Yearbook on international investment law policy, 2013 2014

Yves Fortier Chair in International Arbitration and International Commercial Law, Mcgill University Faculty of Law, Montreal Senior Fellow, Columbia Center on Sustainable Investment Uni

YEARBOOK ON INTERNATIONAL INVESTMENT

LAW & POLICY

2013–2014

andrea k. bjorklund, editor

L Yves Fortier Chair in International Arbitration and International Commercial Law,

Mcgill University Faculty of Law, Montreal Senior Fellow, Columbia Center on Sustainable Investment

University of Geneva Law School

Andreas F. Lowenfeld, d June 2014

New York University School of Law, New York City

Austrian Federal Ministry of Economy,

Family and Youth, Vienna

Stephen M. Schwebel

Independent Arbitrator and Counsel, Washington, D.C.

Detlev F. Vagts, d August 2013

Harvard Law School, Cambridge

Louis T. Wells

Harvard Business School, Boston

George A. Bermann

Columbia Law School, New York City

Ahmed S. El Kosheri

Kosheri, Rashed and Riad, Cairo

Heidelberg Center, Santiago

Karl P. Sauvant, Founding Editor of the Yearbook

Columbia Center on Sustainable Investment, New York

Editorial Committee

N Jansen Calamita

Investment Treaty Forum,

British Institute of International and Comparative Law, London

columbia law school editorial staff

v grace davis, editor

gabriela lopez, editor farrukh malik, editorclaudie tirefort, editor hiroyuki ota, editor

niccolò pietro castagno, senior editor eno usoro, senior editor

White & Case LLP, Washington, D.C.

mcgill university faculty of law editorial staff

sarah kettani, editor

david st-onge, editor adam plenkiewicz, editoralexander spraggs, editor lukas vanhonnaeker, editor

The Editorial Committee of the Investment Yearbook thanks all those who helped in the

preparation of this publication and especially the peer reviewers, who include:Reuven Avi-Yonah

Timothy NelsonLuke NottageMartins PaparinskisJoost PauwelynMiguel PerezMatthew Porterfield

Jeswald SalacuseKarl SauvantJeremy SharpeMuthucumaraswamy SornarajahMargrete StevensLeon TrakmanAnne van AakenSamuel WordsworthKatia Yannaca-Small

COLUMBIA CENTER ON SUSTAINABLE INVESTMENT

The Columbia Center on Sustainable Investment (CCSI) is a leading applied research ter and forum for the study, practice and discussion of sustainable international investment The CCSI focuses on analyzing important topical policy-oriented issues and constructing and implementing an investment framework that promotes sustainable development and the mutual trust needed for long-term investments that can be practically adopted by governments, companies and civil society The Center undertakes its mission through interdisciplinary research, advisory projects, multistakeholder dialogue, educational programs, and the devel-opment of resources and tools The Center’s website is found at http://ccsi.columbia.edu/

YEARBOOK ON INTERNATIONAL INVESTMENT LAW & POLICY

2013–2014

EDITED BY

Andrea K. Bjorklund

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TABLE OF CONTENTS

Submission Policy xxv Contributors xxvii Foreword by Louis T. Wells xxxiii Preface by the Editorial Committee xxxvii

Lise Johnson and Lisa Sachs

3 International Investment Law and Arbitration: 2013 in Review 69Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Nicholas J. Birch, Kabir Duggal, and Joanna Coyne

PART TWO

British Institute of International and Comparative Law Introduction 155

N Jansen Calamita

4 The Principle of Proportionality and the Problem of Indeterminacy in International Investment Treaties 157

9 The Migration of Constitutional Ideas: The Strange Case of Proportionality

in International Investment Law and Arbitration 337

Valentina Vadi

10 Inconsistency in Investor-State Awards and the Role of State

Interpretations: The Example of the Mexican Sweetener Trio of Cases under NAFTA 361

Céline Lévesque

11 States Strike Back—Old and New Ways for Host States to Defend against Investment Arbitrations 401

Lars Markert and Catharine Titi

12 Revisiting the Countermeasures Defense in Investor-State

Disputes: Approach and Analogies 437

Preeti Bhagnani

13 The Political Economy of Crises and the International Law of Necessity after the Great Recession 473

Alberto Alvarez-Jimenez

14 Minilateral Treaty-Making in International Investment Law 507

Lindsey Marchessault and Michael Jarvis

17 New Regulations on Foreign Acquisitions of Land in Brazil and

18 Winning Claimant Memorial: National Law University, Delhi 621

19 Winning Respondent Memorial: University of Buenos Aires 655

DETAILED TABLE OF CONTENTS

Submission Policy xxv Contributors xxvii Foreword by Louis T. Wells xxxiii Preface by the Editorial Committee xxxvii

3 Foreign Direct Divestment 9

B Vectors of Structural Change in the Global Investment System 12

1 The Rise of the MNSOE 12

2 International Investment and Global Value Chains 17Conclusions 20

2 International Investment Agreements, 2013: A Review of Trends and New Approaches 25

Introduction 25

A Public Debate on Investment Policy 28

B The “Other” IIAs 31

1 Investor Protections 32

a Substantive Protections 32

b Procedural Protections 35

2 Investment Promotion, Economic Cooperation, and Sustainable Development 38

a Effective Enforcement, Non-derogation, and Non-lowering of Environmental or Labor Standards 39

b New Development: Non-Waiver of the Right to Regulate in the Public Interest 41

c Strengthening of Standards and Their Implementation 42

d Economic Development 43

e Consultations, Compliance, and Enforcement 45

3 The Larger Picture 48

C Canada in Africa: Heightened BIT Activity That Tracks Investments in the Extractive Industries 52

