Abstract Current debates on environmental actions in trade remain focused on the “general exceptions” under the GATT/WTO. While recognizing the value of such exceptionalist approach, this paper argues for new approaches to address the growing trade – environment nexus. Given the daunting challenges in achieving consensus for new WTO rules, updated interpretation of the existing provisions could be a helpful solution. Among others, non-product-related process and production methods (PPM s) deserve prioritized attention as environmental policies increasingly target embedded emissions and lifecycle carbon footprints. Using the recent EU – Palm Oil disputes as a focal point, this paper proposes an updated understanding of PPM s under the classic ‘likeness’ test. While acknowledging the enduring challenges in policy design and implement, this approach seeks to strengthen State’s ability to enforce proactive environmental policies without compromising their WTO commitments.
Abstract This article seeks to trace how the multilateral processes of deliberation, debate, and decision-making within the United Nations Commission on International Trade Law (UNCITRAL) shape the outcomes that are emerging from the negotiations on reform of investor-State dispute settlement (ISDS) in Working Group III. The article explores how the Working Group came to receive its mandate and how that mandate was defined, before turning to its working methods. After identifying key junctures and decision-making points in the eight years of negotiations, highlighting how the Working Group’s methods and procedures have influenced the framing and resolution of contentious issues, the article reviews the status of each of the current ‘reform elements’ under development. This is also an opportunity to consider the way in which issues have been grouped together and what has slipped off the agenda. A final section introduces the other contributions to the Special Issue.
Abstract This article explores how Free Trade Agreements (FTAs) can advance inclusive entrepreneurship by addressing the needs of micro, small, and medium-sized enterprises (MSMEs) owned or led by underrepresented and disadvantaged social groups (URDSGs). Despite MSMEs being central to global economies, their diversity and the social challenges faced by certain entrepreneurs are often neglected in international economic law (IEL). FTAs are increasingly incorporating preferential provisions to reduce barriers for URDSG-owned MSMEs. Institutional frameworks, like MSME-focused Committees, reflect a growing emphasis on inclusivity within IEL benefiting small businesses run by URDSGs. However, many existing measures fail to adequately address the specific obstacles faced by disadvantaged entrepreneurs. By refining FTAs to better support URDSG-owned MSMEs, policymakers can harness their potential to drive equitable economic development and foster a more inclusive global trading system.
Abstract The article reconceptualises counterclaims and damage assessment in investor–state dispute settlement (ISDS) as mechanisms for enforcing investors’ human rights and environmental obligations against the analytical background of a matrix of regulatory instruments. Drawing on the practice of ISDS tribunals, it identifies three key priorities for ISDS reform: clarifying investor obligations through explicit codification in investment agreements while remaining open to domestic and evolving legal standards; defining procedural rules for host state counterclaims to strengthen accountability without undermining states’ regulatory responsibilities; and ensuring that investor misconduct in environmental and human rights matters is treated as a distinct factor in damage assessment rather than being subsumed under contributory fault. This need for reform is being addressed only selectively in the ongoing negotiations of UNCITRAL Working Group III (WGIII), where the substantive dimension of investor obligations has increasingly been diluted amid political divergences among states. While WGIII’s current approach to codifying counterclaims could enhance clarity and flexibility, the treatment of damage assessment continues to generate uncertainty, as violations of environmental and human rights obligations are not yet explicitly recognised as distinct mitigating factors.
Abstract The question of damages remains among the most contentious issues in investor-State dispute settlement (ISDS), and an ongoing focus of reform discussion in UNCITRAL’s Working Group III. There is a perception that the practice of ISDS tribunals has been too favourable to investors, particularly in the award of damages for lost profits. We compare ISDS to the practice of other international courts and tribunals. While many international courts and tribunals start from the principle of full reparation, we show that they have developed a relatively more cautious approach to valuation. This is because mid-level principles relating to the scope of compensable loss, the requirement of causation and the standard of proof shape their application of the full reparation principle. We argue that ISDS tribunals have not adequately engaged with these principles. On this basis, we propose options for inclusion in future Guidelines on the calculation of damages and compensation.
Abstract This Article contends that ongoing reform efforts in international investment law and arbitration fail to address the problem of discretion and will therefore be ineffective in addressing the regime’s legitimacy deficits. While discretion is a necessary feature of adjudication, the institutional context of investor-State dispute settlement (ISDS) – where privately appointed arbitrators intrude on the policy space of host States – raises distinct concerns. Despite efforts by tribunals and States to rebalance the regime through doctrinal moderation and treaty reforms, such measures fail to meaningfully constrain discretion. Procedural reform proposals under consideration by UNCITRAL Working Group III likewise require discretionary judgment in application. As a result, key legitimacy concerns about regulatory chill and arbitrator competence will persist. Thus, even if incremental reforms succeed in promoting better outcomes and a more balanced jurisprudence, the regime’s long-term legitimacy likely depends on more fundamental changes to its institutional structure.
