EU foreign investment law

The Chapter addresses the dispute settlement system of the BBNJ Agreement. It analyses its assonances and dystonias with the disputes settlement systems of other international agreements subsequent to the United Nations Convention on the Law of the Sea (UNCLOS). The latter usually provide for a mutatis mutandis application of Part XV of UNCLOS. Article 60 BBNJ states instead that «[d]isputes concerning the interpretation or application of this Agreement shall be settled in accordance
with the provision for the settlement of disputes provided for in Part XV of [UNCLOS]». Quite apart from the manner in which it refers to PART XV UNCLOS, the BBNJ is to be ascribed to the category
of agreements that place reliance on the UNCLOS dispute settlement system. The Chapter therefore also addresses the possible reasons for such favor.

This article, within the Special Issue’s ‘justice beyond dispute settlement’ theme, looks at whether the protections offered by EU law are adequate alternatives to those offered by international investment law (IIL) in the post-Achmea world of intra-EU investment protection. Whilst EU law offers far reaching protections to businesses operating in the EU, sometimes going beyond the protections offered by IIL, from an investment law perspective the article argues that not all the substantive and procedural protections offered by EU law are adequate for the purposes of IIL. This is because investment law has the narrower focus of protecting and promoting investments which in turn influences how the legal provisions are interpreted. EU law, on the other hand, has the much broader and deeper purpose of creating an ‘ever-closer’ Union, a ‘systemic’ purpose that permeates the CJEU’s interpretation of EU law. Thus, the deeper we look, the more differences we find in the personal and material scope of the two systems, the substantive standards of treatment, the derogations from the substantive standards, and the procedural protections and remedies. Coming full circle, the different epistemic communities of adjudicators, just like the different purpose and objectives, result in similar or the same concepts being interpreted differently. It is quite unfortunate that the CJEU viewed these two systems as competitors, in which investor-State arbitration ‘removed’ cases from the jurisdiction of EU Member State courts, when in fact they are complementary systems of protection.

International trade agreements are major avenues for facilitating global economic growth, ensuring smooth supply chain management across the globe, and coordination of international relations among other social and economic activities among nations. However, such agreements and activities thereof are inevitably prone to disagreements and violations of the guiding principles. Multilateral trade agreements, Bilateral Investment Treaties, and even Regional Trade Agreements often involve countries with economic, political, and legal backgrounds or trends

II. Dünya Savaşı'ndan sonra ticaretin küresel boyutta artışa geçmesi uluslararası sermaye hareketlerinin düzenli bir zeminde gerçekleştirilmesi ihtiyacını arttırmıştır. Çok tarafları yatırım anlaşması çabalarının sonuçsuz kalması yatırım teşviki ve korunması arayışındaki devletleri ikili yatırım anlaşmalarına sevk etmiştir. Avrupa Birliği de (AB) 1990'lı yılların başında itibaren küresel ticarette yetki sahibi olmak arzusu içinde olmuştur. Ancak AB'nin kendine özgü hukuki yapısı nedeniyle bu yetki arayışı uzunca bir süre karşılıksız kalmıştır. Bir taratan üye devletlerin yatırım anlaşmalarının Birliğin ortak çıkarlarına zarar vermesini önlemek isteyen Birlik diğer taraftan bu alandaki yetki talebini canlı tutmuştur. Nihayet Lizbon Antlaşmasıyla birlikte doğrudan yabancı yatırımlar (DYY) alanında münhasır bir yetki sahibi olan Birlik yaptığı yeni nesil anlaşmalar ve Birlik tasarruflarıyla etkisini arttırmaya devam etmektedir. Bu çalışmada uluslararası yatırım anlaşmalarının AB'nin kendine özgü hukuki yapısından ne ölçüde etkilendiği ve bu etkileşim neticesinde hangi hukuki meselelerin ortaya çıktığı araştırılmıştır. Tez çalışmasında ilk olarak yatırım anlaşmalarının uluslararası hukuktaki yeri ve önemine değinilmiş, sonrasında AB'nin yatırım anlaşmaları, üye devletlerin kendi aralarında üçüncü devletlerle akdettiği yatırım anlaşmaları incelenmiştir. Son olarak bu alandaki hukuki meselelerin Türkiye'nin yatırım anlaşmalarına nasıl yansıyacağına değinilmiştir. Çalışmada uluslararası yatırım anlaşmaları hükümlerinin giderek AB mevzuatına yakınlaştırıldığı, böylece Birlik hukuku dinamiklerine dikkat edilen yeni nesil yatırım anlaşmalarının ortaya çıktığı; ancak henüz yatırım uyuşmazlıklarının AB hukukunun özerk yapısını etkilemeden nasıl çözülebileceğine dair somut bir gelişme sağlanamadığı sonuçlarına ulaşılmıştır.