1 Performance Requirements 54

2 Protection against Breach of Investor-State Contracts 56

3 Incorporating Considerations of Domestic Policy and Corporate Social Responsibility in Investment Treaties 58

D The UNCITRAL Transparency Rules and Convention 59

1 Content of the Transparency Rules 61

2 Application of the Transparency Rules 61

3 The Transparency Convention 62

4 A Model for Broader Reform? 64Conclusion 64

3 International Investment Law and Arbitration: 2013 in Review 69

iv Sovereign Bonds 90

2 Jurisdiction Ratione Voluntatis 91

a Subject-Matter Limitation of Investment Treaty 91

b Mass Claims/Multi-Party Proceedings 92

c Jurisdiction by Means of Most-Favored Nations Clauses 94

2 Full Protection and Security 113

3 Umbrella Clause 114

4 Expropriation 115

C Compensation and Non-pecuniary Remedies 117

1 General Principle of Reparation 118

10 Currency of the Award 134

11 Arbitration Costs and Legal Representation Costs 135

12 Limitations on Compensation 137

a Causality and Remoteness of Damages 137

b Discretion and Award for Damages 138

D Procedure, Enforcement, and Annulment 139

1 Burden/Standard of Proof 139

a General Principle 139

b Burden of Proof and Jurisdictional Matters 140

c Burden of Proof and Nationality 140

d Burden of Proof and Document Production 140

2 Challenges to Arbitrators 141

a Challenges to Arbitrators and Repeat Appointments 141

b Challenges to Arbitrators and Issue Conflicts 142

c ICSID’s Manifest Lack of Qualities 144

d Challenges to Arbitrator and Swiss Verein Structures of Law Firms 145

3 Provisional/Interim Measures 146

a Provisional Measures and Statements to Media/Amicable Settlement 146

b Provisional Measures and Security Issues 146

c Provisional Measures and Advance Costs 147

d Provisional Measures and the Detention of a Ship Vessel 147

4 Third-Party Funding 148

5 Precedential Value of Earlier Decisions/Jurisprudence Constante 148

a General Rule 148

b Prior Cases and the MFN Debate 149

6 Annulment and Enforcement of Awards 150

B The Problematic Principle of Proportionality 167

1 The Normative Content of Proportionality 172

2 The Consequentialist Assumption of the Commensurability

of the State’s Interests and the Individual’s Rights 173

3 Open Questions about Weight and Decision-making Competence 175

4 Proportionality and Standards of Review 176

C A Proportionality Case Study: The Constitutional Character of Proportionality in the European Court of Human Rights 178

D Proportionality and Its Invocation and Use in Investor-State Arbitration 182

1 A Review of the Principal Awards 182

a S.D Myers and Pope & Talbot v. Canada 182

b Tecmed and Its Progeny 185

c Occidental Petroleum v. Ecuador 189

2 Summary: The Problems, Limitations, and Hazards

of Transplanting the Principle of Proportionality into International Investment Law 192

E Closing Considerations about the Persistent Problem of Indeterminacy and the Developing “New Normal” of Investment Treaty Arrangements 195

Conclusion 200

5 Proportionality, Reasonableness, and Standards of Review in Investment Treaty Arbitration 201

6 Role of Investors’ Legitimate Expectations in Defense of Investment Treaty Claims 229

A Sources of Legitimate Expectations 231

1 Rights and Corresponding Obligations under Domestic Law 231

2 Representations of the Host State 233

3 Forbearance by the Host State 235

4 Ultra Vires and Contra Legem Acts and Representations 236

B Defenses Based on the Absence of Legitimate Expectations 240

1 Jurisdictional Defenses 240

2 Merits Defenses 241

a Expropriation Claims 242

b FET Claims 244

c Umbrella Clause Claims 246

3 Defenses Regarding the Amount of Compensation 246Conclusion 247

PART THREE—GENERAL ARTICLES

7 Balancing Investor Protection and Regulatory Freedom in International Investment Law: The Necessary, Complex, and Vital Search for State Purpose 251

C Operationalizing an Inquiry into State Purpose 281

1 “Subjective” and “Objective” Evidence of State Purpose 281

2 Text, Structure, and Effect of Measure 286

3 Legislative History 288

4 Timing: Ex Post Justification? 290

5 Domestic Court Rulings 292

6 External Justification 294

7 Multiple Purposes 300Conclusion 302

8 Jurisprudential Interaction between ICSID Tribunals and the International Court of Justice 305

Introduction 305

A The Status and the Value of ICSID and ICJ Precedents in ICSID Arbitration 307

1 The Legal Status of a Precedent 307

2 The Value of a Precedent 311

a Relevance of a Precedent 311

b The Quality of the Reasoning of a Precedent 313

c Reputation of the Adjudicator 315

d Which Weighs More? 317

B Dynamics of the Jurisprudential Interaction between ICSID Tribunals and the ICJ 318

1 The Hierarchical Relationship 319

2 Degree of Reciprocal Engagement 321

3 The Function 324

a Fulfilling the Mandate of Resolving a Dispute 324

b Enhancing Persuasiveness, Authority, or Legitimacy of Individual Decisions 325

b The Same Applicable Law 331

c Multi-Sourced Equivalent Norms 332

2 Institutional Linkages 334Conclusion 335

9 The Migration of Constitutional Ideas: The Strange Case of Proportionality

in International Investment Law and Arbitration 337Introduction 337

A The Migration of Constitutional Ideas 340

Introduction 361

A Background on Non-disputing Party Submissions and on the Sweetener Cases 366

1 Article 1128 Submissions Process 366

a Arguments and Holdings Related to Article 1128 367

b Issues and Challenges Related to Article 1128 Submissions 370

2 Facts and Legal Context 372

a The NAFTA, Sugar, and HFCS in the mid-1990s 373

b The Mexican Sugar Crisis, Resulting Protective Measures, and Challenge 374

B Relationship between NAFTA’s Investment and Trade Obligations: A Question of Jurisdiction or Damages Evaluation? 376

1 Context and State Parties’ Prior Submissions 376

2 Sweetener Tribunals’ Holdings 378

a Inconsistent Holdings: ADM v. Cargill 379

b Court Decisions Rejecting Set-Aside of the Cargill

Award 382

3 Two Outcomes, Divergent Approaches, and Key Question 384

C Relationship between IIAs and International Customary Law

on Countermeasures: A Debate on the Nature of Investors’

