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Reasons not to exit? A survey of the effectiveness and spillover effects of international investment arbitration

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Abstract

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.

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Fig. 1

Source: Author’s calculations based on data from the World Bank

Fig. 2

Source: Author’s calculations based on UNCTAD data

Fig. 3

Source: Author’s calculations based on UNCTAD data

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Notes

  1. UNCTAD data on treaty-based disputes show the top 6 cases where more than USD 1 billion of compensation were awarded to foreign investors as of December 2017: Crystallex v. Venezuela (USD 1,2 billion), Mobil and others v. Venezuela (USD 1,6 billion), Occidental v. Ecuador (USD 1,7 billion), Hulley Enterprises v. Russia (USD 40 billion), Veteran Petroleum v. Russia (USD 8,2 billion), Yukos Universal v. Russia. More information on: http://investmentpolicyhub.unctad.org/ISDS/FilterByAmounts. Accessed July 1, 2018.

  2. More information on: https://icsid.worldbank.org/en/Pages/about/Database-of-Member-States.aspx#. Accessed July 1, 2018.

  3. More information on http://investmentpolicyhub.unctad.org/IIA/. Accessed July 1, 2018.

  4. Source: https://www.beehive.govt.nz/sites/default/files/2017-11/PM%20Press%20Conference%2031%20October%202017_0.pdf. Accessed July 1, 2018.

  5. As of December 2017, according to UNCTAD data, New Zealand has not experienced any treaty-based dispute as respondent state or home state of investors. See http://investmentpolicyhub.unctad.org/ISDS. Accessed July 1, 2018.

  6. The authors use Worldwide Governance Indicators (WGI) project data.

  7. The arbitrator adopts expansive or restrictive approaches to respectively increase or reduce the damage awarded to claimants, and the risk of liability for respondents. E.g. with respect to the concept of "corporate person investor", a tribunal adopting a restrictive approach would refuse a claim brought by a foreign company owned and controlled by nationals of the host state whereas an expansive approach would be characterized by allowance of this claim. The author notes also that the coding process considers only resolution of an issue which depends largely on the arbitrator’s discretion. This means that if the treaty provides some "guidelines" about how it should be resolved, the resolution is excluded from the database. The database contains 515 individual arbitrator decisions on the resolution of jurisdictional issues for 115 awards. See Harten (2012), appendix two.

  8. See cases: Emmanuel Too v. Greater Modesto Insurance Associates and USA (award dated December 29, 1989), administered by the Iran-United States Claims Tribunal; Methanex v. USA (award dated August 3, 2005), administered by ICSID under the UNCITRAL arbitration rules; Saluka v. Czech Republic (partial Award dated March 17, 2006), administered by the Permanent Court of Arbitration under the UNCITRAL arbitration rules. In the case of Tecmed v. Mexico, the ICSID tribunal said in the final award dated May 29, 2003 that "the principle that the state’s exercise of its sovereign power within the framework of its police power may cause economic damage to those subject to its powers as administrator without entitling them to any compensation whatsoever is undisputable". However, while most international investment treaties provide protection against indirect expropriation or measures tantamount to expropriation, they do not highlight the treatment of the non-compensable governmental regulation. Moreover, the line between indirect expropriation and non-compensable regulatory measures has not been systematically clarified in arbitral jurisprudence, and depends on the facts of each case. See OECD (2004) for more information.

  9. Case Pac Rim v. El Salvador, case Commerce Group v. El Salvador.

  10. Case Aven and others v. Costa Rica.

  11. Case Compañía de Aguas del Aconquija v. Argentina, case Eureko v. Poland, case CME v. Czech Republic.

  12. Case CMS v. Argentina, case Occidental v. Ecuador.

  13. Case Eureko v. Poland, partial award dated August 19, 2005, paragraph 145.

  14. According to Boute (2012), among green certificates, feed-in-tariffs, and premium schemes, only green certificates qualify as individual investments that could be subject to partial expropriation, because they are usually and independently tradable in a secondary market. Tariff-based mechanisms such as feed-in tariffs or premium schemes usually entitle the operators of renewable energy installations to fixed prices. Since this fixed support may not be traded independently from the main electricity transaction, it may not easily qualify as an independent investment when the tribunal examines a state interference.

  15. More information on: https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-3735364_en. Accessed July 1, 2018. See also case Blusun v. Italy, award dated December 27, 2016; case Charanne and Construction Investments v. Spain, award dated January 21, 2016.

  16. Case Empresa Nacional de Electricidad v. Argentina.

  17. Case Blusun v. Italy.

  18. Case Charanne and Construction Investments v. Spain.

  19. Case Eiser and Energía Solar v. Spain, case Isolux v. Spain.

  20. Case JSW Solar and Wirtgen v. Czech Republic.

  21. In Eiser and Energía Solar v. Spain, the investors successfully recovered over USD 139 million from Spain. All the claimants’ claims were dismissed at the merits stage in the other four cases.