This chapter discusses how the use of Artificial Intelligence (AI) has permeated professional practice in the legal world as a whole, using a range of examples to illustrate its use, specifically in the international arbitration field. Examining the challenges currently presented by AI, and its flaws, leads to reflections on the need to be able to count on hard or soft law texts that address AI-generated ethical challenges. After arguing in favour of a regulatory approach in the Investor State Dispute Settlement (ISDS) context, the chapter also contains a detailed legal analysis of recent initiatives such as the SVAMC Guidelines on the Use of Artificial Intelligence in International Arbitration.

The Lisbon Treaty altered the way EU trade negotiations are conducted, by granting new powers to the European Parliament (EP), including ratification powers. Ten years after the Treaty entered into force, this article evaluates the parliamentary influence on EU trade negotiations, both in terms substantial and procedural matters, by analyzing the trade negotiations between the EU and Japan that lead to the Economic Partnership Agreement. Using an embedded two-level game approach, the paper argues that parliamentary influence has been significant, and that the EP has developed into a constructive and experienced actor. It has changed the inter-institutional dynamics, and it plays an increasingly influential role internationally through cross-table engagement with the EU's negotiating partners. In addition, EU trade negotiations are embedded in a network of past, parallel and future negotiations, which shaped the strategies of the EP, and the nature and progress of the negotiations overall.

One of the most important characteristics of an investment treaty is that often it grants aggrieved investors access to international arbitration. This arbitration system does not require a foreign investor to petition his home state in order to bring claims against a host state, and provides an alternative to resolving disputes in the host state's local court. Although international investment arbitration is beneficial for countries in terms of foreign direct investment, it has been accused of not being transparent or effective especially in relation to environment or public health cases. Some countries expressed their discomfort with the current international investment law regime by radical exit solutions such as denunciation of the Convention on the settlement of investment disputes between states and nationals of other states, rejection of investor-state dispute settlement provisions and unilateral denunciation of investment treaties. Based on a vast law, economics and political science literature, this paper proposes arguments to examine these criticisms. First, it is argued that investor-state arbitration is currently a concern in both developing and developed countries. Second, although assessing the spillover effects of arbitration outcomes on some dimensions of public interests such as the environment or public health is not straightforward, the uncertainty that leads to arbitrariness and sometimes inconsistencies in arbitral decision-making exists and needs to be properly identified. Finally, this article argues that exit is not efficient at either the national or international levels, and that it is possible for countries to adapt the current regime to new situations without wholesale exit.

In a recent conversation with Prof Tarek Riad on International Arbitration in the MENA Region, a group of smart and young LLM mostly international students from Cornell University asked: Can you please tell us about the MENA market, we hear Saudi Arabia is booming right now hiring foreign lawyers what is your insight? and what is the upcoming seat of arbitration in the MENA region…is it Saudi? To which Prof Riad replied “Saudi is the new business centre in the Middle East…when you apply, your priority should be Saudi Arabia”. Whether you are practising international commercial arbitration or its twin brother foreign investment arbitration, Prof Riad is right, Saudi is the new centre of business according to different indices, especially, on foreign direct investment (FDI). For example, despite the pandemic, the FDI inflow of 33$ billion was ranked 10th amongst the G20 economies in 2022, and Saudi was listed in Kearney 2023 FDI Confidence Index amongst the Top Six Most Attractive FDI Destinations of Emerging Markets. The resilience of the Saudi economy despite global crises is not new; for instance, a study found the reasons Saudi experienced higher FDI inflow despite the 2008 Global Financial Crisis, were the WTO membership and institutional quality which includes political and economic stability and legal reforms.