Rights 386

1 Context and State Parties’ Prior Submissions 386

2 Sweetener Tribunals Holdings 389

a ADM and the “Intermediate Theory” of Investor

Rights 390

b CPI and the Direct and Substantive Theory of Rights 392

c Cargill—A Variation on the Direct Theory of Rights 394

3 One Outcome, Two Models, and Many Disagreements 395Conclusion 398

11 States Strike Back—Old and New Ways for Host States to Defend against Investment Arbitrations 401

A Jurisdiction and Admissibility 402

1 Definition and Legality of the Investment 403

5 Pre-Jurisdictional Phase Summary Dismissal of Cases 411

6 Conclusion on Jurisdiction and Admissibility 412

2 Non-payment of Arbitral Awards 420

3 Initiation of State-to-State Dispute Settlement 421

2 Treaty Renegotiation and Revision of Model Treaties 428

3 Discontinuing Investor-State Dispute Settlement 430

4 Influence on the ICSID Mechanism 430

5 Adoption of National Legislation Hostile to Investment Protection 432

6 Introducing Investor Obligations, Including CSR 433

7 Professionalization of Defenses/Financing of Arbitration Claims 434

Conclusion 435

12 Revisiting the Countermeasures Defense in Investor-State Disputes: Approach and Analogies 437

2 Implications for Enforcement of International Obligations 447

3 Analysis and Alternative Approach 448

C Policy Implications of a “Qualified Rights” Approach 452

1 “Depoliticization” of Investment Disputes 452

2 Continuing Significance of Investors’ Substantive Rights 454

D Comparative Contract Law 455

E International Human Rights Law 460

1 Investors’ Rights and Fundamental Human Rights 461

2 Investment Protection Obligations and Human Rights Obligation 462

F Jurisdictional Limits of Investor-State Tribunals 465Conclusion 471

13 The Political Economy of Crises and the International Law of Necessity after the Great Recession 473

A Some Aspects of the Political Economy of Economic Crises in the Aftermath of the Great Recession 474

1 Economic Crises and Political Fragmentation 474

2 The Different Phases in the Unfolding of Economic Crises 475

a Crisis Prevention or Crisis Denial 476

b Crisis Containment: “Calamity When It Comes, It Comes in

a Rush” (Philip Roth, The Plot Against America) 476

c Crisis Management/Resolution 478

d Prevention of the Next Crisis 481

3 Other Political Dimensions of the Great Recession 482

a Efficiency vs Transparency in the Resolution of Economic Crises 482

b Inter-Agency Criticism, Admission of Errors, and Unilateral Declarations Admitting Contributions to Crises 484

B The Political Economy of Crises and Its Impact on the Interpretation of BIT Non-precluded Measures Clauses and the Customary Rule of Necessity 486

1 The Politics of the Great Recession and Its Impact on the Requirement of Lack of State Contribution to Crises in BITs and

in Customary International Law 488

a Political Gridlocks and State Contribution after the Great Recession 491

b Regulatory Forbearance and State Contribution 493

c Unilateral Declarations, Admissions of Errors, Inter-Agency Criticisms, and State Contribution to the State of

a The Kind of Competent Authority as a Criterion to Determine the Existence of Alternative Means 500

b Alternative Measures during the Containment Phase 502

c Protracted Crises and the Temporal Dynamic of the Relevance of the Uniqueness Requirement 502

3 Prevention of the Next Crisis and Non-precluded Measures Clauses and the Customary Rule of Necessity 503

Conclusions 503

14 Minilateral Treaty-Making: International Investment Law 507Introduction 507

A Assessing Multilateralism in IIL 508

1 The Lack of a Broad Multilateral Framework 508

2 Overview of the Existing IIA Network 511

3 Multilateral Dimensions of the Existing System 514

4 The Shifting Global Economic Landscape 516

B Minilateral Approaches to IIL 518

1 Minilateralism in IIL 518

2 Progressive Treaty Provisions 521

3 Potential to Reduce Atomization 524Conclusion 527

15 Do Investment Promotion Agencies Promote Bilateral Investment Treaties? 529

A A Brief Introduction to BITs 530

B A Brief Introduction to IPAs 532

C Research Question and Design 534

D Results 536Concluding Thoughts 541

16 The Trend toward Open Contracting: Applicability and Implications for International Investment Agreements 553

Introduction 553

A What Is Open Contracting? 554

B Emerging Practices of Open Contracting at Different Stages of the Contracting Cycle 555

C Government Motivations for Open Contracting in Investment Contracts 560

D What Has Been the Private Sector Response? 562

1 The Place of Latin America in the Global Land Rush 572

a Foreign Investors’ Interest in Latin America’s Land 572

b The Presence of Foreign and Local Investors: A Diversity of Profiles 574

c Is There “Land Grabbing” in Latin America? 576

2 International Policy Framework to Guide Foreign Land Investments 577

a The Policy Context for Land Investments: National Policies for Foreign Access to Land 577

b International Policy and Legal Elements on Land 578

c Policy Responses to the Global Land Rush: The Guidelines on Large-Scale Investments in Farmland 579

B Identified Reasons for Regulating Foreign Acquisitions of Land in Brazil and Argentina 581

1 The Growing Concern over Foreign Ownership of Land in Eastern Latin America 581

a Concentration of Land Ownership and Agricultural Value Chains 581

b Increasing Foreign Ownership of Land or Increasing Presence of Foreigners: Two Distinct Questions 583

2 Additional Reasons Motivating the Limitations of Foreign Ownership of Land 586

a The Official Rationale Underlying the Regulation of Foreign Acquisition of Land in Brazil and Argentina 586

b The Sovereignty over Natural Resources and Food Security as

a Backdrop for the Regulations 588

i Sovereignty over Land and Water 588

ii The Food Security Issue 592

C New Regulations on Foreign Acquisition of Land in Brazil and Argentina 593

1 Evolution of the Regulatory Framework for Foreign Acquisition

2 Argentina’s Law to Limit Foreign Acquisition of Land 600

a Structure and Character of the Law 600

b The Four-Stage Limitation on Foreign Ownership of Land 600

c Territorial Scope of Application 602

3 Possibilities for Investors to Circumvent the Limitations 611

a The Multiple Flaws of the Brazilian Regulation 611

i Corporate Structures Contemplated by the Current Regulatory Framework in Brazil 611

ii Examples of Circumventing Schemes in Brazil 612

b Possibilities to Circumvent the Law in Argentina 613

4 Likelihood of a New Law or Decree in Brazil 616Conclusion 617

PART FOUR—SPECIAL SECTION: WINNING MEMORIALS FROM THE 2013 FOREIGN DIRECT INVESTMENT

INTERNATIONAL MOOT COMPETITION (FDI MOOT)

18 Winning Claimant Memorial: National Law University, Delhi 621

19 Winning Respondent Memorial: University of Buenos Aires 655

in  association with the Columbia Center on Sustainable Investment It draws on the guidance of a distinguished Advisory Board, ongoing engagement by an Editorial Committee consisting of leading academics in the field of investment law and policy, and on skillful work by an Editorial Staff of students from Columbia Law School and McGill University Faculty of Law

