Investor-state dispute settlement

from Wikipedia, the free encyclopedia

The designated by the English term investor-state dispute settlement ( ISDS ; German investor-state dispute settlement ) is an instrument of international law. ISDS allows a foreign investor to initiate a dispute settlement procedure against a state in which he has invested if he sees his rights guaranteed under international public law violated. Usually these are arbitration proceedings , which is why the term “ investment arbitration ” is often used. The prerequisite for ISDS is that the host state has given its consent. Many bilateral investment protection agreements provide for ISDS, as well as NAFTA , the Energy Charter Treaty and the current drafts of TTIP , CETA and TPP . The European Court of Justice fundamentally questions the compatibility of arbitration clauses in investment protection agreements with EU law.

purpose

There are various ways of asserting claims by foreign investors against a host country. This includes the domestic legal process in the host state, the courts of third states or the home state of the investor or diplomatic protection rights . Often none of these paths are satisfactory for the company: the courts in the host state, which are bound by local laws, may not offer effective legal protection, the courts of other states often do not have international jurisdiction . In addition, lawsuits often fail due to the host states' immunity to sovereign measures. The exercise of diplomatic property rights is tied to high requirements that investors are often unable to meet.

Direct access to investment arbitration courts is therefore the most important and effective way of enforcing investment disputes today. ISDS is seen in particular as a measure to encourage foreign direct investment. However, it is controversial whether the instrument fulfills this purpose.

development

history

Early bilateral investment protection agreements only contained arbitration clauses for disputes between the contracting states. The first agreement that also allowed investors to arbitrate was signed in 1968 between Indonesia and the Netherlands . The 1969 agreement between Chad and Italy contained the first clause with which the participating states gave their unreserved consent to the resolution of disputes with investors in arbitration.

Very few investment arbitration proceedings were known until the late 1980s. Since the 1990s, the number of investment disputes has risen sharply, according to figures from the United Nations Conference on Trade and Development (UNCTAD). In addition to the known cases, there is also an unknown number of unreported cases, since, depending on the legal basis for the procedure, there may be no disclosure requirement.

UNCTAD counted a total of 274 completed investment arbitration proceedings by 2013, of which 31% were decided in favor of the plaintiff investor and 43% in favor of the defendant state. The parties agreed in the remaining 26% of the proceedings. 85% of all known lawsuits were brought by investors from developed countries (53% from the EU, 22% from the USA); around three quarters of the lawsuits were directed against developing and emerging countries.

Critical interpretation

According to Mattias Kumm , investment arbitration tribunals arose in post-colonialist relationships between industrialized and target countries among developing countries and at a time when developing countries were the scene of Cold War conflicts .

Kumm sees one reason for the introduction of ISDS in the parallel interest between the investors in the industrialized countries and the elites in the developing countries in the import of capital. The World Bank and the International Monetary Fund have put pressure on developing countries to be attractive for investments from industrialized countries. Even if the elites of the target states had no interest in the development of their states, they were interested in generating state income in the form of taxes and license payments in order to enrich themselves or to be able to buy support in their own country.

For Kumm, investment protection clauses between industrialized countries can be explained from the post-colonial setting of the original relations with developing countries. The colonial power is no longer a state here, but rather the interests of capital that oppose the states.

Institutional support

The most important institution providing the infrastructure and rules for investment  arbitration is the World Bank Group's International Center for Settlement of Investment Disputes (ICSID) in Washington. Other relevant arbitration institutions for investment disputes are the International Chamber of Commerce (ICC) , the Stockholm Chamber of Commerce (SCC) , the London Court of International Arbitration (LCIA) and the Permanent Court of Arbitration . Investment arbitration proceedings without institutional support often follow the UNCITRAL arbitration rules.

criticism

Restriction of national sovereignty

Critics see national sovereignty threatened by investment arbitration proceedings, since foreign investors are given the opportunity to exert influence on the legislation and administrative practice of a country by threatening to claim damages. The politicians could for fear of claims for damages before international arbitration courts because of z. B. Avoid the passing of actually politically wanted laws for lost profits. One speaks of a “deterrent to democracies” (“ chilling effect ” or “regulatory chill”), although the terms are not clearly defined. For example, some observers see the threat of investment arbitration proceedings against states that want to tighten their tobacco regulation as an attempt to prevent democratically wanted legislation.

On the contrary, the decisions of investment arbitration tribunals generally leave ample scope for appropriate and non-discriminatory legislation and regulation. In addition, states have voluntarily submitted to investment arbitration, their sovereignty is not affected. The fact that promises made restrict future room for maneuver is an essential characteristic of constitutional states.