Abstract This article examines the role of Investor-State Dispute Settlement (ISDS) in the context of the Russo-Ukrainian conflict, challenging the narrative of ISDS as a depoliticised forum. Since Russia’s annexation of Crimea in 2014 and its full-scale invasion in 2022, proceedings under the Russia–Ukraine Bilateral Investment Treaty (RUBIT) have emerged as a distinct front of legal contestation. Drawing on arbitral practice, including claims by Ukrainian and Russian State-owned enterprises (SOEs), the article argues that these disputes are inseparable from the geopolitical conflict in which they arise. It develops a typology between isolated and cluster disputes, showing that the RUBIT cases fall within the latter. Within this category, varying degrees of politicisation emerge: disputes involving private actors engage questions of territorial transformation, while SOE disputes intensify this dynamic by blurring the investor-State boundary. ISDS thus re-stages, rather than removes, politics in legal form.
Abstract Current efforts to modernise investor-state dispute settlement (ISDS) commonly envisage the establishment of an appellate mechanism, marking a departure from the traditional preference for annulment as the principal remedy to challenge arbitral awards. This article analyses the differences and similarities between the mechanisms of annulment and appeal, notably in respect of their function, scope of review, and available outcomes. It then assesses the combined approach seen in recent proposals for a future appellate mechanism, which include not only common grounds of appeal that target errors of fact or law, but also classic annulment grounds that focus on issues of jurisdiction and procedure. The article concludes that annulment grounds can continue to fulfil a useful function alongside grounds of appeal, by ensuring not only the substantive correctness of the decisions under review but also the procedural legitimacy of the first-instance proceedings.
Abstract Concerns about provisions on the right to regulate and the extent to which a state’s right to regulate for the public interest remain a contentious issue. UNCITRAL Working Group III proposes a formulation of the right to regulate in its Draft provisions on procedural and cross-cutting issues to balance state’s regulatory interests with investment protections in ISDS. This article proposes to focus on deference as included in the Draft provision 19 on the right to regulate. It suggests providing a deeper understanding of the current practice of deference in arbitral decision-making to assess the benefits of such proposal. It therefore asks: how is deference applied by ISDS tribunals in environment-related cases? To answer this question, the article defines the concept of deference and its different levels and then analyses the level of deference applied by arbitral tribunal in environment-related ISDS cases. The analysis demonstrates the variation and inconsistent application of deference, thus showing the complexity and flexibility of the concept of deference. It then concludes by reflecting on the limited contribution of deference for balancing the protection of the States’ regulatory space and the protection of foreign investment.
Abstract The COVID-19 pandemic exposed both the fragility of global medical-product supply chains and the limited capacity of WTO rules to address pandemic preparedness and emergency trade restrictions in a coherent manner. At the same time, the 2025 WHO Pandemic Agreement introduced a new normative framework focusing on preparedness, resilience, and equitable access to pandemic-related health products. Against this backdrop, this paper argues that WTO law and institutions should be recalibrated to support, rather than merely tolerate, the fair distribution of essential medical products during future public health emergencies. It first examines the normative architecture of the WHO Pandemic Agreement and its mechanisms for coordinated production, allocation, and regulatory convergence. It then treats the COVID-19 pandemic as a stress test for WTO disciplines, identifying structural shortcomings that undermined the fair and equitable distribution of essential medical products. Drawing on a doctrinal and systemic analysis of GATT provisions, WTO jurisprudence, and the WTO’s institutional architecture, the paper contends that the prevailing exceptions-based approach remains overly reactive and insufficiently attentive to preparedness-oriented governance, while relevant WTO committees have yet to develop a holistic response to supply-chain resilience in times of global health crisis. To address these deficiencies, it advocates a systemic interpretative approach under which WTO adjudicators may take into account relevant provisions of the WHO Pandemic Agreement when resolving disputes arising from trade measures affecting medical-product supply and distribution. In addition, the paper outlines avenues for strengthened institutional cooperation between the WTO and the treaty bodies established under the WHO Pandemic Agreement, including enhanced committee functions, structured inter-institutional coordination, and crisis-response mechanisms. In so doing, it seeks to align trade governance more closely with global health imperatives at a time of deepening public health vulnerability and rising unilateralism.
Abstract The rise of the ‘data economy’ in the 21st century has remarkably transformed the business landscape, driving massive data collection and processing by tech companies. In this context, state-imposed restrictions on data flows can reduce the economic value of data as a corporate asset. A key question in this regard is whether the data collected and processed by such companies should be deemed an investment and, therefore, protected under international investment treaties. This article examines how data may qualify as a ‘covered investment’ under international investment agreements (IIAs) and which protection standards it may trigger under such treaties. The research further analyzes how interpretation rules, joint interpretative declarations and amendments, as proposed by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III, can adapt investment treaties to the challenges of the digital economy, particularly in clarifying the status of data within the investment framework.
