ECIPE Lunch Seminar: ISDS and Schizophrenia in the EU about - - PowerPoint PPT Presentation

ecipe lunch seminar isds and schizophrenia in the eu
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ECIPE Lunch Seminar: ISDS and Schizophrenia in the EU about - - PowerPoint PPT Presentation

ECIPE Lunch Seminar: ISDS and Schizophrenia in the EU about International Law Marco Bronckers & Freya Baetens 26 February 2015 Rue Belliard 4-6, 1040 Brussels Leiden University. The university to discover. Overview 1. Reason behind


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Leiden University. The university to discover.

ECIPE Lunch Seminar: ISDS and Schizophrenia in the EU about International Law Marco Bronckers & Freya Baetens

26 February 2015 Rue Belliard 4-6, 1040 Brussels

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Leiden University. The university to discover.

1. Reason behind creation of investment law and ISDS 2. Common misunderstandings concerning ISDS 3. Possible Improvements of investment law/ISDS 4. Role of domestic courts

Overview

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Leiden University. The university to discover.

  • Reaction against arbitrary expropriation and

discrimination of foreign property

  • Solution: establishing universal ‘minimum

rights’ for all investors (cfr human rights law)

  • Reaction against diplomatic protection
  • Solution: private standing before international

tribunal

  • State-to-state arbitration?

Reason behind the creation of investment law and ISDS

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Leiden University. The university to discover.

  • System is used by middle-sized/small investors
  • Most cases are won by states
  • Most investors are from EU (mainly Netherlands,

UK and Germany) - very few claims against EU countries

  • Claims most often concern specific

administrative or executive acts affecting one particular investor

  • not general regulation or legislation
  • ‘regulatory chill’ not supported by evidence

Common misunderstandings concerning ISDS

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Leiden University. The university to discover.

  • Investment treaties protect investments –

should also promote development of host state: more balanced treaty-drafting required, e.g.:

  • Restrictive definition of investor/investment
  • Clear definition protection standards
  • Excluding umbrella clauses and market

access rights

  • Incorporating public policy protection

Possible improvements of investment law

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Leiden University. The university to discover.

  • Qualifying procedural access to ISDS
  • Exhaustion of local remedies vs fork-in-the-road

clause

  • Frivolous claims safeguard and ‘loser pays’ principle
  • Mediation as mandatory precursor/alternative to

ISDS

  • Building safeguards into the arbitral process
  • Transparency and active role for third parties
  • Code of conduct and roster for arbitrators
  • Appellate mechanism and/or permanent courts?

Possible Improvements of ISDS

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Leiden University. The university to discover.

The role of domestic courts

  • Do we accept international standards
  • n investment protection?
  • If so, do we accept private treaty-

based claims in court?

  • If so, do we trust our courts to be

independent and effective?

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Leiden University. The university to discover.

  • Correct and complete information for law/policy-

makers and public

  • Advantage of general concerted EU strategy
  • Model for future treaties:
  • Negotiation leverage with other countries
  • Unique possibility to set major example =

catalyst for improvement global investment law

  • Rethink role of domestic courts

Conclusion