Unclear criteria for infringement

It is also criticized that the definitions of investor rights in investment protection agreements are too fuzzy and thus allow inconsistent or arbitrary decisions by the arbitral tribunals.

"Treaty Shopping"

Many investment protection treaties use a broad definition of the nationality of protected investors. By establishing a subsidiary in one of the contracting states, this enables companies to assert claims from an investment protection agreement, even though the company actually comes from another country with no or a less favorable agreement with the host country. A simple letterbox company may be sufficient for this.

Treaty shopping can also enable investors to assert investment protection claims against their own country of origin. For example, Philip Morris sued the country Australia for damages because of laws introduced there for the protection of nonsmokers via a subsidiary based in Hong Kong, which had only acquired shares in the Australian branch of Philip Morris ten months after the announcement of the nonsmoker protection laws. The tobacco producer was able to invoke the bilateral investment protection agreement between Australia and Hong Kong. In December 2015, the arbitral tribunal ruled against Philip Morris for considering the use of the Hong Kong agreement as an abuse of law.

Discrimination against nationals

The granting of further legal recourse only to foreign investors is seen as unequal treatment to the detriment of domestic residents, who may not have comparable action against their governments for their investments in a changing legal situation.

Lack of transparency

Investment arbitration tribunals sometimes work largely behind closed doors. While confidentiality is of great importance in arbitration proceedings between private individuals, it raises concerns when states are involved, as public interests are always affected in investor-state proceedings. Proponents point out, however, that investment arbitration proceedings are in many cases more transparent than proceedings before state courts. The pleadings of the parties as well as the decisions and awards of the arbitral tribunal are available online for numerous, particularly recent, proceedings.

According to Art. 48 Para. 4 of the ICSID Arbitration Rules, arbitration awards must be published at least in part. The publication takes place online. Article 29 of the model contract for US-American bilateral investment agreements since 2004 also provides for all procedural documents to be made public as far as possible and the possibility of submitting Amicus Curiae briefs .

In 2013, UNCITRAL published rules on transparency in investor-state arbitration. After that, the entire arbitration award and all procedural documents such as the parties' pleadings, minutes of negotiations and resolutions must be published (Article 3 of the Rules). UNCITRAL maintains an online register for this. The rules are not binding, but only applicable if this is provided for in the relevant investment protection agreement, or if the parties to an investment dispute agree on them. In order to ensure that the rules are applied in as many cases as possible, the UN General Assembly adopted a convention on transparency in investor-state arbitration (Mauritius Convention) at the end of 2014, which has been ratified since March 2015. It extends the UNCITRAL transparency rules to existing investment protection agreements. The prerequisite is that the defendant state has ratified the Mauritius Convention and the investor belongs to a state that is also bound by the Mauritius Convention. The applicability of the rules is also provided for in the draft free trade agreement between the EU and Canada published in September 2014 .

Missing instance

It is also criticized that arbitral awards z. B. are binding under international law in the ICSID procedure, without a further arbitration panel or a review by national courts being provided. The lack of a second instance is also a reason for the sometimes inconsistent interpretation of investment protection agreements.

Proponents of the current system point out that investment arbitration tribunals are intended to enable investors to enforce their rights without the involvement of the national courts of the host state, which would be counteracted by a state review body. The ICSID also has an "Annulment Committee" that can annul arbitral awards that have been reached in violation of the legal hearing (a standard that is, however, perceived as too narrow to be able to reliably correct incorrect judgments). Arbitral awards from proceedings that do not come under the ICSID Convention can be set aside by state courts according to the law of the place of arbitration . They must also be declared enforceable under the New York Convention , which also allows for review by state courts.

Lack of structural independence of the arbitrators

Unlike state judges, arbitrators who act in investment arbitration do not enjoy a lifetime appointment. Your workload, and therefore your pay, is much more dependent on the number of cases brought before an investment arbitration tribunal. Since only investors, not states, can initiate investment arbitration proceedings, the arbitrators therefore have an incentive to interpret investor rights generously in order to motivate additional lawsuits. The problem is exacerbated by the fact that arbitrators often also act as party representatives in investment arbitration and thus benefit twice from a general growth in investment arbitration.

The objection is raised that arbitrators have to protect their own reputation in order to be reappointed, as well as that of the investment arbitration system as a whole, in order to prevent states from withdrawing from it. In addition, there is no alternative: An organization that could provide independent, permanent judges for international conflicts does not exist.