The Investment Yearbook addresses legal and policy issues in the area of international

investment—from national, regional, and international perspectives The Editorial Committee invites for publication manuscripts that are of outstanding quality in terms of academic rigor, quality of the argument, originality, and contribution to the field of international investment law

and policy The Investment Yearbook will not consider a manuscript that has been published

pre-viously Every manuscript that is considered for publication will be assessed through an external double-blind peer-review process The style of the manuscripts should be in accordance with

the OSCOLA Guidelines, as adapted to the Yearbook (available from the Editorial Committee) The Editorial Committee welcomes the submission of manuscripts to the Investment

Yearbook Manuscripts should be electronically sent to the Columbia Center on Sustainable

Investment, the Editor, Prof Andrea Bjorklund, or any member of the Editorial Committee.Columbia Center on Sustainable Investment (CCSI): ccsi@law.columbia.edu

Andrea K. Bjorklund, Editor of the Investment Yearbook

andrea.bjorklund@mcgill.caEditorial Committee:

N Jansen Calamita: n.j.calamita@biicl.orgAbby Cohen Smutny: asmutny@whitecase.comLise Johnson: Ljj2107@columbia.edu

Peter Muchlinski: pm29@soas.ac.ukUcheora Onwuamaegbu: ucheoral@gmail.comFederico Ortino: federico.ortino@kcl.ac.ukLisa Sachs: lsachsl@law.columbia.edu

Alberto Alvarez-Jimenez is a Colombian and Canadian national who lives and works in

New Zealand He holds a Doctor of Laws degree from the University of Ottawa law faculty, and an LL.M. from McGill University Currently, he is a senior lecturer at the Faculty of Law

of  the University of Waikato and also an international consultant on international law Professor Alvarez-Jimenez’s research agenda concentrates on public international law, interna-tional trade law, and foreign investment law He has published more than 25 articles in promi-nent peer-reviewed journals in the United States, Germany, the United Kingdom, Canada, the Netherlands, and Switzerland In addition, he has presented papers at academic events in North America, Latin America, Europe, and Oceania His publications on international

investment law have appeared in a previous volume of this Yearbook, in the American Review

of International Arbitration, the Journal of World Investment and Trade, and the Journal of International Arbitration The chapter included in this volume is the second part of a project

dealing with the impact of the current economic crisis on international investment law The first, titled “The Great Recession and the New Frontiers of International Investment Law: the

Economics of Early Warning Models and the Law of Necessity,” was published in the Journal

of International Economic Law (Vol 17 No 3, 517–550) Professor Alvarez-Jimenez can be

reached at aalvarez@waikato.ac.nz

Dr.  Claudia Annacker is a partner based in the Paris office of Cleary Gottlieb Steen &

Hamilton  LLP Her practice focuses on international litigation and arbitration and public international law matters, including investor-state disputes, disputes involving international organizations, state succession issues, and state immunity, as well as disputes before the European Court of Human Rights Her current work includes representing the Hellenic Republic, the French Republic, the Arab Republic of Egypt, Russia, and DP World in invest-ment treaty arbitrations and the Republic of Iraq in an interstate arbitration against the Republic of Turkey Dr. Annacker is a visiting professor at the Paris West University Nanterre and an adjunct professor at the University of Vienna She is widely published on various aspects

of public international law and European law and has also served as an arbitrator in tional arbitrations

interna-Preeti Bhagnani (at the time of writing:  LL.M.  candidate, Columbia Law School) is an

Associate in the International Arbitration Group at White & Case LLP Ms Bhagnani has served as counsel to sovereign and corporate entities in international commercial arbitrations and international investment disputes She was formerly a Legal Counsel at Shell and a Senior Associate at Rajah & Tann LLP She holds an LL.B. from the London School of Economics and Political Science and an LL.M. from Columbia Law School where she was a Kent Scholar and recipient of the Edwin Parker Prize for International or Comparative Law She is admitted to the bar in Singapore and New York

Nicholas J. Birch is an Associate at the Law Offices of Stewart and Stewart in Washington,

D.C., and a J.D./M.B.A graduate from Georgetown University Mr Birch has practiced in trade remedies and international investment law and arbitration He has also been involved in research and writing on international investment, arbitration, and trade law and development, and has been featured in multiple books and articles

N Jansen Calamita, Juris Doctor summa cum laude (Boston); Bachelor of Civil Law (Oxford)

Mr Calamita is Senior Research Fellow and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law He concurrently holds the position of lecturer in the University of Birmingham Law School Mr Calamita has served in the Office of the Legal Adviser in the U.S Department of State and in the UNCITRAL Secretariat He con-tinues to counsel governments on matters relating to the law of foreign investment and inter-national dispute resolution His research is in general public international law and the international law of investment

Joanna Coyne is an associate in the International Dispute Resolution and Commercial

Litigation groups in the Washington D.C office of Crowell Moring LLP In her practice, Joanna represents clients in a wide-range of complex litigation and arbitration matters, with a special focus on international disputes Joanna has represented corporations and individuals in indus-tries, including mining, tourism, construction, healthcare, and education in disputes before U.S courts, administrative bodies, and international tribunals Joanna is also an active par-ticipant in the firm’s pro bono program and has focused on defending political asylum seekers, families in child custody disputes, and low-income tenants in eviction proceedings

Martin Delaroche is a Ph.D.  student in Public Policy, a Fulbright scholar, and a research

assistant at the School of Public and Environmental Affairs (SPEA), the Department of Political Science, and the Ostrom Workshop at Indiana University, Bloomington He is also a doctoral student in Geography at the Institut des Hautes Etudes de L’Amérique Latine (IHEAL)

of the University Paris 3 Sorbonne-Nouvelle, France His research focuses primarily on land property rights, large-scale land investments, and environmental degradation in Latin America He holds master degrees in International Economic Law (University of Paris 1 Panthéon-Sorbonne, in partnership with Columbia Law School and Sciences Po Paris) and in Applied Economics (University of Paris 1)

Kabir Duggal is a senior associate in the International Arbitration group of Baker and

McKenzie’s New York office His practice focuses on investor-state arbitration, commercial arbitration, and issues and disputes relating to public international law Mr Duggal is also a Lecturer-in-Law at the Columbia Law School, co-teaching “International Investment Arbitration.” He serves as the head of the advisory team on matters relating to procedure on

Investmentclaims.com (Oxford University Press) He also serves on ICSID Review’s Peer Review Board and is a Fellow at the Columbia Center on Sustainable Investment Mr Duggal

is a graduate of the University of Mumbai (University Medal), University of Oxford (DHL-Times

of India Scholar), and NYU School of Law (Hauser Global Scholar) He is admitted to practice law in India, England and Wales, and New York

Michael V.  Gestrin is currently a senior economist in the Investment Division of the

