by our contributors, demonstrates both the importance of holding this dialogue and the creativity of astute users and observers of the present system. This Special Issue is particularly timely in light of the European Union public consultation on investor-state dispute settlement and the Transatlantic Trade and Investment Partnership just begun by EU Trade Commissioner Karel De Gucht.
Table of Contents - Volume 11, issue #01, published January 2014
- Introduction TDM Special issue on "Reform of Investor-State Dispute Settlement: In search of a Roadmap"
by J.E. Kalicki, Arnold & Porter LLP; A. Joubin-Bret, Avocat à la Cour
CHAPTER I - SETTING THE STAGE FOR REFORM
- Assessing Treaty-based Investor-State Dispute Settlement: Abandon, Retain or Reform?
by S. Nappert, 3 Verulam Buildings; L. Nottage, Sydney Law School; C.T. Campbell, Center for International Legal Studies - Inter-Governmental Evaluation of Investor-State Dispute Settlement: Recent Work at the OECD-hosted Freedom of Investment Roundtable
by D. Gaukrodger, Investment Division, OECD; K. Gordon, Investment Division, OECD - Do We Need Investment Arbitration?
by C.H. Schreuer, Wolf Theiss - Perspectives for Investment Arbitration: Consistency as a Policy Goal?
by R. Dolzer, University of Bonn - The Emperor Has No Clothes: A Critique of the Debate Over Reform of the ISDS "System"
by J.J. Saulino, Crowell & Moring LLP; J.S. Kallmer, Crowell & Moring LLP - Making impossible investor-state reform possible
by L. González García, Matrix Chambers - ISDS growing pains and responsible adulthood
by S. Constain
CHAPTER II - METHODOLOGICAL APPROACHES
- Advancing Reform at ICSID
by A.R. Parra, International Council for Commercial Arbitration - UN Commission on International Trade Law and Multilateral Rule-making - Consensus, Sovereignty and the Role of International Organizations in the Preparation of the UNCITRAL Rules on Transparency
by J. Salasky, UNCITRAL; C. Montineri, UNCITRAL - Error Correction and Dispute System Design in Investor-State Arbitration
by A. Schneider, Marquette Law School - The Politics of International Investment Arbitrators
by C.A. Rogers, Università Commerciale Luigi Bocconi - Investor-State Dispute Settlement Reform - Examining the Formative Aspect of Investment Treaty Commitments: Lessons from Commercial Law and Trade Law
by L. Hsu, School of Law, Singapore Management University
CHAPTER III - REGIONAL EXPERIENCES WITH ISDS
- Proposal of changes to the system of investment dispute resolution: a contribution from South America
by H. Rondón de Sansó - Is There a Life for Latin American Countries After Denouncing the ICSID Convention?
by R. Polanco Lazo, World Trade Institute - Ecuador’s contribution to the reshaping of the protection of foreign investment and international arbitration: The UNASUR initiative
by A. Galindo, Dechert LLP - What’s Yours is Mine: Conflict of Law and Conflict of Interest Regarding Indigenous Property Rights in Latin American Investment Dispute Arbitration
by W. Shipley, Centre for International Sustainable Development Law (CISDL) - A Resilient Boat Sailing in Stormy Seas: ASEAN Investment Agreements and the Current Investor-State Dispute Settlement Regime
by T. Wongkaew, Graduate Institute of International and Development Studies - Investor-State Dispute Settlement from the Perspective of Vietnam: Looking for a "Post-Honeymoon" Reform
by T.T. Nguyen, International Law Department, Ministry of Justice of Vietnam; T.C.Q. Vu, Legal Affairs Department, Ministry of Planning and Investment of Vietnam - ICSID’s Relevance for the Resolution of China-Africa Disputes
by W. Kidane, Seattle University School of Law - Africa and the System of Investor-State Dispute Settlement: To Reject or Not to Reject?