  22. More information on: http://curia.europa.eu/juris/document/document.jsf?text=&docid=199968&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=404057. Accessed July 1, 2018.

  23. Drugs are commonly used to treat attention deficit disorders such as hyperactivity disorder, schizophrenia and bipolar disorder.

  24. There is also an intellectual property dispute concerning public health regulations between Shell and Nicaragua. However, this ICSID arbitration was discontinued by a pre-award settlement. The details of the settlement deed were not made public.

  25. The law and economics approaches to judicial behavior try to discover how the interaction between the law and non-legal factors influences arbitrators’ decision-making. The starting point of this economic analysis is that, like everyone else, arbitrators as well as both parties to the dispute are maximizers of their own utility (financial and non-financial interests including but not limited to arbitral (re)appointments, reputation of the host state, or future investment opportunities for investors).

  26. The authors state that under certain conditions, including interpretation of article 72 of the ICSID Convention on the validity of consent to the jurisdiction of the Centre, the wording used in the dispute settlement provisions of investment treaties or the period of 6 months before date of entry into effect of the denunciation, the country’s decision to withdraw from the ICSID Convention may have no impact on the binding consent granted by the host state in its treaties to refer disputes to ICSID arbitration.

  27. Article 11 of the Vienna Convention on the Law of Treaties (1969): Means of expressing consent to be bound by a treaty.

  28. Article 39 of the Vienna Convention on the Law of Treaties (1969): General rule regarding the amendment of treaties.

  29. Among the options, UNCTAD proposes also termination of old investment agreements. However, UNCTAD and Peinhardt and Wellhausen (2016) recommend that this option should apply only when the country's treaty network is too dense and overlapping, and is causing inconsistencies in the application of international law (e.g. regional FTAs overlap with bilateral agreements in the region).

  30. This solution can reduce transaction costs significantly and does not alter the overall design and philosophy of the old agreement (UNCTAD 2017).

  31. This means also that a BIT can be replaced by a FTA with an investment chapter. E.g. Panama-Mexico BIT (2005) is replaced by Mexico-Panama FTA (2014), Nicaragua–Taiwan BIT (1992) is replaced by Nicaragua–Taiwan FTA (2006), EU–Viet Nam FTA will replace 22 BITs between Vietnam and EU member states.

  32. As an illustration, to ease the tension between public health and intellectual property, Vadi (2009) and Mercurio (2012) suggest borrowing the TRIPS agreement language (compulsory license, article 31 of the TRIPS agreement) to allow a government to authorize a third party to "use" intellectual property rights in the public interest and without discrimination, without the consent of the rights holder. See examples in Korea-United States FTA (2007), Australia-Chile FTA (2009), New Zealand-China FTA (2008).

  33. According to Boute (2012), an expansive concept of "investment" in the treaty should cover low-carbon investors’ rights associated to public support schemes, given the vulnerability of this kind of investment.

  34. Peterson and Gray (2003) propose another solution to inject private responsibilities into an investment treaty. Accordingly, a treaty may require investors’ compliance with minimum human rights or environmental protection responsibilities, as well as other rights set out in domestic law (e.g. contribution to the host state’s economic development) as a condition for invoking international arbitration. See examples in Burundi-Turkey BIT (2017), Ukraine-Turkey BIT (2017), Turkey-Mozambique BIT (2017).

  35. As of end 2017, 138 terminated investment agreements had been replaced by new ones, 81 agreements had been denounced unilaterally, 20 agreements had been terminated by mutual consent, 3 agreements had expired. More information on: http://investmentpolicyhub.unctad.org/IIA. Accessed July 1, 2018.

  36. FTAs between the EU and Japan were signed in July 2018. However, this instrument does not include the investment chapter or the mechanism for resolving investment disputes between investors and host states, given the divergence between the EU and Japan on the initiative to create a permanent multilateral court. See Roberts (2018). This divergence is found also in the cases of Canada and Mexico. In the new CPTPP agreement, Canada and Mexico agree to maintain the traditional approach to ISDS. By contrast, in their respective agreements with the EU, they favor establishing a permanent investment court (UNCTAD 2018).

  37. https://www.cancilleria.gob.ec/en/ecuador-proposes-new-investment-agreements-that-protect-the-country-and-defend-human-rights/. Accessed July 1, 2018

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    Duy Vu

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Vu, D. Reasons not to exit? A survey of the effectiveness and spillover effects of international investment arbitration. Eur J Law Econ 47, 291–319 (2019). https://doi.org/10.1007/s10657-019-09610-z

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