Organisation for Economic Co-operation and Development in Paris, France Previously he has held research and teaching positions at the University of Oxford, ESSEC Business School, the University of Toronto, and the United Nations Conference on Trade and Development (UNCTAD) Dr. Gestrin’s main areas of research include the impact of global value chains on the organization of multinational enterprises, the globalization of state-owned enterprises, and global trends in foreign direct investment He has a doctorate from the University of Oxford, where he examined the profitability of the international operations of multinational enterprises

Michael Jarvis, Senior Private Sector Development Specialist with the World Bank, specializes

in good governance, private sector roles in development, and multi-stakeholder approaches

Mr Jarvis leads programming on good governance of extractive industries, including a focus

on issues of contract disclosure Building on this work, he has overseen development of a new global initiative on open contracting to promote better outcomes from the estimated US$ 9.5 trillion in public-private contracts globally Mr Jarvis previously worked on industry codes of conduct and as a consultant on historical corporate responsibility issues Mr Jarvis has advanced degrees from the University of Cambridge and Johns Hopkins University He is a frequent author and blogger

Lise Johnson is the Investment Law and Policy Head at the Columbia Center on Sustainable

Investment (CCSI) Her work at CCSI centers on analyzing investment treaties, treaty-based investor-state arbitrations, and examining the implications those instruments and cases have for host countries’ domestic policies and sustainable development strategies In addition, she concentrates on key institutional and procedural aspects of the investment law framework, including efforts to increase transparency in and legitimacy of investor-state dispute settle-ment She has a B.A. from Yale University, J.D. from University of Arizona and LL.M. from Columbia Law School, and is admitted to the bar in California

Jürgen Kurtz is an Associate Professor and Director of Studies of the International Economic

Law Program at the University of Melbourne, Australia He researches and teaches in the ious strands of international economic law including the jurisprudence of the World Trade Organization and that of investor-state arbitral tribunals Mr Kurtz has advised the govern-ments of a number of OECD and developing countries and served as a consultant to leading regional and multilateral agencies involved in trade, investment, and development He cur-

var-rently serves on the editorial board of the Journal of World Investment and Trade.

Ian A. Laird is Co-Chair of the International Dispute Resolution Group in the Washington,

D.C., office of Crowell & Moring LLP Over the past 16 years, he has represented a range of clients in international arbitration proceedings involving disputes between corporations and foreign governments He is an adjunct professor at Columbia Law School and Georgetown University Law Center Mr Laird is the Co-Director of the International Investment Law

Center (International Law Institute), Co-editor of the series, Investment Treaty Arbitration,

and International Law (Juris Publishing – now in its eighth edition), and Editor-in-Chief of

InvestmentClaims.com (Oxford University Press)

Céline Lévesque is Full Professor and Dean of the Civil Law Section at the University of

Ottawa Her primary area of research is International Investment Law Dean Lévesque has written extensively on NAFTA Chapter  11 (Investment) and on the Canadian Foreign Promotion and Protection Agreement (FIPA) program In 2008–2009, she was a Scholar-in-Residence at the Trade Law Bureau of the Canadian Department of Foreign Affairs and International Trade In that capacity, she contributed to the defense of NAFTA Chapter 11 claims and to bilateral investment treaty negotiations Prior to joining the University, Dean Lévesque worked at the World Bank in Washington, D.C (1995–1998) She holds an LL.L (Ottawa), LL.B (Dalhousie), LL.M (College of Europe), and M.A (George Washington)

Maninder Malli is a Canadian lawyer with diverse experience in international investment,

corporate transactions, and development finance He currently manages global regulatory compliance for a multinational technology company Mr Malli previously held positions with the United Nations Department of Political Affairs in New York and the World Bank (Legal Vice Presidency) in Washington D.C., and practiced law with the Canadian firm Blake, Cassels

& Graydon Mr Malli holds a master’s degree in International Law from New York University,

a law degree from Queen’s University, and a bachelor’s degree from the University of British Columbia

Lindsey Marchessault is a Canadian lawyer and a consultant with the World Bank Governance

Global Practice Ms Marchessault has contributed to the launch of the Open Contracting Partnership and the development of the Open Contracting Global Principles and Data Standard In her work, she engages with governments and other stakeholders to develop and implement strategies for improved transparency and collaboration for better project outcomes Previously, Ms Marchessault worked at the International Centre for Settlement of Investment Disputes

Lars Markert is an associated partner in the international dispute resolution department of

Gleiss Lutz’s Stuttgart office He is admitted to the German and New York bars and frequently advises Western and Asian clients in international commercial and investor-state arbitrations under most of the major arbitration rules, spanning industries such as pharmaceutical, avia-tion, commercial, and energy He is on the Panel of Arbitrators of the Korean Commercial Arbitration Board (KCAB), on the Global Advisory Board for the ICDR Y&I, an academic adviser to the International Investment Law Centre Cologne (IILCC), and regularly teaches, speaks, and publishes on issues of international commercial and investment arbitration

Dr. Borzu Sabahi is an attorney in the International Arbitration group of Curtis, Mallet-

Prevost Colt & Mosle LLP He represents governments and state-owned entities in complex international arbitration matters He was recognized by the Who’s Who of International Commercial Arbitration Lawyers 2015 as a leading practitioner He is also an adjunct professor

at Georgetown and Columbia Law Schools, Co-Director of ILI International Investment Law Center, Editor of Oxford’s InvestmentClaims.com, and Co-Chair of Annual Juris Conference

in Washington, D.C His publications have been cited by arbitral tribunals and the U.S Supreme Court He is licensed to practice in New York and the District of Columbia

Lisa Sachs is the Director of the Columbia Center on Sustainable Investment Since joining

CCSI in 2008, she established and now oversees the three areas of focus for CCSI: investments

in extractive industries, investments in land and agriculture, and investment law and policy She specializes in extractive industries, foreign investment, corporate responsibility, and inte-grated economic development She received a B.A. in Economics from Harvard University, and earned her J.D. and an M.A. in International Affairs from Columbia University, where she was a James Kent Scholar and recipient of the Parker School Certificate in International and Comparative Law

Frédéric G Sourgens is an Associate Professor of Law at Washburn University School of Law

He publishes regularly on political risk, transnational commercial law, and the theory of

trans-national law His most recent book is A Nascent Common Law: The Process of Decisionmaking

in International Legal Disputes Between States and Foreign Investors (Brill | Nijhoff, 2015) Mr

