Table of Contents

  • The system of investment dispute settlement has borrowed its main elements from the system of commercial arbitration. However, investor-state disputes often raise public interest issues which are usually absent from international commercial arbitration. As a result, the traditional manner in which governmental measures are reviewed for compliance with international law in a private setting, i.e. confidential in-camera proceedings has come under increased scrutiny and criticism. This survey examines the current rules related to transparency and third party participation in investor-state dispute settlement procedures, steps taken to improve transparency and the perceived advantages as well as the challenges of additional transparency.

  • In recent times, disputes related to nationalisation of investments that marked the 70s and 80s have been replaced by disputes related to foreign investment regulation and indirect expropriation. Foreign investors increasingly make claims for compensation based on governmental regulations, such as placing restrictions on the legal use of property that do not actually remove the owner’s title to the property but nevertheless substantially affect its value or the owner’s control. There is some concern that concepts such as indirect expropriation may be applicable to regulatory measures aimed at protecting the environment, health and other welfare interests of society. How has state practice defined and articulated the difference between an indirect expropriation requiring compensation and a governmental measure impacting an investment but not requiring compensation? How have arbitral tribunals drawn the line? Has the doctrine shed any additional light on this distinction? This survey provides factual elements of information on jurisprudence, state practice and literature related to “Indirect Expropriation” and the “Right to Regulate”. It presents the issues at stake and describes the basic concepts of the obligation to compensate for indirect expropriation, reviews whether and how legal instruments and other texts articulate the difference between indirect expropriation and the right of the governments to regulate without compensation and attempts to identify a number of criteria emerging from jurisprudence and state practice for determining whether an indirect expropriation has occurred.

  • The obligation of the parties to investment agreements to provide to each other’s investments “fair and equitable treatment” has been given various interpretations by governmental officials, arbitrators and scholars. Discussion of this standard has focused mainly on whether the standard of treatment required is measured against the customary international law minimum standard, a broader international law standard including other sources such as investment protection obligations generally found in treaties and general principles or whether the standard is an autonomous self-contained concept in treaties which do not explicitly link it to international law. Because of the differences in its formulation, the proper interpretation of the “fair and equitable treatment” standard depends on the specific wording of the particular treaty, its context, negotiating history or other indications of the parties’ intent. The attempts to clarify the normative content of the standard itself have, until recently, been relatively few. This document provides factual elements of information on jurisprudence, literature and state practice related to the fair and equitable treatment standard. It examines the origins of the standard and its use in international agreements and state practice, its relationship with the minimum standard of international customary law and the elements of its normative content as identified by arbitral tribunals.

  • Most-Favoured-Nation (MFN) treatment is one of the oldest standards of international economic relations. It is central to WTO disciplines and is as well a significant instrument of economic liberalisation in the investment field by spreading more favourable treatment from one investment agreement to another. The wording of MFN clauses varies, however, and their interpretation and application requires a careful analysis, on a case-by-case basis, in accordance with Articles 31 and 32 of the Vienna Convention. The ejusdem generis principle provides that an MFN clause can attract the more favourable treatment available in other treaties only in regard to the “same subject matter”, the “same category of matter”, or the “same class of matter”. Past arbitral findings show, however, that the application of this principle has not always been simple or consistent. The present survey reviews the jurisprudence and invites practitioners to pay particular attention to the formulation of the MFN clauses in investment agreements, taking into account established treaty interpretation rules.