Sunset clauses in International Treaties account for numerous
benefits. However, their entrenchment effect disproportionally
burdens future policymakers.
This is the case of the Energy Charter Treaty, which poses unique
challenges for two main reasons. First, compared to other
treaties, the ECT contains a 20-year sunset clause. Second, the
treaty is a multilateral with a rigid amendment procedure, which
empowers the entrenchment effect of that treaty.
Within this context, the study explores the policy options to
disengage from the ECT and the entrenchment effect of its
sunset clauses.

The Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU and its Member States is a new generation trade agreement in which the parties facilitate deep trade integration. Its corollary is a Strategic Partnership Agreement (SPA), in which the parties vow to cooperate in the furtherance of their joint values, both between them and on the international scene. While CETA is in the process of ratification, it is already being applied provisionally for 90% of its provisionsexcluding notably investment protection, market access for portfolio investment and the investment court system. Thus, a new chapter in trade relations has started, thanks to a great extent to Canada. For the EU, this agreement was not easy to achieve because it is a composite actor, and this is a mixed agreement. CETA is a prime example of the difficulties of concluding mixed agreements, even after the continued advancement of European integration in recent times. On the one hand, changes in the Lisbon Treaty and the CJEU's case law have allowed the Union to better tackle modern transnational problems, such as climate change and sustainable development. On the other hand, the Union cannot do this without the support of national and regional parliaments, EU citizens and its trade partners. The EU's external policy is legally disaggregated: many areas of foreign policy competence are shared between the EU and the Member States. This situation, combined with the principle of subsidiarity, allows Member States to pursue policies of their own, resulting in inconsistencies in external action of the EU. The Treaty of Lisbon and the Court of Justice of the EU (CJEU) have somewhat clarified the division of powers. New explicit EU powers have been added (climate change, energy, sustainable development) and the exclusive external competence of the Union has been enlarged (investments, services etc.), allowing the EU in principle to better tackle modern-day transnational problems. However, decision-making and related procedures follow the internal division of powers of the European Union. This means that, in matters where the implementation of policies still depends on national parliaments, they have a real power

Yelter Bollen is a PhD researcher. He is studying the formation of Member States' policy preferences in trade. Marjolein Derous is a PhD Researcher and Teaching Assistant. Her research focuses on the bilateral relations between the EU and countries of Southeast Asia. Ferdi De Ville is an assistant professor. His research focuses mainly on EU trade policy. Niels Gheyle is PhD researcher. His research is about the causes and consequences of the politicization of TTIP. Jan Orbie is the Director of the Centre for EU Studies and a Full Professor. His research focuses on EU external policies. Lore Van den Putte is a PhD researcher funded by the Research Foundation Flanders (FWO). Her main research interest lies in the linkage between labour norms and EU bilateral trade agreements. All authors are members of the Centre for EU Studies (CEUS),

CETA, the EU’s proposed free trade agreement with Canada, is currently being held up by opposition within the Belgian region of Wallonia, which could ultimately derail the agreement entirely if a solution cannot be reached. Amandine Crespy writes that the CETA case illustrates the problem in balancing free trade with sovereignty and democracy in Europe.

I. Introduction Recent negotiations of trade and investment treaties between and among Canada, the European Union (EU), the United States (U.S.), and states in the Asia Pacific region have tested investor-state dispute settlement (ISDS). 1 Those opposed to ISDS argue that it provides investors with the right to challenge, and therefore potentially impede, domestic regulations implemented for legitimate public policy concerns, such as protection of the environment or public health. Others question whether ISDS contributes to, or is governed by, the rule of law. This latter concern is premised on allegations that cases are heard in confidential fora by arbitrators who are not bound by any rules of stare decisis, which together with the above-mentioned ideological stance leads opponents to question the very legitimacy of the system. 2 Certainly not all agree with each such claims. In response, proponents argue that ISDS provides a fundamental mechanism through which the rule of international law is vouchsafed, by holding States responsible for violating good governance obligations they have

Provisions on ethics and qualifications of adjudicators in the new generation FTAs.-II.1. CETA, EUVIPA and EUSIPA: what is across the board?-II.2. Codes of conduct in the Agreements-III. The Opinion 1/17 and the ethics and qualifications of Members of ICS Tribunals.-III.1. The issue raised by Belgium.-III.2. The Court's Opinion.-IV. Reflections on the Opinion in light of the agreements' framework.-IV.1. Arbitration versus a (hybrid) Court.-IV.2. Arbitrators versus "Members of Tribunal" (or judges).-IV.3. The relevance of the compatibility of the IBA guidelines with judges.-V. Conclusion.

could look like. In comparing these two different contextual applications of ethical rules (to arbitrators and judges respectively), the contribution will finally argue that, given their fundamentally different sources of authority and perceived (reputational and actual) duties and responsibilities, any confusion in applying ethical rules tailored for arbitrators to international court judges will prove to be problematic and work against intended reform objectives such as (re)establishing legitimacy.