Position of the EU Commission

The EU, since 1 September 2009 for bilateral investment agreements and investment protection agreements holds the exclusive authority, has the transparency thoughts and concerns about the "policy space" made his motto: EU Trade Commissioner Karel De Gucht assured in 2013 with a view the TTIP negotiations :

  • EU investment agreements will explicitly state that they cannot undermine legitimate government policies.
  • The EU Commission will take vigorous action against companies that use legal loopholes to construct abusive lawsuits against governments.
  • The EU Commission will make the investment procedures available for public scrutiny.
  • The EU Commission will eliminate any conflicts of interest; the arbitrators in EU cases must be outside of any suspicion.

Position of the European Court of Justice

The European Court of Justice (ECJ) has paved the way for national parliaments to veto free trade agreements. The judges in Luxembourg ruled on May 16, 2017 that treaties like the one with Singapore do not fall within the sole competence of the EU institutions. As a reason for its decision, the ECJ listed planned rules for settling disputes between states and investors. Provisions that remove disputes from the jurisdiction of member states could not be introduced without their consent, the Court ruled. In addition, provisions on foreign investment are not the exclusive competence of the EU institutions.

Current discussions

Investment arbitration in free trade agreements with EU participation

On the occasion of the planned Canada-EU trade agreement Comprehensive Economic and Trade Agreement  (CETA) and the US-American-European Transatlantic Investment Partnership (TTIP), whose drafts provide for ISDS proceedings, there was widespread public criticism of investment arbitration proceedings in general and against states developed legal systems in particular. Many European politicians and activists stated that investment protection is not necessary in either CETA or TTIP, as the state judiciary of the participating states offers sufficient legal protection. The European Court of Justice stated in March 2018 that an investor-state arbitration provision in an investment protection agreement concluded between two member states affects the autonomy of Union law and also fundamentally questions the compatibility of arbitration clauses in investment protection agreements with EU law.

Establishment of an international investment court

One reform proposal that goes beyond the improvement of individual elements of investment arbitration is the establishment of a permanent international investment court. Judges appointed for life are intended to ensure confidence in the independence and impartiality of arbitration tribunals. The proposal was taken up in February 2015 in a resolution of the EU's social democratic trade and economy ministers on the future of investment protection, which was approved by Greenpeace Austria. For such a court of justice, Greenpeace calls for permanent judges, complete transparency of the procedure according to the UNCITRAL transparency rules , the right of states to sue investors, a clear definition of enforceable rights, an obligation to submit to the ECJ for the interpretation of EU law and consideration of the investment Policy Framework for Sustainable Development of UNCTAD . A resolution of the EU Parliament on TTIP in July 2015 also called for the existing ISDS system to be replaced by independent judges who decide in public and whose judgments are examined by an appellate body.

The European Commission has by Trade Commissioner in autumn 2015 Cecilia Malmström presented a proposal for a fundamental reform of the ISDS system. The public investment jurisdiction should consist of a court of first instance and a court of appeal bilaterally, judgments should be passed by publicly appointed judges with high qualifications comparable to those of members of other permanent international courts such as the International Court of Justice and the WTO Appellate Body, which Investors' opportunities to take a case to court should be precisely defined and possible grounds for action in cases such as targeted discrimination based on gender, race or religion, nationality, expropriation without compensation or formal denial of justice should be specified. The right of governments to regulate should be guaranteed in the provisions of trade and investment agreements. The Commission now wants to discuss the proposal with the Council and the European Parliament. The proposal is then to be included as an EU proposal in the trade talks with the USA and also serve as a basis for negotiations in other ongoing and future negotiations. On November 12, 2015, the Commission announced that the proposal had been presented to the US delegation in the TTIP negotiations. Observers doubt whether the US will accept the proposal.

The proposal was described in a paper by various NGOs as a "cosmetic correction" of the previous ISDS system, which hardly goes into the core of the criticism of the ISDS system. The German Association of Judges questioned in a statement that the EU Commission had the competence to create a permanent investment court and whether the Commission's proposal would sufficiently ensure the independence of the judges of such a court. It is the task of the EU member states to ensure access to the law for foreign investors as well. The establishment of an investment court is therefore the wrong way to guarantee legal certainty. The lobby association Businesseurope , on the other hand, criticizes that parts of the proposal could make it too difficult to file arbitration.

At the end of February 2016, the EU Commission announced that, instead of the originally planned ad hoc arbitration tribunals, a permanent multilateral investment court with the possibility of appeal would be set up in CETA . The body is to consist of 15 members nominated by the EU and Canada, who decide on individual cases in three-party tribunals. The members of the tribunal may not act as lawyers or experts in other investment proceedings.