Sourgens serves as Managing Editor for Oxford University Press’ “Investment Claims” reporter, as well as Co-editor of the series, Investment Treaty Arbitration and International Law (Juris Publishing – now in its eighth edition)

Catharine Titi is a postdoctoral research fellow at the University Panthéon-Assas Paris II

She holds a Ph.D. in Law from the University of Siegen, Germany, and has completed earlier studies in Greece, France, and the United Kingdom Ms Titi also holds a postgraduate quali-fication from the Courtauld Institute of Art, London, and has previously worked in manage-ment consulting for PwC, UK She has regularly taught international economic law and international investment law and has published in a variety of academic journals Her mono-

graph on The Right to Regulate in International Investment Law was published in 2014 by

Nomos and Hart Publishing

Dr. Valentina Vadi is Professor of International Economic Law at Lancaster University,

United Kingdom Dr. Vadi also lectured at Hasselt University (Belgium), the University of Rome III (Italy), the China EU School of Law (P.R China), and Maastricht University (The Netherlands) She has published more than 70 articles in various areas of public interna-

tional law in top journals, including the Vanderbilt Journal of Transnational Law, the

Stanford Journal of International Law, the Columbia Human Rights Review, the European Journal of International Law, the Journal of International Economic Law, and others She is

the Co-editor (with Hildegard Schneider) of Art, Cultural Heritage and the Market: Legal

and Ethical Issues (Springer: Heidelberg 2014), and (with Bruno De Witte) of Culture and International Economic Law (Routledge: 2015) Dr. Vadi is the author of Public Health in International Investment Law and Arbitration (Routledge, Abingdon 2012) and Cultural Heritage in International Investment law and Arbitration (Cambridge University

Press, 2014)

Louis T. Wells is the Herbert F. Johnson Professor of International Management, Emeritus, at

the Harvard Business School Professor Wells has published books or articles on joint tures, mining negotiations, foreign investment policy, investment promotion, and arbitration

ven-of disputes between foreign investors and host governments Prven-ofessor Wells has served as consultant to the governments of a large number of countries and as an expert in investor-state arbitrations He is a Fellow of the Academy for International Business and a member of the Council on Foreign Relations He received a B.S.  in Physics from Georgia Tech and an M.B.A. and a D.B.A. from Harvard University

Jason Yackee is an associate professor at the University of Wisconsin Law School Professor

Yackee’s research centers on international investment law and administrative law He teaches Contracts, International Arbitration, and International Business Transactions Professor Yackee graduated summa cum laude and Phi Beta Kappa from the University of Pittsburgh, earned an M.A. and Ph.D. in Political Science (International Relations) from the University of North Carolina at Chapel Hill, and earned a J.D., summa cum laude and Order of the Coif, from Duke University School of Law where he was an editor for the Duke Law Journal He has also studied French and European law at L’Université Panthéon-Assas (Paris-2) Professor Yackee has published articles in a variety of peer-reviewed social sci-ence journals, student-edited law reviews, and edited volumes, and he has served as Co-Chair of the American Society for International Law’s (ASIL) International Economic Law Interest Group

Jure Zrilič is a Ph.D Candidate in Law at the University of Cambridge, focusing on

interna-tional investment law In 2012 he worked as a White & Case Fellow at the School of Internainterna-tional Arbitration at Queen Mary, University of London, where he conducted research for the International Arbitration Survey and supervised LL.M.  students His practical experience includes working at a The Hague–based NGO in the justice sector, and completing a clerkship

at the High Court in Slovenia

Until recently, neither politicians nor the public in rich countries have shown much

inter-est in the controversy surrounding invinter-estor-state dispute settlement (ISDS) For good

reason, however, interest was picking up just as this Yearbook was being assembled.

At the outset, bilateral investment agreements (BITs) and investment provisions

in regional trade agreements (RTAs) were negotiated between rich countries and transition or developing countries, primarily because investors from the rich countries did not trust that the judicial systems of the latter would give them sufficient protection from adverse govern-ment action Domestic courts in poor countries were, in investors’ views, corrupt, subject to political influence, or simply not competent Treaties gave investors the right to bring claims against those governments in international arbitration Since awards from international tribu-nals were to be enforceable in a wide range of countries, the resulting regime should, accord-ing to proponents, provide investors with adequate protection and encourage investments

At the same time, some officials in rich countries were convinced that not only their tors but also their own governments would benefit from the regime With the new regime in place, they could deflect investors from demanding diplomatic support by sending them to the international system for redress Foreign offices would be free to follow broader foreign policy interests without having to worry about defending the private interests of their multinational firms.1

inves-While rich countries would have to agree to protect investors within their borders as well,

in order to obtain bilateral agreements, officials were confident that they themselves would not face claims under the new regime After all, they believed they already afforded the kind of protection for investors, domestic or foreign, that they were seeking elsewhere So, no reason for controversy at home

The rich countries pressed developing countries to sign BITs and investment provisions

in RTAs.2 Sometimes, poorer countries appear to have given little thought to the proposed

1 For evidence, see Noel Maurer, The Empire Trap: The Rise and Fall of U.S Intervention to Protect American Property Overseas, 1893–2013 (Princeton University Press 2013) 393–404.

2 Andrew T. Guzman, ‘Why LDCs sign treaties that hurt them: explaining the popularity of bilateral ment treaties,’ (1998) 38 Virginia Journal of International Law 639–688.

invest-treaties, signing in response to the need for a “photo opportunity” and “deliverables” when a dignitary visited from a rich country.3 Some of the early treaties were products of the foreign office, not ministries well informed about foreign investment issues Those countries that paid more attention to the treaties were told that providing international protection for investors would increase investment inflows; surrendering a little sovereignty would bring a big pay-off And, pressure was particularly convincing when it was pointed out that since their “neighbors” were signing treaties the country would be left out of the investment flows if they did not do the same Anyway, the line sometimes went, treaties would encourage poor countries to clean up their own legal systems so that they would not face claims in arbitration That would be good for both foreign and domestic investors.

