Introduction; 1. The legal landscape; 2. The four models; 3. Jurisdiction Ratione Personae: the foreign investor; 4. Mass proceedings and settlement agreements; 5. Jurisdiction Ratione Materiae: the substantive rights; 6. Enforcement; Conclusion; Annex I: the model texts; Index.
This volume shows how investment arbitration may be reformed to achieve both increased investment flows and improved access to justice.
Jose Daniel Amado is a founding partner of the firm Miranda and Amado in Lima, Perú. He earned his law degree at the Catholic University of Perú and holds an LL.M. from Harvard Law School. Professor Amado is a past scholar-in-residence at Wilmer Cutler Pickering Hale and Dorr LLP and a past visiting fellow of the Lauterpacht Centre for International Law and the Centre of Latin American Studies, University of Cambridge. Jackson Shaw Kern has acted as counsel across Africa, Asia, Europe and the Americas, where he represents sovereign States, State entities, and State enterprises as well as private interests. He is a past visiting fellow of the Lauterpacht Centre for International Law, Cambridge, and frequent guest lecturer at institutions including the Peking University School of Transnational Law. He is a member of the Bars of New York, Washington, DC, and Montana, and is of counsel to the Addis Law Group LLP. Martin Doe Rodriguez is Senior Legal Counsel of the International Bureau of the Permanent Court of Arbitration (PCA) at The Hague, where he assists arbitral tribunals constituted under the auspices of the PCA to resolve investment treaty disputes, contract claims involving State entities and international organisations, and inter-State disputes arising under various international conventions and treaties. In addition, he advises and assists the PCA Secretary-General in regard to the roles given to the PCA under the UNCITRAL Arbitration Rules, and is also regularly called upon to assist in the diplomatic work of the PCA with its Member States and other intergovernmental organisations.
'This is a highly thoughtful and timely book, whose innovative
proposals deserve careful study. Faced with the litany of criticism
investor-State arbitration has recently been exposed to, it seeks
to reform rather than surrender by setting out ways to rebalance
what many perceive as a structural bias in favor of investors. The
authors address the interests of a diversified group of
stakeholders and suggest the inclusion of access to effective
recourse for host States and their nationals in international
investment treaties. With innovative proposals like these,
including model texts, winter may not be coming in investor-State
arbitration quite yet. A commendable work.' Gary Born,
Partner, Chair of the International Arbitration Practice Group,
Wilmer Cutler Pickering Hale and Dorr LLP
'A blind spot, as well as a source of growing criticism of
international investment law, is that it lacks binding investor
obligations and that investment arbitration as currently configured
does not allow host states to bring claims against investors. The
authors of this book have taken a hard look at the options, and
provide an admirable and practical toolbox to address this blind
spot. It will become the essential point of reference.' Michael
Waibel, Fellow, Jesus College, Cambridge, Deputy Director,
Lauterpacht Centre for International Law
With its very structured approach to relevant aspects of investment
arbitration, driven by a clear demand to go 'back to the roots',
this book is a thought-provoking, useful and practical guide to
today's investment arbitration practice. Together with the model
texts it offers, this all-comprehensive book will prove to be an
equally useful tool for counsel, arbitrators and negotiators
alike.' Gabrielle Nater-Bass, Partner, Homburger AG, President of
the Arbitration Court of the Swiss Chambers' Arbitration
Institution
'In this book, the authors put forth a resounding functionalist
challenge to the dominant theory of locus standi in investor-state
arbitration by not only skillfully demonstrating the artificiality
of the barriers imposed by decades of jurisprudence but also by
proposing a cogent analytical framework for the leveling of the
playing field. Their synthesis of the existing status quo
brilliantly demonstrates the self-inflected crisis of confidence
and shows how the equalization of access to justice could remedy
the realities and perceptions of injustice in this field. This
profound legal academic work is also a remarkably provocative
policy and practice advisory.' Won Kidane, Seattle University
School of Law, Principal, Addis Law Group LLP
'A disruptive and forceful analysis of the status quo of the rules
of international investment arbitration. This book articulates an
innovative questioning of the one-way-street system which virtually
precludes access for both States and many non-State actors alike.
Furthermore, it documents and denounces its inherent lack of
balance and persuasively advocates the participation of more
stakeholders. Reform at the investment-treaty level should
definitely follow.' Roberto Dañino, Former Prime Minister of the
Republic of Peru, Former Senior Vice President and General Counsel
of The World Bank Group, Former Secretary-General of the
International Centre for Settlement of Investment Disputes
'This book will get attention. It will surprise those who think
investor-State arbitration claims were never meant to be - and
should not be - available to host States and their nationals.