Abstract Hydrogen is a promising fuel because it does not emit GHG emissions during its use, and could replace incumbent fossil fuels (coal, natural gas, oil) in heavy industries and transport sectors. Emphasis must be on hydrogen’s production process, as it is mostly produced from unabated fossil fuel sources. Moreover, there is presently no regulatory alignment as to what constitutes clean hydrogen, or methodology to account for GHG emission during the production process in guarantees of origin schemes. In turn, the regulatory diversity could create barriers to the trade of hydrogen and its derivatives across jurisdictions. This article examines whether the WTO rules on the trade in goods allow Members to create barriers to the trade of hydrogen produced with unabated fossil fuels. The EU is an interesting case study, as it gives a regulatory preference for green and low-carbon hydrogen, and prohibits Member States from recognizing third-country guarantees of origin.
Abstract ISDS reform is widely perceived as State-driven, especially in the context of the UNCITRAL Working Group III (WGIII). While schol-arly discussions have highlighted the significance of international organisations in the historical evolution of ISDS, their role in con-temporary reform remains under-explored. This article analyses the engagement by the ICSID, the OECD, and the UNCTAD with the UNCITRAL reform as case studies and conceptualises the role of international organisations as agents of legal development. The main claim is that international organisations not only provide forums for ISDS reform but also to varying degrees shape the lawmaking pro-cess. The effectiveness of institutional intervention relates to the interpretation of organisational mandates, the choice of legal tech-niques, and the coordination of inter-organisational relationships. These findings have practical implications for relevant contested is-sues in the WGIII, including those pertaining to the scope of the mandate, the forms of reform outcomes, and the use of working methods.
In the last decade, there has been a sharp rise in the establishment of investment screening mechanisms. Although several recent studies have been dedicated to identifying the main factors driving the rise in investment screening mechanisms, few studies provide a truly global or historical picture. Most studies focus on the growth of investment screening mechanisms after 2020. This paper goes beyond recently published studies by investigating the foundations of investment screening mechanisms and establishing that while new developments appear unprecedented, investment screening mechanisms are as old as modem international investment law. It traces the key trends that have existed since the 1950s and classifies these mechanisms based on domestic investment laws and the activities of investment promotion agencies. It links key developments over the last seven decades to important milestones in the history of international economic law and the investment treaty practice of states.
As foreign direct investment (FDI) screening mechanisms proliferate globally, the European Union (EU) faces a unique legal challenge: reconciling national security concerns with its foundational commitments to the internal market, particularly the freedoms of capital and establishment enshrined in the Treaty on the Functioning of the European Union (TFEU). This article critically examines the intersection of FDI screening and the freedom of establishment under Article 49 TFEU, arguing that the increasing regulatory scrutiny of foreign investments risks undermining the legal certainty and scope of establishment rights within the EU. The article contends that national FDI screening regimes, particularly those involving prior authorization and vague public security criteria, may disproportionately affect companies established in the EU by foreign nationals, thereby infringing on their right to establish and operate across Member States. The article further highlights the tension between Member States' discretion in safeguarding national security and the EU's obligation to uphold fundamental market freedoms. It concludes that without clearer harmonization and stricter proportionality standards, FDI screening risks becoming a disguised restriction on the freedom of establishment, threatening the integrity of the EU's internal market.
This paper examines the role of investment control in protecting maritime infrastructure in Europe, with a focus on strategic ports, offshore energy facilities, and submarine cables. Spurred by controversies like the Chinese COSCO investment in Hamburg, the analysis explores the international and European legal frameworks governing foreign investments, including the EU Screening Regulation and national mechanisms like Germany's Foreign Trade and Payments Act. The paper highlights gaps in existing regulations, such as the lack of centralized EU screening authority and inconsistent national approaches, which undermine the protection of critical maritime infrastructure. It also evaluates the potential of the new EU Foreign Subsidies Regulation (FSR) as an alternative tool for addressing foreign-funded investments that may distort the internal market or threaten security. The paper ultimately proposes reforms to harmonize and strengthen investment control measures in Europe, emphasizing the need to balance security concerns with economic openness.
The rise of investment screening represents one of the most important developments in domestic and international economic law in recent years. Unprecedentedly, States have introduced new screening processes that have changed the DNA of foreign investment rules in many jurisdictions. This invites a more fundamental reflection on the role that international economic law can play in the current decade - a decade that may well mark a new geopolitical era of economic conflict, potentially embedded in larger political and military conflicts. The Introduction provides a tour d'horizon that situates investment screening within this broader picture. It outlines the significant role of the new geopolitical rivalries and their legal approaches to investment screening, sketching the potential of the comparative analysis undertaken by their contributions to the Special Issue. The introduction ends with a reflection on how the current system of international economic law must increasingly be considered a misfit for new political realities.