The number of investment arbitration cases increased sharply from the mid-1990s Simultaneously, controversy about the system also grew But critics came largely from govern-ments of developing countries and from academics who were concerned about how the system was being administered or with its impact on development Criticisms covered treaty shop-ping, unexpected decisions based on vague language in the treaties, the lack of a mechanism for resolving conflicting decisions, realization that foreign investors had more rights than local investors, the extent that sovereign authority to regulate for health and environment and to manage the domestic economy had been undermined, and so on As some countries faced expensive arbitrations and unexpected awards, they began to question whether the alleged benefits were worth the costs Since empirical studies were not providing convincing evidence that the international investor protections had had a significant impact on the inflow of invest-ment, it was not at all clear that the promised benefits were even materializing

Eventually, concerns became serious enough that a few developing countries decided to withdraw from the system, wholly or in part, or to attempt to renegotiate the agreements that they had signed

Yet, ISDS still received little public attention in the rich countries A couple of times debate appeared on the horizon For example, Senator John Kerry, the 2004 U.S Democratic presi-dential candidate, once questioned the rights given to foreign investors in the United States to draw on external protection.4 With respect to NAFTA cases, The New York Times wrote: “The

trade agreements that set the rules [for investment disputes] should direct arbitration panels

to take a much broader view—to consider not just corporate interests but the needs of ments and their citizens.”5 Kerry’s brief focus on the issue appears to have been motivated by a potential claim by a Canadian investor generated in his home state of Massachusetts The case was settled, and the issue, which never really caught on, disappeared from politics and, mostly, from the press Even though, contrary to their expectations, the rich countries did eventually face a few claims, the United States never lost a case

govern-On the other side, there has been a dedicated “arbitration community,” mainly lawyers who serve as counsel to investors or governments, that defends the system and encourages its spread Some members of this community concede that a few marginal changes could be made

3 Lauge Poulsen, ‘Bounded rationality and the diffusion of modern investment treaties,’ (2014) 58 International Studies Quarterly.

4 ‘Kerry plan on trade irks firms,’ International Herald Tribune (20 July 2004) 17 See also Private Rights, Public Problems: A Guide to NAFTA’s Controversial Chapter on Investor Rights, International Institute for

Sustainable Development, 2001 Available at: http://www.iisd.org/pdf/trade_citizensguide.pdf (viewed 8/04);

and Adam Liptak, ‘NAFTA tribunals still U.S. worries,’ New York Times (18 April 2004) 19.

5 New York Times (27 September 2004) A30.

to improve the system,6 but overall many of them staunchly defend the system against its ics Debates over the fine points, however, have been very technical and thus limited largely to specialists They did not capture the attention of the public or politicians.

crit-Passivity turned to growing attention in the rich countries, especially in the European Union, with the proposed EU-Canada Comprehensive Economic and Trade Agreement (CETA) and EU-US Transatlantic Trade and Investment Partnership Agreement (TTIP), which would include investment provisions in agreements among rich countries Especially in Europe, NGOs have attacked them as posing threats to their own governments’ ability to regulate in

the public interest In October 2014 the Financial Times carried a full page article focused on

investment coverage in the proposed treaties It was titled “Toxic Talks,” with the ing: “Critics claim that international arbitration, once used to challenge injustice, has morphed into a weapon that multinationals wield to threaten governments and influence trade negotia-tions.”7 The same month The Economist carried two quite critical articles on ISDS, also address-

subhead-ing the proposed treaties.8 A few prominent cases against rich countries threatening domestic authority to regulate in the public interest added to the concern in Europe.9 Although the com-mitted “arbitration community” and the critics have sometimes shown an almost ideological commitment to their positions, it is certainly reasonable to ask why rich countries should sur-render sovereignty when investor protections really should not be needed between countries that offer reasonable justice systems.10 After all, ISDS was originally promoted to ensure that investors would receive protection in countries where justice systems were severely flawed.There are presumably reasons for the attempt to promote ISDS even in rich countries Some say initial European government support came from lobbying by the self-interested “arbitra-tion community.” Another explanation is that the United States insists on investment coverage

in agreements with other rich countries simply as precedent: If U.S. trade agreements exclude investment provisions when they are with rich countries, it will be harder to get poorer coun-tries, particularly China, to agree to them.11

Whatever the reasons for proposing investment protection in the CETA and TTIP, outright opposition has grown, especially in Europe.12 No longer were surrendering of sovereignty, reg-ulatory chill, and other issues the concern of only poorer countries In response to controversy, negotiators for the CETA and TTIP have made some efforts to modify proposed provisions so that they would address some concerns that were long irritants to developing countries.13

6 The ‘arbitration community,’ in other words, practitioners, is not unanimous A few practitioners are openly and severely critical of the system See, for example, George Kahale, III, ‘Is investor-state arbitration broken?’ (December 2012) 9 Transnational Dispute Management.

7 Shawn Donnan, ‘Toxic talks,’ Financial Times (U.S. edition, 7 October 2014) 9.

8 ‘A better way to arbitrate: protections for foreign investors are not the horror critics claim, but they could

be improved,’ The Economist (11 October 2014), and, in the same issue, ‘The arbitration game: governments are

souring on treaties to protect foreign investors,’ 78.

9 In particular, Sweden’s Vattenfall case insisting on compensation from Germany for its decision to close

nuclear power plants, and Philip Morris’s case against Australia on cigarette packaging Tellingly, little tion was paid to Philip Morris’s somewhat parallel case against Uruguay.

atten-10 One might question the legal systems of transition economies in the European Union, but that appears not

to be an issue specifically addressed.

11 According to Jeffrey Schoot, as reported in ‘The arbitration game,’ The Economist (11 October 2014) 78.

12 Shawn Donnan (n 7) points out that the European Commission received more than 150,000 submissions

on the possible inclusion of ISDS in the TTIP.

13 The negotiating mandate for the TTIP included instructions as ‘[the agreement] should be without dice to the right of the EU and the Member States to adopt and enforce, in accordance with their respective

preju-Whether modified investment provisions, or any investment provisions at all, will appear

in the final CETA and TTIP was not clear at the time this book was being assembled But it was clear that a number of the complaints that had had a limited audience in the past were now of interest to a much broader community Whatever the outcome, questions arise

If the CETA and TTIP do not include investment provisions will the United States’ fear be justified: that trade agreements without investment protection will set precedents that make it difficult to convince poorer countries to agree to them, or even encourage some to withdraw from existing agreements?14 Might the future even see ISDS commitments that are time-bound, where they no longer hold when a country has reached a certain level of development?

Also, if CETA and TTIP do include investment provisions, one can only speculate how the United States, for example, might react to the ISDS system when a foreign investor eventually wins a large claim against the United States from an international tribunal It would happen one day, likely because of an act of a state or local government Will the United States refuse to pay, seeing the decision as an intolerable challenge to its sovereignty? And, if it did, would that fatally undermine the regime? Or will the United States insist that the regime be modified in ways that dramatically change its nature?

