The Final Chapter in the Chevron-Equador Litigation?
Have you heard of the Chevron-Ecuador litigation? It's a decades-long saga about pollution in Ecuador's Amazon rainforest. This video dives into the final chapter of this epic legal battle, revealing who finally prevailed.
Aligning Legal Responsibility with Wrongfulness in the Testing for Causation and Calculation of Compensation in Investment-Treaty Disputes
Here is a puzzle: arbitral tribunals insist that states have regulatory space under the rule on fair and equitable treatment, yet, when they test for causation and calculate compensation, they forget about this. They test whether the state’s conduct was causal, not whether the unfair and inequitable aspect of the state’s conduct was causal. If there is causality, they award compensation that covers all of the investor’s losses, as opposed to limiting compensation to the losses caused by the unfair and inequitable aspect of the state’s conduct. In this video, I put forward a theory on how to solve this puzzle.
The Battle Over the Enforcement of Intra-European Union Investment-Treaty Arbitral Awards
Seventeen-minute video analysing decisions from an English court and a Luxembourgish court on the enforcement of ICSID arbitral awards from intra-European Union investment-treaty arbitrations.
A Strategy for Defeating Objections to Jurisdiction Based on Investment-Establishment Illegality
You are the legal counsel for the investor an investment-treaty arbitration. The investor looks like it has a good claim. It also looks like the arbitral tribunal has jurisdiction to hear this claim, but your opposition surprises you: the investor has participated in corruption in the process of making its investment. The evidence is overwhelming. The case looks lost. Is there anything that you can do?
In this video, I introduce a new strategy for defeating such jurisdictional objections, specifically using the doctrine of duress.
The Zombification of the Energy Charter Treaty: A European Own Goal?
Over the past few months, a great drama has been played out in respect of the Energy Charter Treaty. After the long process of the modernisation of this treaty was brought to an end with the conclusion of a final draft in June 2022, various European states signalled their intention to withdraw: first Poland, then the Netherlands, Spain, France, and Germany. Now the European Union, Slovenia, and Austria are now mulling the possibility of withdrawing.
Despite the conclusion of the modernisation process, why are these states withdrawing? Put simply, they do not believe that the Energy Charter Treaty is compatible with the implementation of the policies that we will be needed to achieve the energy transition. Interestingly, however, withdrawing from the Energy Charter Treaty does not mean that the treaty no longer binds a withdrawing state. Rather, its provisions can still continue to apply to it. What this means is that by withdrawing from the treaty, contracting states are effectively trying to kill the Energy Charter Treaty, but even after this ‘death’, the Energy Charter Treaty continues to survive, hence ’the Zombification of the Energy Charter Treaty’.
In this video, I investigate whether, in its ‘zombified state’, the Energy Charter Treaty still inhibits the energy transition, with particular reference to how things would have been if the withdrawing states had signed the modernised Energy Charter Treaty.
An Introduction to ‘The Rise of Domestic Courts in International Investment Law’
In this video, I introduce a new research project that I am coordinating with Prof. Chester Brown (University of Sydney) and Stephan Schill (University of Amsterdam), ‘The Rise of Domestic Courts in International Investment Law’. After detailing the background behind this research project, I introduce the main research question, which is: on account of the increasing involvement of domestic courts in investment-treaty disputes, how are they changing international investment law?
The Protection-Status of Fossil Fuel–Based Investments under International Law
In late June 2022, important news broke on the international legal regime applicable to states’ treatment of energy-focussed investments: the contracting states to the Energy Charter Treaty had reached an in-principle agreement to amend it. In diplomatic speak, this amendment sought to ‘modernise’ the Energy Charter Treaty, particularly in light of the challenge posed by climate change.
One of the pivotal changes in this new modernised Energy Charter Treaty is the change to the definition of ‘investment’. The importance of this definition cannot be overstated. It defines exactly what investments receive protection-status under the Energy Charter Treaty. Accordingly, if fossil fuel–based investments are excluded from its scope, it means that they do not have protection-status under the Energy Charter Treaty, with the result that investors with such investments cannot sue states under this treaty.
The European Union pushed for such an exclusion, but there was pushback from other contracting states. What emerged was a kind of compromise: states could opt out of protection for fossil fuel–based investments. Does this political solution stand up legally, however? This video investigates this question. It identifies a number of issues that the drafters will have to address as they go about drafting up this compromise.