EU Opinion 2/13 on the accession of the EU to the ECHR was a landmark decision of the Court of Justice of the EU both for fundamental rights protection in the EU and the autonomy of the EU legal order. The present article argues that two approaches would have been possible, following either a discursive or an exclusive understanding of autonomy. As a thorough discussion of the Opinion shows, the Court chose the latter pathway, with detrimental consequences for the foreseeable future.

Can we speak of a rule of law in the multilateral system of trade and investment? This chapter focuses on a contemporary analysis of the rule of law, one that has strayed from its original purpose: to ensure that the equality of any individual or government prevails, before the law. By this, we mean a rule of law that is increasingly being used selectively to favor the interests of certain governments and companies over others. This analysis examines how the original subject of the rule of law, that is, the individual, has been replaced by economic entities personified in corporations and how the agreements for the protection of foreign investment are the most useful instrument for companies to discipline the self-determination of governments. Keywords trade multilateralism-foreign investment protection regime-foreign direct investment-bilateral investment treaties-free-trade agreements-international investment agreements-investor state disputes settlement-commerce and navigation agreements-multinational corporations-NAFTA-UNCTAD-ICSID-GATT-WTO-OECD

Since the Lisbon Treaty entered into force, the European Union (EU) has assumed powers over foreign direct investment. This article describes the system for allocating powers in this area between the Union and member states. It also comments on the powers still retained by the member states (which they exercise through bilateral investment treaties) and outlines the instruments that could make the EU’s investment policy compatible with that of member states. It focuses in particular on developments in the EU’s policy based on new global investment agreements that are about to be ratified or are still in the negotiation stage (such as the agreements with Canada, Singapore and the United States) and explores the consequences of establishing a state/investor dispute resolution system, which is envisaged by these agreements, and its compatibility with the principle of EU legal autonomy.

CEE states, following their accession into the European Union in 2004 and 2007, have been inundated with numerous lawsuits by foreign and, in many cases, European investors in front of international tribunals. Some of these cases involved state aid provided by member states to investors and when these state aid measures were revoked, based on decision of the European institutions, the aggrieved investors turned to both EU instances and international arbitrations. These EU decisions forced CEE states to take certain measures, often by curtailing contractual rights awarded by CEE states to international or Western European investors. The investors tried to invalidate the European Commissions' decisions in front of the EU Court of First Instance/General Court and subsequently in the Court of Justice. When these initiatives failed, the facts of these cases were subsequently represented by many of these investors in international fora, such as the International Centre for Settlement Investment Disputes (ICSID), or arbitrations organised under the UNCITRAL rules.

The European Union (EU) can only act internationally on competences that have been transferred to it by its Member States. Trade agreements negotiated by the EU that include provisions outside its exclusive competences should be concluded as ‘mixed’. Mixed trade agreements must be ratified following not only the procedures set out in the EU treaties, but also the national ratification procedures of the Member States. As a result, national or even regional parliaments may block trade deals agreed between the EU and its trading partners after years of negotiations. Should the EU then avoid negotiating mixed trade agreements? We argue that the answer to this question depends crucially on the objectives of the EU when negotiating with its trading partners. If the EU is mostly driven by market-access motives, it should restrict the agreement to policy areas under its exclusive competence, thus insulating the trade deal from the legal and political risks of mixity. When instead its motive...