by U. Ewelukwa Ofodile, University of Arkansas School of Law - Initial Hiccups or More? About the Efforts of the EU to Find its Future Role in International Investment Law
by J.A. Bischoff, M.M.Warburg & CO
CHAPTER IV - STRENGTHENING THE ROLE OF STATES
- Section I - Treaty Interpretation
- Delegating Interpretative Authority in Investment Treaties: The Case of Joint Commissions
by A. van Aaken, University of St. Gallen - Reform of Investor-State Dispute Settlement: Lessons From International Uniform Law
by J. Karton, Queen’s University, Faculty of Law - Which is to be the Master?: Extra-Arbitral Interpretative Procedures for IIAs
by M. Ewing-Chow, Centre for International Law (CIL); J.J. Losari, Centre for International Law (CIL) - Keeping Interpretation in Investment Treaty Arbitration ’on Track’: The Role of States Parties
by T. Ishikawa, Waseda Institute for Advanced Study - In Search of Consistency and Fairness in Investor-State Arbitration: An "Institutional" Approach to Interpreting the Doctrine of Legitimate Expectations
by U.E. Özgür, CEPMLP, University of Dundee - Travaux Préparatoires and the Legitimacy of Investor-State Arbitration
by B.S. Vasani, Jones Day; A. Ugale, Jones Day - State-To-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority
by A. Roberts, London School of Economics, Department of Law
- Delegating Interpretative Authority in Investment Treaties: The Case of Joint Commissions
- (Section II - Revising Treaty Language)
- Reform of Investor-State Dispute Settlement: the US Experience
by J.K. Sharpe, U.S. Department of State; K.L. Kizer, U.S. Department of State - Liberalization or Litigation? Time to Rethink the International Investment Regime
by S. Lester, WorldTradeLaw.net - Rethinking Rights and Responsibilities in Investor-State Dispute Settlement: Some Model International Investment Agreement Provisions
by E. Boomer, MIDS - Back to the Future: Contemplating a Return to the Exhaustion Rule
by D. Kalderimis, Chapman Tripp - Restricting the Scope of International Investment Agreements as a Means to Set Limits to the Extent of Arbitral Jurisdiction
by M. Valenti, Università degli Studi di Milano - Limiting Investor Access to Investment Arbitration - A Solution without a Problem?
by A. Bouchenaki, Herbert Smith Freehills LLP; L-Y. Tan, Gibson Dunn - Exclusion From Within the Ambit of a Protected Investor, a Fair Price to Pay for the Act of Abusive Treaty Shopping?
by V. Gupta, Dr. Ram Manohar Lohia National Law University, Lucknow - A Few Pragmatic Observations on How BITs should be Modified to Incorporate Human Rights Obligations
by P. Dumberry, Faculty of Law, University of Ottawa; G. Dumas-Aubin, Faculty of Law, University of Ottawa - On Genealogy of Proposals to Reform Investor-State Arbitration
by A. Ghouri, University of Turku, Faculty of Law
- Reform of Investor-State Dispute Settlement: the US Experience
- Section III - State-State Procedures and a Standing Investment Court
- The Abiding Role of State-State Engagement in the Resolution of Investor-State Disputes
by T.R. Posner, Weil, Gotshal & Manges LLP; M.C. Walter, Weil, Gotshal & Manges LLP - Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States
by A. Roberts, London School of Economics, Department of Law - In Search of a Roadmap - Lessons for the ISDS Regime in the U.S. Experience of Lump-Sum Claims Settlement Processes
by T.J. Feighery, Arent Fox LLP - Permanent Investment Tribunals: The Momentum is Building Up
by O.E. Garcia-Bolivar, BG Consulting, Inc - The Challenges of Creating a Standing International Investment Court
by E. Zuleta, Gómez-Pinzón Zuleta Abogados S.A.
