Abstract Mediation is getting renewed attention as an alternative means of resolving international investment disputes. A critical question in accommodating mediation within investment disputes is how to ensure the enforcement of a settlement agreement resulting from the mediation. In this respect, the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the ``Singapore Convention'' or the ``Convention'') offers a meaningful benchmark for designing mediation and the enforcement of mediated outcomes in investment disputes. Notably, the Convention adopts a ‘parallelism structure’ in which the enforcement obligation is juxtaposed against grounds for refusal of enforcement. The parallelism approach in the Singapore Convention, with various refusal grounds stemming from the conduct of mediation, stands to invite easy challenges to prospective enforcement. The concern becomes acute given the inherent and embedded flexibility in mediation. The structural tension arising from the ‘enforcement–refusal’ parallelism design in the Singapore Convention offers an important lesson in designing enforcement mechanisms for mediated outcomes in investment disputes. In particular, the fine line between flexibility and due process should be clarified and elaborated in instruments covering future investment dispute mediation.
Scholars generally agree that the handling of compensation for moral damage claims in treaty arbitration has been unsatisfactory due to the lack of guidelines or methodologies. The difficulties in finding appropriate quantification methodologies are apparent, as moral harm to an individual results in the loss of an intangible asset: a diminution in the quality of life, whether temporary or permanent. Intangibles, in turn, are challenging to quantify because they typically do not or cannot have an actively traded market. Yet, economists, across a range of fields, have long resorted to hedonic models and willingness-to-pay methods that consistently assign monetary values to such intangible assets. This article introduces these concepts from an economic perspective and illustrates how quantum experts may apply them to derive moral harm compensation tailored to individuals in the context of treaty arbitrations. Quantifying moral damages is thus not impossible; through proper methodologies and expert evidence, parties and arbitrators alike can assess monetary compensation to harmed individuals, thereby making sense of the full reparation principle and helping to deter wrongful behavior by States.
With increased attention to digital assets' relevance to international investment law, data as the fundamental asset of the digital economy requires an in-depth exploration. This article shows that the most adequate approach is to disaggregate the notion of data instead of generalising or dichotomic conclusions about whether data falls within or outside the scope of protected investments. To do so, it shows the need to differentiate beyond binary distinctions such as personal/non-personal or raw/processed data. Such disaggregation and differentiation lead to two discussions. First, the relationship between data as an investor's asset and its commodification as property under domestic law can exceptionally entail a fundamental challenge for, notably, personal data's status as investor property. Second, the type of data, its articulation with connected notions such as information, knowledge and wisdom, and the establishment of a territorial link, all raise crucial questions for the assessment of whether data is an asset protected as an investment. The conclusion is that it might be less necessary to adapt international investment law to more clearly include data and other digital assets as suggested by calls for such adaptation, whose implications might also be questionable.
This case comment examines the ICSID tribunal’s controversial decision in Smurfit Holdings BV v Venezuela, which upheld jurisdiction over claims filed more than six years after Venezuela’s denunciation of the ICSID Convention. The comment argues that simply focusing on a familiar debate over whether Article 72 preserves only mutual consent or can also preserve a unilateral offer to arbitrate is incomplete. That the term “consent” in Article 72 may plausibly encompass a State’s unilateral consent under a BIT does not resolve the separate question whether such unilateral consent can generate “rights or obligations under this Convention” to be preserved under the Article. On this question, this comment criticizes the Smurfit majority for failing to explain how an obligation existing under the BIT becomes an obligation under the ICSID Convention without the acceptance by an investor. It also criticizes the majority’s "holistic" reading of the BIT and the Convention as a matter of treaty interpretation. Finally, it highlights a further structural problem: if post-denunciation protection is preserved only for investors from the non-denouncing State, the result is a one-sided regime that sits uneasily with the BIT’s promise of reciprocal protection. Thus, the comment shows the points which future tribunals would need to clarify if they wish to adopt the Smurfit approach.
The CJEU Decisions (as defined in this article) have all but put paid to investment protection by way of international arbitration in an intra-EU context.The import of the CJEU Decisions - as it has been interpreted - has regularly been disallowed by international tribunals, annulment committees and (extra-EU) national courts. Still, such judicial bodies have not had reason to explore the multiple concerns on many levels that are raised by the CJEU Decisions considering their having been tasked with the resolution only of those issue(s) that have been submitted by the parties and which are, additionally, dispositive for their resolution in any given instance. And, as a consequence, it stands to reason that the wealth of commentary that has been generated by the CJEU Decisions has also, by and large, limited itself to discuss the reasoning of the CJEU and of national courts of Member States and international arbitration tribunals.This article seeks to undertake a wider examination of a plurality of aspects of international and private law that are raised by the CJEU Decisions. The conclusion that this examination leads to is that the CJEU Decisions represent pronouncements on the desirable policy - in the Court's view - on intra-EU investment protection by way of post-factum judicial process, rather than on any disciplined application of principles of international law. By the same token, the article stresses the importance of reserving the adoption of such policy decisions to the parliamentary assemblies of the EU and its Member States.