Amado, Kern and Doe Rodriguez challenge the assumption that it is
always the investor who needs a leg-up to seek justice from a
State, however disparate their status and power. The models the
authors so deftly explore and graphically illustrate lead to
fascinating permutations of possible Davids and Goliaths.' Lucy
Reed, Director, Centre for International Law and Professor,
National University of Singapore
'In recent years, a storm of popular discontent with the
one-sidedness of international investment protection by arbitration
as it stands today has shaken the legal landscape. The system is
widely seen as a one-way street, favoring access to justice for
foreign investors, while subjecting attempts at equivalent recourse
available to host states as well as affected individuals and
populations to severe limitations. Reactions to this perceived
imbalance range from unilateral termination of existing treaties to
initiatives for a fundamental restructuring of the present
investment arbitration regime. The danger of an overkill is
lurking. That is precisely why I emphatically welcome this new
book: it sets out a variety of ways by which interests of
stakeholders other than investors can be admitted into the present
system without denaturating or even destroying it. The volume is an
eminently constructive and thought-provoking contribution to the
debate on 'business and human rights', written by three authors
thoroughly on top of their subject; it deserves the attention of
all experts in international investment law and policy.' Bruno
Simma, Judge, Iran-United States Claims Tribunal and International
Court of Justice (2003–12), University of Michigan
'At a time of criticism and backlash, this volume appears as a very
useful tool set for reconsidering and reforming a good part of the
international system of investment arbitration. Its highly
stimulating contribution is to get back to the essence of
arbitration which is the mutuality of access by allowing for the
adjudication of claims submitted by the host State and its
nationals. Animated by a spirit of imagination, creativity and
initiative, this book, including its model texts, provides with new
perspectives which might prove to be of decisive help for a
readjustment of the settlement of disputes mechanisms between
States and foreign investors.' Pierre-Marie Dupuy, Graduate
Institute of International and Development Studies, Geneva
'Two pervasive criticisms plaguing investor-state arbitration are
its existing locus standi requirement and lack of transparency. The
authors have addressed this backlash by providing both a sound
theoretical basis for investment stakeholders to access investment
arbitration and lay a claim against investors, and practical
proposals to achieve this. The proposals in this work warrant
proper consideration by stakeholders, counsel, arbitrators, and
negotiators of investment initiatives.' Tan Sri Dato' Cecil
Abraham, Senior Partner, Cecil Abraham and Partners, Kuala
Lumpur
'This valuable book addresses a disequilibrium at the heart of
investor-State arbitration: the privileged position of the
investor. How can those adversely affected by an investor's
conduct-the Host State or nationals of the Host State-seek redress
in an investor-State arbitration? How might the investor be
required to pay the full economic costs of a failed investment? How
might the Home State of the investor be liable for the failure of
an investment? This is an original and incredibly timely book,
given the current legitimacy crisis in investor-State arbitration,
and the need to ensure the equal participation of all stakeholders
in the resolution of investment disputes.' Bernardo M. Cremades
Sanz-Pastor, Partner, B. Cremades y Asociados
'The research and reflection that the authors have devoted to this
work is prodigious, but therein does not lie its significant merit.
(At best, the benefit of most long hours spent in libraries does
not, alas, go beyond the satisfaction of a single person.) It is
rather the ambitiousness and originality of their project. They
contemplate nothing less than the ways and means of transforming
the resolution of disputes involving foreign investment from (A)
what they perceive, in its current binary shape, as limited (at the
international level) to the establishment of arbitral fora designed
to hear claims by individual aggrieved investors against individual
host states to (B) a very big tent in which everyone claiming to be
concerned by the conditions and effects of foreign investment may
have standing to pursue rights or establish obligations. That this
exploration gives rise to likely potential controversies with
respect to both policy and practicality is an understatement, but
that is as it should be. Think of the 29th of May 1913, when half
the audience angrily stomped out of the Théâtre des Champs-Élysées.
They didn't like Stravinsky's Sacre du printemps …' Jan Paulsson,
Partner, Three Crowns LLP
'Unlike most other books in this area which either teach black
letter international arbitration or seek to describe or criticize
the system as it is, this book seeks to be much bolder: to redefine
the status quo. It raises a number of timely, pertinent, and
applicable questions not simply in relation to the mutuality of
access to international dispute resolution fora but also broader
questions pertaining to international investment and sustainable
development. It suggests a host of potential mechanisms applicable
within the existing legal framework and provides models texts
within which to address and ultimately achieve mutuality of access
for host States. These model texts, and the work of these
distinguished Authors, will no doubt facilitate the opening of a
dialogue to explore and address not only whether such changes
should be implemented, but also how to achieve such an aim for the
benefit of all. And for that, both States and investors will
ultimately be thankful.' Baiju Vasani,
'The book comes, in a timely manner, to assist stakeholders in the
ISDS [Investor-State Dispute Settlement] system, in finding the
proper solution to the current imbalance of the system, and, in
particular, to the absence of a reciprocal mechanism in addressing
issues of investment law. The authors put together a practical
toolkit, easy to use and readily available, balancing the interests
of investors, host and home states, as well as - and probably more
importantly - of nationals of host states affected by the breach of
investors' obligations.' Crina Baltag, Journal of International
Arbitration
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