This contribution analyses the implications of the Treaty of Lisbon for the nexus between the EU's Common Commercial Policy (CCP) and the protection of human rights. It is argued that the innovations of the Lisbon Treaty significantly affected the law and practice of the CCP in the sense that human rights considerations have become an integral part of the EU's trade policy. This is reflected both at the procedural level, with the practice of human rights impact assessments as a clear example; at the judicial level, with the Charter of Fundamental Rights as a key point of reference for assessing the legality of the EU's external action; and at the practical level, with the introduction of new initiatives and mechanisms aiming at the promotion of respect for human rights in the framework of the CCP.

In this article I propose to see the history of the international law on foreign investment as about the diffusion of investor rights as much as the resistance to investor obligations. My argument is that the divide between investment protection and the responsibility of foreign investors is one of the most significant features of the international law on foreign investment. The article shows that the different treatment of rights and obligations is grounded on the same business project and legal imagination. Maintaining this divide has never been easy, as this model faced resistance, particularly from Latin America, trade unions and human rights activists. The article concludes by noting that while mainly states can create international investor obligations, academics can contribute to reimagining the international law on foreign investment by bringing investment treaty law and business and human rights much closer. This shift is already happening.

This is the introduction to a special collection of contributions that analyse key features of the European Union's (EU) trade policy in the twenty-first century, notably its politicization. As such, it examines the degree to which EU trade policy and its environment have changed over the last 20 years. More specifically, it begins with a brief review of the main changes to the structure of international trade and the resulting impacts on trade agreements. Second, it describes the institutional changes (notably the Lisbon Treaty) that have affected the EU's trade policy-making. Third, it discusses how the abovementioned changes have affected the EU's trade policy. Finally, it summarizes the special collection's key contributions to our improved understanding of EU trade policy in the twenty-first century as well as pinpoints new issues that scholars of EU trade policy should pay close attention to in their future research agendas.

This article examines how conflicts between European Union (EU) law and Bilateral Investment Treaties (BITs) between EU Member States (intra-EU BITs) are to be tacked following the judgment of the Court of Justice of the EU (CJEU) in Achmea (C-284/16). Starting from an analysis of the CJEU’s ruling and its aftermath (Sections II and III respectively), the article argues that conflicts in the interrelation of EU law with inter se agreements, such as intra-EU BITs, are to be approached as normative conflicts between different sub-systems within the broader system of public international law and resolved in favour of EU law. This argument is based on a two-fold premise, analysed in Section IV: first, that EU law does not constitute a ‘new legal order’, outside of and cut off from international law, but rather a ‘self-contained regime’, operating ‘within’ the broader system of international law. Since EU law is treaty law, conflicts in its relationship with (other) inter se agreements a...

Provisions on ethics and qualifications of adjudicators in the new generation FTAs.-II.1. CETA, EUVIPA and EUSIPA: what is across the board?-II.2. Codes of conduct in the Agreements-III. The Opinion 1/17 and the ethics and qualifications of Members of ICS Tribunals.-III.1. The issue raised by Belgium.-III.2. The Court's Opinion.-IV. Reflections on the Opinion in light of the agreements' framework.-IV.1. Arbitration versus a (hybrid) Court.-IV.2. Arbitrators versus "Members of Tribunal" (or judges).-IV.3. The relevance of the compatibility of the IBA guidelines with judges.-V. Conclusion.

This chapter examines the impact that ISDS reforms will have on counsel's activities. More specifically, it discusses two specific amendments namely the establishment of an Advisory Centre on Investment Law (ACIL) and the elaboration of a code of conduct-using the example of the CETA. On one hand, this chapter tries to demonstrate that counsel may benefit from the establishment of the ACIL notably because it will help them to refocus on assisting litigant states and not representing them. Admittedly, this Advisory Centre may provide legal services to litigant parties in the same fashion counsel do. But, and given the number and the length of investment disputes, such a centre cannot be entrusted with the exclusive management of all those disputes. Rather, we advocate in favour of complementary between them as it has occurred for the World Trade Organization (WTO) with the Advisory Centre of WTO Law (ACWL) and the roster of counsel. On the other hand, most recent investment agreements have tackled the issue of ethics with the inclusion of provisions regulating the double-hatting and the adoption of a code of ethics for arbitrators. Even if these amendments are primarily directed towards arbitrators, they may be indirectly applicable to counsel in some cases as it will be discussed. We will conclude with some recommendations regarding the negotiations currently going on at UNCITRAL.