In this video, I offer my preliminary thoughts on this question.
A Doctrine of Precedent for ISDS 2.0?
The reform process for ISDS at UNCITRAL is reaching its climax. Within the next few years, a treaty for ISDS 2.0 should emerge from this process.
It is expected that one feature of ISDS 2.0 will be an appellate mechanism. It would hopefully address one of the main issues that has plagued ISDS 1.0, specifically the disunity of adjudicator-made jurisprudence in international investment law. Given this role for the appellate mechanism, a question that has frequently arisen during the negotiations at UNCITRAL has been: should a doctrine of precedent be adopted into ISDS 2.0?
In this video, I offer my preliminary thoughts on this question.
The Adventures of the Antin v Spain Arbitral Award: Chapter 3?
In this video, I recount the adventures of the Antin v Spain arbitral award. And ‘adventures’ is the right word. While most arbitral awards are performed after their issuance, the arbitral award from Antin v Spain has been on a roller-coaster ride.
The first section of that ride was the jurisprudence of the European Court of Justice that culminated in the decision of Moldova v Komstroy. In that case, the European Court of Justice effectively ruled that the investment-treaty arbitration that was Antin v Spain was illegal under European law. Enforcement of the arbitral award in the European Union is now impossible. Where could the arbitral award be enforced?
One potential jurisdiction was Australia. And, indeed, Australian courts have enforced the arbitral award. But that action has provoked a response from the European Commission, which is now investigating whether payments to Antin under the Australian judgment would constitute (unlawful) European state aid.
In a world where the European Commission does order Spain to retake the amount that it pays to Antin pursuant to the Australian judgment, does that amount to a good faith breach by Spain of the ICSID Convention? This is the question of the third chapter of this story and it is one that this presentation casts a light on.
The Djoković Australia Saga - Legal Issues Behind the Drama
It has been the news story of the year so far: the Djoković-Australia saga.
There are many fascinating elements to this saga, from the vaccination issue to the sporting story, specifically whether Djoković could win his 21st grand slam at the Australian Open. But this saga was fundamentally a legal story.
In this video, I give a comprehensive account of the legal story. I focus specifically on the difficult legal issues that the Djoković-Australia saga raised. After looking through the various legal proceedings, a provocative question is considered at the end:
What does this saga show about the health of the rule of law in Australia?
The Legality Requirement in Legitimate Expectations in Int'l Investment Law
No other legal concept in international investment law provokes controversy like legitimate expectations. When arbitral tribunals have to apply it, they have to engage in a delicate balancing act. On the one side, there is investors’ interest in a stable regulatory regime for their investment activities, while, on the other side, there is states’ interest in changing that regime to better fit to the changing circumstances in the society over which they govern. Because balancing these interests is such a difficult task, any new jurisprudence on legitimate expectations is always significant. This video reports on such new jurisprudence: the legality requirement in legitimate expectations in International investment law.
In this video, I describe this new jurisprudence, doctrinally critiques it, and proposes alternative jurisprudence to take its place.
Investment-Treaty Arbitration after Achmea
In March 2018, the European Court of Justice handed down its decision in Slovakia v Achmea. This decision let off a Krakatoa-like eruption in the world of international investment law. Effectively, the European Court of Justice sought to interdict investment-treaty arbitrations between European investors and EU Member States, noting that these disputes make up a large portion of all investment-treaty arbitrations. As the dust has now settled after the initial blast, it is time to take stock and ask: what impact has the Achmea Decision actually had?
In this video, I give an overview of the legal issues that arose in international investment law post-Achmea and examines the responses to those issues.
European Union - China Comprehensive Agreement on Investment
In December 2020, China and the European Union concluded the long-awaited China-EU Investment Agreement, officially known as EU-China Comprehensive Agreement on Investment. Its significance cannot be overstated – it will provide the legal framework for European investment into China and Chinese investment into Europe.
In this video, I give an overview of the contents of the treaty and identifies its positive and negative aspects.
The Quiet Rise of the Investment Court System
As part of its broader push to ‘Unionise’ international investment law, the European Union has proposed the Investment Court System (from which the Multilateral Investment Court derives) to replace traditional investor-state arbitration (ISDS).