Examples of major investment arbitration

North America

Canada

Various investment arbitration proceedings have already taken place against Canada as part of the North American free trade agreement, NAFTA , the country had had to settle a number of large claims for damages from the USA in the past two decades, and is the industrialized country most sued under ISDS. The Canadian CETA chief negotiator stated that while American companies had sued Canada several times, the sum of the damages to which Canada had actually been sentenced was around US $ 150 million over a period of 20 years and thus “not a very negative one Effect ”. Around 2015, there are still processes pending to the tune of 4 billion euros.

For example, the fracking company Lone Pine is suing Canada for the cancellation of an exploration permit to search for gas under the Saint Lawrence River through the province of Quebec. Lone Pine can rely on NAFTA because the company is incorporated in Delaware while its actual administrative headquarters are in Calgary, Canada. The claim is at least $ 250 million. The US pharmaceutical company Eli Lilly also sued Canada in 2013 for payment of US $ 500 million because a Canadian court invalidated two of its patents. US company Windstream Energy LLC is suing $ 475 million over a moratorium on offshore wind power that the province of Ontario enacted in February 2011.

Mexico

In 2009, the US company Cargill sued Mexico over Mexican import restrictions on corn syrup . The case was amicably settled following an arbitration award in 2013 for the payment of over $ 77 million.

Latin America

Venezuela

In October 2014, an ICSID arbitration court ordered Venezuela to pay ExxonMobil $ 1.6 billion in compensation for lost profits from the nationalization of the "Cerro Negro" development project in 2007. Venezuela had previously paid 900 million for the nationalization, which the arbitration tribunal found to be too little. ExxonMobil had asked for over $ 10 billion. Venezuela terminated the ICSID convention in 2012. Yet more than 20 legal proceedings remain pending, including a lawsuit for more than $ 30 billion by ConocoPhillips .

Ecuador

Occidental Petroleum

In October 2012, an ICSID tribunal issued an arbitration award obliging Ecuador to pay Occidental Petroleum $ 2.3 billion . Ecuador had terminated a license agreement with the oil company for an oil field after the latter had, in violation of Ecuadorian law, transferred part of its rights to the field to another company without obtaining the consent of the Ecuadorian energy minister. The tribunal declared the dismissal to be disproportionate and thus a violation of investors' right to fair and equitable treatment under the US-Ecuador investment protection agreement, customary international law and Ecuadorian law. It was the highest arbitration award in the history of ICSID to date. Ecuador filed a motion to set aside the award under ICSID rules. In November 2015, the ICSID Annulment Committee lowered the compensation claim by $ 700 million and otherwise upheld the arbitration award. According to the former Ecuadorian energy minister, by terminating the contract, Ecuador was able to record additional income that is several times the amount of the damages awarded.

Chevron
Oil pollution in Lago Agrio 2007

Die Zeit described Chevron's lawsuitagainst Ecuador in 2014 as perhaps "the most sensational lawsuit in international investor jurisdiction." Chevron sued Ecuador after being sentenced to $ 9.5 billion in damages by Ecuadorian state courts. The subject of the lawsuit was massive environmental damage allegedly caused by Texaco and the state-owned company Petroecuador between the 1960s and 1992. Texaco was bought by Chevron in 2001. Texaco reportedly caused 70 billion liters of toxic materials and 900 contaminated landfills. Chevron relied on a payment made by Texaco in 1995. A court in New York found in early March 2014 that the plaintiffs' attorneys had influenced the negotiations in Ecuador through bribery and falsified evidence. Therefore, at least in the USA, they should not enforce any claims for damages against Chevron.

Uruguay

The American tobacco company Philip Morris International sued Uruguay in 2010 in an ICSID arbitration court for a tightening of the non-smoking protection laws for damages amounting to 25 million US dollars. The lawsuit was dismissed in 2016. A similar lawsuit against Australia was dismissed in 2015 for lack of jurisdiction in the arbitration tribunal.

Europe

Germany

In April 2009, the Swedish energy company Vattenfall filed a lawsuit with an ICSID arbitration tribunal regarding environmental requirements imposed by the city of Hamburg , which were made to the company in the course of the approval for the construction of the Moorburg coal-fired power station . The proceedings ended without an arbitration award through a settlement.

In 2012, Vattenfall again sued an ICSID court of arbitration for compensation for unnecessary expenses and lost profits due to the nuclear phase-out after the Fukushima nuclear disaster . The decisive question is whether Germany has violated the “Fair and Equitable Treatment” requirement of the Energy Charter Treaty by terminating the nuclear consensus .