Economic cooperation between subjects of international law is generally expressed in various forms of agreements or international trade and investment between countries aimed at obtaining benefits from the parties entering into international cooperation. However, the BIT made by the Government of Indonesia still does not contain a balance between the rights and obligations of Investors and the Indonesian National Interest. This research is a normative research with statutory and case approach. The results of the study indicate that the current Indonesian investment agreement does not fully contain the national interest because it is based on social welfare based on Law No. 11 of 2009 has not been achieved by looking at the fact that there are still many people around the Freeport mining area who are still under poverty and housing and health conditions are very minimal compared to luxury buildings around the mine. In addition, the customary tribes around the investment (mining) location have their ulayat rights taken away and do not get protection. Based on economic theory, especially the middle way theory, investment agreements should not only provide benefits to investors but must also provide benefits to the recipient country of capital in this case the national interest.

Do investment disputes lead to lower foreign direct investment (FDI)? Recent studies argue that disputes make potential investors view the host country as riskier. Yet, a dispute, which reflects economic harm to the disputing firm, may signal new economic opportunities to firms hoping to enter the same industry. The competing pressures of risk and reward mean that the impact of disputes on FDI is ex ante unclear. However, we argue that the balance of risk and reward varies across industries. Specifically, we expect that rewards are increasing as a function of industry fixed costs. We test our hypothesis using new data on industry-level greenfield FDI between countries from 2003 to 2015. We find that a co-industrial dispute reduces investment in industries with low fixed asset intensity but not high fixed asset intensity. Overall, the results highlight the importance of theory and data that allow for heterogeneity of investors.

The EU’s practice in signing and concluding “mixed agreements” alongside its member States – all 29 legal subjects thus being parties to such agreements and accordingly each bound with one or several third parties – was not, and is still not, being properly considered by the rules of international law. Nevertheless, this practice exists and a huge number of third States have accepted it through conclusion of those “mixed agreements”. As long as a member State of the EU remains a member State, the problem may adequately be solved by the EU law which establishes a very clear hierarchical relationship between different kinds of legal norms within the EU’s legal order. EU mixed agreements are thus considered as being some kind of secondary legislation binding upon its institutions and member States (article 216(2) TFEU). However, when a member State is leaving the EU, as it is the case of the UK, the relationship between the EU and the UK as well as with third States parties to mixed ag...

This study identifies the impact of Bilateral Investment Treaties (BITs) on foreign direct investments (FDI) by taking advantage of the random timing of 44 unilateral BIT terminations in India between 2013 and 2019. Using quarterly bilateral data of 138 foreign investors’ home countries (FIHCs), our difference-in-differences (DD) estimates uncover a significant reduction in FDI inflows to India in response to BIT terminations by more than 30 percent compared to countries without terminations. We identify the sudden break with investor protection for new investments as the major transmission channel. Further investigations suggest that investors do not necessarily abandon India in response to BIT terminations but apparently reroute FDI via FIHCs with BITs. Evidence from firm-level data reveals that investors revoke or reroute mainly deals (e.g. mergers and acquisitions) rather than own new projects. Moreover, similarity of some legal institutions with India offsets the negative effec...

The EU’s practice in signing and concluding “mixed agreements” alongside its member States – all 29 legal subjects thus being parties to such agreements and accordingly each bound with one or several third parties – was not, and is still not, being properly considered by the rules of international law. Nevertheless, this practice exists and a huge number of third States have accepted it through conclusion of those “mixed agreements”. As long as a member State of the EU remains a member State, the problem may adequately be solved by the EU law which establishes a very clear hierarchical relationship between different kinds of legal norms within the EU’s legal order. EU mixed agreements are thus considered as being some kind of secondary legislation binding upon its institutions and member States (article 216(2) TFEU). However, when a member State is leaving the EU, as it is the case of the UK, the relationship between the EU and the UK as well as with third States parties to mixed ag...

On every enlargement, European Union applies to all its new Member States a set of common legal norms, known under the name of acquis communautaire, norms that also include multilateral or bilateral international agreements the EU is part of. Currently, the EU and the US are negotiating a regional trade agreement, namely the Transatlantic Trade and Investment Partnership (TTIP), of which effects over the Member States will be established according to their particular national legal order, as part of the EU acquis, presented under the form of secondary EU legislation. As part of the 28 EU Member States, Romania's legal system will apply the European international norms that regard the dispute resolutions that might occur among states or states and investors, in accordance with the European's Court of Justice (ECJ) jurisprudence, as it will be provided by the legal text of TTIP, after it will be adopted, ratified and implemented by the EU, and subsequently, by each of the Euro...