In this presentation, I give an overview of the two distinctive features of the Investment Court System relative to traditional investor-state arbitration, namely the random appointment of arbitrators from a pool of state-chosen potential arbitrators and the appellate tier. These overviews highlight the legal problems that the introduction of these two innovations could give rise to.
To conclude, some comments are offered on the future challenges that the European Union has to overcome in making the Investment Court System a reality.
Interview on Euronews about China-EU Investment Agreement
In this video, I am interviewed on Euronews about the EU-China Comprehensive Agreement on Investment.
The Covid-19 Pandemic and Investment-Treaty Arbitration
When governments began implementing tough Covid-related measures and the business world started hurting, law firms were quick to remind investors that they have possibilities to complain about these measures under investment treaties. Civil society groups saw the threat of a flood of investment-treaty claims. An offensive was started in the media to bring attention to this apparent problem. Further, a draft treaty was produced that would operate to stop the flood – 'Agreement for the coordinated suspension of investor-state dispute settlement with respect to COVID-19 related measures and disputes’.
In this video, I analyse some of the legal technicalities of this proposed treaty. Three issues are in focus:
Can investors’ access to arbitration be suspended without their consent?
If a state exercised its discretion and elected to suspend investors’ access to arbitration, would that suspension affect jurisdiction, admissibility, or merits?
Is this proposed treaty necessary considering the defences that are available to states to defend themselves against Covid-related claims?
Legitimate Expectations in International Investment Law – The Place of
Investor Due Diligence
Legitimate expectations is the most controversial concept in the substantive law of international investment law. For many, it’s an unruly horse that investors ride to (undeserved) compensation. Working from this foundation, a doctrinal innovation has been developed to tame it: the idea that the investor cannot have legitimate expectations of certain performance by the state if it foresees that the state will probably not so perform.
In this video, I argue that this idea is doctrinally incorrect. But this doesn’t mean that the investor’s lack of due diligence is irrelevant to the state’s international responsibility. It is rather relevant via another concept, contributory fault. In the conclusion, I show how it assumes this relevance.
The Status of Non-Citizen Indigenous Australians under the Australian Citizen
Can Indigenous Australians, who were not Australian citizens, be considered ‘aliens’ under the Australian Constitution?
In a 4 – 3 decision, the High Court of Australia decided that they could not.
In this video, I review the reasoning of the majority judges and the minority judges.
Curing the Phobia of Judicial Expropriation
The bad news: there is a phobia among arbitral tribunals for investor-state arbitrations – the ‘phobia of judicial expropriation’. Now, to the good news: there is a cure for this phobia. That cure involves a two-step treatment regime. The first step is dropping the requirement that any taking of an investment by a domestic court must also involve some kind of serious procedural illegality before it can be labelled expropriatory. The second step is fully appreciating the role of causation in making any determination of judicial expropriation. This video explains those steps. The payoff is the realisation that the only thing we have to fear about judicial expropriation is the fear of it.
For a blog article on the same topic, see: http://opiniojuris.org/2020/05/20/the-only-thing-we-have-to-fear-about-judicial-expropriation-is-the-fear-of-it/
Energy Charter Treaty – Clean Energy Debate: Appreciating the Legal Complexities
Should the Energy Charter Treaty (‘ECT’) be modernised or terminated?
As the contracting parties head into another round of negotiations for the modernisation process, numerous calls have been made in the media for termination. A key premise in the argument leading to that conclusion posits that the ECT will obstruct this energy transition. The reason for this obstruction is that as contracting parties implement the policies needed for the energy transition, they will have to pay out compensation under the ECT to investors in carbon-energy production.
In this video, I critically examine the idea that contracting parties will necessarily accrue legal responsibility under the ECT for transiting to clean-energy economies.
The Modernisation of the Energy Charter Treaty
No other investment treaty compares to the Energy Charter Treaty (the ‘ECT’). It has 53 contracting parties, more than any other investment treaty. Further, it has given rise to more than 130 investor-state arbitrations, again, more than any other investment treaty. Accordingly, when the contracting parties announced in the Bucharest Declaration that the ECT had to be modernised in light of new realities, it was a significant moment in the history of international investment law. This presentation examines this modernisation process, specifically focusing on the legal questions that will come up in this process.