Source code is crucial for both States and enterprises in foreign investment, especially as technological competition becomes increasingly fierce. The performance requirement prohibition clause is central to source code protection within international investment agreements (IIAs), albeit with certain limitations. The approaches adopted in recent regional trade agreements that address source code protection can shed some light on enhancing the protection of source code in IIAs. The future IIAs can be reformed by incorporating an independent source code protection clause, while carefully balancing these provisions with necessary exceptions. Since source code is not only crucial for facilitating foreign investment but also intertwined with national security interests, the approaches to reforming IIAs may differ significantly from State to State.
Should a waiver of immunity from jurisdiction entail a waiver of immunity from enforcement of a judgment debt against a State's assets? The accepted wisdom in many jurisdictions was that there is no 'double waiver'; in the context of arbitral awards and foreign judgments, a specific and separate waiver of immunity from enforcement measures is required. The International Court of Justice similarly took the view that any waiver of jurisdictional immunity before a foreign court does not in itself mean that that State has waived its immunity from enforcement against State property situated in foreign territory. This article questions this approach and considers whether the time is ripe to reconsider the 'double waiver' principle. From the perspective of principle, the 'double waiver' would simplify the enforcement of arbitral awards and better reflect the assumptions of the drafters of key international conventions and domestic laws on immunity. As a policy, the 'double waiver' principle would enhance the integrity and predictability of international dispute settlement, including the role of courts in facilitating the arbitral process. As regards practice, a survey of 20 jurisdictions reveals there are a number of States that accept the 'double waiver' principle, undermining the assumption that the strict distinction between adjudicative and enforcement jurisdiction is customary international law. The article concludes with reflections on the ripple effects that the wider adoption of the 'double waiver' principle may trigger.
This article examines emerging treaty practices to safeguard public health measures from liability under investor-State dispute settlement (ISDS). Although States have traditionally relied on 'right to regulate' clauses, general exceptions and clarifications to substantive obligations, recent disputes show that such provisions often fail to block investor claims. As COVID-19-era measures and evolving public health regulations fuel further litigation, States have increasingly considered a more direct approach: excluding health-related measures entirely from the scope of ISDS. While this exclusionary method holds promise for minimising arbitral exposure, it raises new interpretive uncertainties. Tribunals may adopt restrictive readings of a 'public health' measure or invoke proportionality analyses undermining the exclusion's intended effect. The article explores how these textual ambiguities may hinder the policy space that States seek to preserve. It concludes by offering practical drafting recommendations-such as clearer definitions and explicit guidance on evidentiary thresholds-to ensure that ISDS exclusions operate predictably and effectively. By refining how exclusions are framed, States can better protect their authority to enact public health measures without incurring unintended liability in investment arbitration.
This article investigates how States have reflected the urgent need for climate action in their international investment agreements. It reviews the wording of 109 international investment agreements that contain specific climate change language. The practice is slowly gaining momentum across States and grouping of States, but concerns at present chiefly the EU, Chile, the UK, New Zealand and Australia. The review indicates that the overwhelming majority of States did not consider that the urgent need to implement climate actions required them to update their international investment agreements. The few States that did so merely shoehorned climate change considerations into their traditional environmental clauses, although new practices are emerging in this area. In addition, the few investment treaty parties that engaged with climate change did not seek to make climate-friendly investments markedly more attractive than climate-neutral or climate-hostile ones. The main obligations that they created in respect of climate change mirror largely those existing under the climate change regime and relate to cooperation, facilitation and promotion activities. The normative content of these obligations is even more diluted when they are worded-as is often the case-as obligations to make efforts to cooperate, to promote or to facilitate. States also sought to shield the parties' ability to adopt climate change measures through clauses protecting their regulatory powers, borrowing often from the wording of the so-called second generation of investment treaties. Recent practice in the context of the Energy Charter Treaty allows individual parties to reduce the investment treaty protection they grant with respect to existing or future fossil fuel investments. Although much more is required for investment treaties to reflect the urgent need for climate action fully, including more significant participation of non-Annex I countries in the practice, the wide breadth of the clauses surveyed suggests that all the key elements of a multilateral agreement on investment, trade and climate change are on the table.