Economic cooperation between subjects of international law is generally expressed in various forms of agreements or international trade and investment between countries aimed at obtaining benefits from the parties entering into international cooperation. However, the BIT made by the Government of Indonesia still does not contain a balance between the rights and obligations of Investors and the Indonesian National Interest. This research is a normative research with statutory and case approach. The results of the study indicate that the current Indonesian investment agreement does not fully contain the national interest because it is based on social welfare based on Law No. 11 of 2009 has not been achieved by looking at the fact that there are still many people around the Freeport mining area who are still under poverty and housing and health conditions are very minimal compared to luxury buildings around the mine. In addition, the customary tribes around the investment (mining) location have their ulayat rights taken away and do not get protection. Based on economic theory, especially the middle way theory, investment agreements should not only provide benefits to investors but must also provide benefits to the recipient country of capital in this case the national interest.

Investor-state dispute settlement and arbitration, in particular, stands at the centre of a process intended to reform the global regime of international investment treaties. The mechanism’s negative impact on public decision-making processes and its inherent shortcomings, such as an absence of transparency and a lack of arbitrator independence, have impelled moves to redesign the system. As a leading actor in the international investment landscape, the European Union (EU) has proposed replacing traditional arbitration with a specific court system for each bilateral agreement containing investment arrangements. However, the proposed system retains key aspects of classic arbitration whilst posing as yet unresolved issues in relation to the interaction with the EU Court of Justice and the current institutions of international arbitration. Nevertheless, the EU’s initiative is intended merely as a transitional remedy, ultimately leading to a multilateral judicial institution that would ...

This article critically assesses the feasibility of the recently proposed Investment Court System (ICS) under the envisaged Transatlantic Trade and Investment Partnership (TTIP), from the perspective of the Court of Justice of the European Union (CJEU). It is argued that an ex ante assessment of the ICS by the CJEU would likely result in several incompatibilities between the ICS and EU law, since insufficient safeguards exist guaranteeing that the ICS will not interfere with EU fundamental rights and the CJEU’s exclusive jurisdiction to deliver binding interpretations of EU law. Moreover, it is not yet certain whether an incompatibility exists with Article 344 TFEU or with substantive EU values. Furthermore, no preliminary reference mechanism is envisaged with a binding ruling of the CJEU and even if such a system were included, it is uncertain whether the ICS could refer a question to the CJEU.

In this paper we assess the quality and coherence of the use of economics in dispute settlement in two fields of international economic law: international trade and international investment law. We argue that four economic concepts are frequently used and/or of critical importance for both international trade and investment law. Those concepts are the concepts of "likeness"/"like circumstances", causality, "necessity" and damage calculation. We highlight differences in the way in which economics has been applied to assess these concepts and argue that coherence in the use of economics can be increased by reassessing the way in which economics is brought into submissions by parties and the processes that are relevant for adjudicators when interpreting economic evidence. We argue that a common set of guidelines for submitting quantitative evidence in WTO or investor-state dispute settlement proceedings can contribute greatly to setting quality standards and to creating trust as to the reliability and acceptability of economic evidence submitted to adjudicators. In an appendix to this paper we make suggestions as to what such guidelines could look like.

The current dominant system for resolving international investment disputes is the Investor-State Dispute Settlement system or, more precisely, the Investor-State Arbitration system (ISA). The ISA system has proved to be an effective avenue for remedy for foreign investors whose investments are wrongfully impaired by host states. However, the system is not accessible to Host State Citizens (HSCs) whose interests may be harmed by investors. Wronged HSCs can seek re- dress in domestic fora only. The domestic fora in many jurisdictions leave many wronged HSCs without remedy, a problem that has long been acknowledged. This Essay proposes a solution. It proposes that access to remedy for wronged HSCs can be operationalized within the existing arbitration system (or integrated into a future international investment court system that may eventuate). This can be achieved by expanding the current ISA system to be a more inclusive system that allows all affected persons—investors and non-inve...