Past Yearbooks have, of course, made major contributions to understanding some of the

issues surrounding ISDS This year’s volume adds to the discussion of the issues; and the authors have ever more data to draw on for exploring trends in the decisions made by tribu-nals, including a larger number of contradictory decisions The authors of chapters in this book

do not try to predict the future On the other hand, they do provide analyses of some of the issues that have not only troubled poor countries and academics in the past but which are of growing concern in the rich countries

Whatever turns out to be the future of ISDS, it is not likely to be simply a straightforward projection of the current system

Louis T. Wells*

competences, measures necessary to pursue legitimate public policy objectives such as social, tal, security, stability of the financial system, public health and safety in a non-discriminatory manner The Agreement should respect the policies of the EU and its Member States for the promotion and protection of cultural diversity’ and ‘Enforcement: the Agreement should aim to provide for an effective and state-of-the-art investor-to-state dispute settlement mechanism, providing for transparency, independence of arbitrators and predictability of the Agreement, including through the possibility of binding interpretation of the Agreement

environmen-by the Parties … Consideration should be given to the possibility of creating an appellate mechanism cable to investor-to-state dispute settlement under the Agreement …’

appli-Source:  Mandate for negotiating the TTIP, European Commission, ‘Directives for the Negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America,’ June 17, 2013, ST 11103/13 The directives are available at: http://trade.ec.europa.eu/doclib/press/ index.cfm?id=1162 (viewed 10 October 2014).

14 They would not be the first U.S. trade agreements not to include investment protections, however.

* Louis T.  Wells is the Herbert F.  Johnson Professor of International Management, Emeritus, Harvard Business School.

We are delighted to announce an agreement with the British Institute for International

and Comparative Law (BIICL) to publish papers produced by participants in BIICL’s biannual Investment Treaty Fora The Investment Treaty Forum brings together experts in international investment law to engage in high-level debate about salient

topics in investment law Part Two of the Yearbook includes those contributions.

The chapters in this year’s edition illustrate the breadth of investment law and policy as it becomes the focus of more scholarly attention than ever before The contributions this year cover such disparate issues as governmental policies toward large-scale foreign investment in land and open contracting, the intersection between decisions of the International Court of Justice and those of ICSID tribunals, and the link between investment promotion agencies and bilateral investment treaties Yet one can distill certain themes

First, questions related to the fragmentation of international law and whether and how norm migration should occur from one international law regime to another abound These issues include concerns about the use by investment tribunals of the proportionality principle developed largely by the European Court of Human Rights, and also extend to the appropriate use by investment tribunals of countermeasures and other circumstances precluding wrong-fulness found in the ILC’s state responsibility chapters

Second, investment policy questions loom large Sometimes it has seemed that discussions about arbitration and dispute settlement dwarf those about investment policy itself How gov-ernments market themselves in their attempts to attract foreign investment, what approaches they take when deciding questions about the exploitation of valuable natural resources, and the like deserve attention whether or not they ever become the topic of an investment treaty case.Third, the tensions between state sovereignty and the constraints imposed upon that sov-ereignty by investment agreements continue Those constraints themselves of course stem from exercises in sovereignty, but the resulting tensions bedevil investment law in multiple ways How much can or should states influence the interpretation of investment treaties when they are possible defendants under those agreements? When countermeasures lawfully imple-mented against a state harm that state’s investors is the state exculpated? What effect, if any, does a global financial crisis have on these questions? These are not new questions, but satisfac-tory and broadly accepted answers remain elusive

The year-in-review portion of the Yearbook again offers high-quality, insightful surveys

of trends in international investment, in the negotiation and drafting of international ment, and in the jurisprudence of investment tribunals

invest-In this edition of the Yearbook we welcome Michael Gestrin, of the Organisation for

Economic Co-operation and Development, who analyzed trends in international investment Among his findings are the continued weakness in international investment flows since the

2008 financial crisis The weakness is more pronounced in developed than in developing tries China has risen as both a source and recipient of FDI, though he cautions that this trend could slow or even reverse itself in the not-too-distant future Governments have been increas-ingly important international investors, with state-owned enterprises accounting for 10% of global international merger and acquisition activity in 2012, and partially state-owned enter-prises accounting for a much higher percentage still

coun-Lise Johnson and Lisa Sachs continue their tradition of providing a first-rate sis of trends in the at least 30 new investment treaties negotiated or signed in 2013 Certain countries—Canada, Columbia, Iceland, and Switzerland—were particularly active Negotiations continued on much-studied “mega” agreements, including the Trans-Atlantic Trade and Investment Agreement, the Trans-Pacific Partnership, and the Regional Comprehensive Economic Partnership among the ASEAN membership states and other Pacific Rim countries South Africa terminated several of its BITs, and Indonesia announced its intention of doing the same The chapter focuses particularly on “protection-light” inter-national investment agreements, which sometimes complement more traditional investment treaties and sometimes are signed in lieu of them; Canada’s recent and active treaty practice

analy-in Africa; and the advances analy-in transparency made withanaly-in the United Nations Commission on International Trade Law

Ian Laird, Borzu Sabahi, Frédéric Sourgens, Nicholas Birch, and Kabir Duggal continue

their service to Yearbook readers and to the international investment community generally by

providing a comprehensive review of the major developments in decisions relating to tion, including those relating to the definition of investment, mass claims, and the expansion

jurisdic-of tribunal authority by means jurisdic-of MFN clauses; in decisions relating to the merits, including analysis of the particular application of the most common basis of liability—the fair and equi-table treatment standard in four of the six merits decisions of the year; in decisions relating to compensation, including the question of awarding non-pecuniary remedies and compensation standards for lawful as opposed to unlawful expropriation; and in decisions relating to the most significant procedural issues addressed throughout 2013, including questions related the burden of proof, challenges to arbitrations, the granting of provisional measures, questions relating to third-party funding and the appropriate treatment of it, and the perennial question

of the precedential value of arbitral awards

Two of the BIICL papers address the topic of proportionality Jansen Calamita focuses

on the principle of proportionality in examining its potential to act as a unifying guiding framework for the application and interpretation of investment treaties He addresses thresh-old concerns about the legitimacy of introducing without state consent a concept that is not a general principle of law or customary norm, and then addresses whether proportionality can really be used to develop coherent treaty interpretations in the absence of fundamental agree-ment on questions regarding the relative strength of the rights and interests to be balanced in the analysis He also considers the potential inutility of proportionality as a mode of analysis without agreement on the standard of review employed by tribunals in their application of a proportionality standard