- The Abiding Role of State-State Engagement in the Resolution of Investor-State Disputes
CHAPTER V - FURTHER ADVANCING THE REFORM OF ICSID
- Achieving a Faster ICSID
by A. Raviv, Wilmer Cutler Pickering Hale and Dorr LLP - Streamlining the ICSID Process: New Statistical Insights and Comparative Lessons from Other Institutions
by J. Kim, Yonsei Law School - Fragmentation and Harmonization in the ICSID Decision-Making Process
by R. Castro de Figueiredo, Tauil & Chequer Advogados Associado a Mayer Brown LLP - ICSID Annulment Standards: Who Has Finally Won the Reisman vs Broches Debate Two Decades Ago?
by N. Tsolakidis, White & Case LLP - ICSID Annulment Reform: Are We Looking at the Right Problem?
by M.B. Silberman, Arnold & Porter LLP - The trembling legitimacy of the ICSID annulment system in the light of decisions by Ad Hoc Committees vis-à-vis the Ad Hoc Committee decisions
by V. Giraud Martinelli, Mezgravis & Asociados - Addressing and Redressing Errors in ICSID Arbitration
by D.B. Gosis, Gomm & Smith P.A.
CHAPTER VI - AN APPELLATE SYSTEM
- Appellate Mechanisms for Investment Arbitration: Worth a Second Look for the Trans-Pacific Partnership and the Proposed EU-US FTA?
by B. Legum, Dentons - Appellate Review in Investor State Arbitration
by E.Y. Park, Kim & Chang - Reform of the investor-State arbitration regime: the appeal proposal
by G. Bottini, Arbitrator and Advisor on Issues of Int’l Law and Int’l Litigation - Introduction of an Appellate Review Mechanism for International Investment Disputes - Expected Benefits and Remaining Tasks
by J. Lee, School of Law, Seoul National University - Why ICSID Doesn’t Need an Appellate Procedure, and What to Do Instead
by K. Andelic, University of Niš, Faculty of Law
CHAPTER VII - INVESTOR-STATE MEDIATION
- Mediation use in ISDS
by F. Khalifa, Egyptian State Lawsuits Authority (ESLA) - Enabling Early Settlement in Investor-State Arbitration - The Time to Introduce Mediation Has Come
by J. Lack, Independent ADR Neutral & Attorney-at-Law; M. Leathes, International Mediation Institute (IMI); W.J. von Kumberg, Northrop Grumman Corporation - Integrating Mediation Into Investor-State Arbitration
by N.A. Welsh, Penn State Law; A. Schneider, Marquette Law School - The Advantages of Mediation and the Special Challenges to its Utilization in Investor State Disputes
by E. Sussman, SussmanADR - Alleviating the Disruptive Nature of Investment Arbitration: Some Remarks on Restitution and Post-Arbitration ADR
by N. Angelet, Liedekerke Wolters Waelbroeck Kirkpatrick - Investor-State Conflict Management: A Preliminary Sketch
by R. Echandi, International Finance Corporation, World Bank
CHAPTER VIII - REFORMING FROM WITHIN
- The Sixth Path: Reforming Investment Law from Within
by S.W. Schill, Max Planck Institute for Comparative Public Law and International Law - The Margin of Appreciation in International Investment Law
by J. Arato, Columbia Law School - By Equal Contest of Arms: Jurisdictional Proof in Investor-State Arbitrations
by F.G. Sourgens, Washburn University School of Law - Interim Costs Orders: The Tribunal’s Tool to Encourage Procedural Economy
by J. Sullivan, Allen & Overy LLP; D. Ingle, Allen & Overy LLP - Reforming the Approach to Costs in Investment Treaty Arbitration
by M. Hodgson, Allen & Overy LLP - Distinguishing Investors from Exporters under Investment Treaties
by M. Feldman, Peking University School of Transnational Law - Collective Action in Investment Arbitration to Enforce Small Claims Justice to the Deprived or Death Knell for the System of Investor-State Arbitration?
by S. Wilske, Gleiss Lutz Rechtsanwälte - ICSID Treaty Counterclaims: Case Law and Treaty Evolution
by J.A. Rivas, Arnold & Porter LLP
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