Russia

The largest investment arbitration to date was brought against the Russian Federation by the former majority shareholders of the Russian oil and gas company Yukos . In 2014, the plaintiffs were awarded damages of over 50 billion US dollars for breaking up the group. Here, too, the legal basis was the Energy Charter Treaty .

The judgments of the arbitral tribunal were overturned on April 20, 2016 by a state court in The Hague.

Romania

The Canadian mining company Gabriel Resources sued Romania in 2015 for the blocking of a gold mining project in Roșia Montană for compensation payments before an ICSID tribunal. Gabriel Resources had previously named claims for damages of up to four billion US dollars.

"Solar Claims"

In March 2016, a total of 39 investment arbitration proceedings were pending due to the withdrawal of subsidies and feed-in tariffs for solar systems in various European countries as part of the financial crisis. 27 of these cases concern Spain, seven the Czech Republic and five Italy.

Web links

Individual evidence

  1. ↑ cf. Reinisch in Tietje (Ed.): International Business Law . 2009, § 18 Rn. 5-10.
  2. ↑ Reinisch in Tietje (ed.): Internationales Wirtschaftsrecht . 2009, § 18 Rn. 14th
  3. ^ The arbitration game - Governments are souring on treaties to protect foreign investors , Economist.com of October 11, 2014.
  4. ↑ Andrew Newcombe, Lluís Paradell: Law and Practice of Investment Treaties . 2009, p. 43.
  5. ↑ Andrew Newcombe, Lluís Paradell: Law and Practice of Investment Treaties . 2009, p. 44.
  6. ↑ UNCTAD, World Investment Report 2014 - Investing in the SGDs: An Action Plan, p. 124 (PDF).
  7. ↑ UNCTAD, World Investment Report 2014 - Investing in the SGDs: An Action Plan, p. 126 (PDF).
  8. ↑ World Investment Report 2014 - Investing in the SGDs: An Action Plan . (PDF) UNCTAD, p. 125.
  9. ^ A b c Mattias Kumm : An Empire of Capital? Transatlantic Investment Protection as the Institutionalization of Unjustified Privilege . Verfassungsblog, May 27, 2015.
  10. ↑ Investment protection agreement : more legal certainty or waiver of sovereignty? In: Wirtschaftsdienst , 94th year, 2014, issue 7; see Figure 3 and notes.
  11. ↑ Andrew Newcombe, Lluís Paradell: Law and Practice of Investment Treaties . 2009, p. 72.
  12. ^ R. Doak Bishop, James Crawford et al. (Ed.): Foreign Investment Disputes: Cases, Materials and Commentary . 2nd Edition. 2014, p. 1.
  13. ↑ Andrew Newcombe, Lluís Paradell: Law and Practice of Investment Treaties . 2009, p. 72.
  14. ↑ Jochen von Bernstorff, Disputes about regulation of investors for the common good belong before the national courts in a democratic constitutional state , Verfassungsblog.de, May 15, 2014.
  15. ↑ Ska Keller , Investor-State Lawsuits Endanger Democracy ( Memento from November 20, 2014 in the Internet Archive ), March 26, 2014.
  16. ^ Sarah Anderson, Institute for Policy Studies , USA , in: Peter Kreysler : deutschlandfunk.de: TTIP - Transatlantic Dream or the Sellout of Democracy . Deutschlandfunk , Das Feature , December 9, 2014; Manuscript (PDF) p. 23.
  17. ↑ see Kyla Tienhaara, Regulatory chill and the threat of arbitration: a view from political science , Evolution in Investment Treaty Law and Arbitration, Chester Brown, Kate Miles, eds., Cambridge University Press, 2011.
  18. ↑ cf. Philip Morris v. Uruguay: Will investor-State arbitration send restrictions on tobacco marketing up in smoke? , iisd.org of July 12, 2011.
  19. ↑ Free trade agreement - How corporations drive states in front of them , Zeit.de of March 27, 2014.
  20. ↑ Stephan W. Schill: Do Investment Treaties Chill Unilateral State Regulation to Mitigate Climate Change . In: Journal of International Arbitration , 2007, p. 469 in relation to environmental regulation
  21. ^ Charles N. Brower , Sadie Blanchard: From “Dealing in Virtue” to “Profiting from Injustice”: The Case Against “Re-Statification” of Investment Dispute Settlement . ( Memento of the original from April 2, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) Harvard International Law Journal , 2014, p. 45 ff. @1@ 2Template: Webachiv / IABot / www.harvardilj.org
  22. ↑ TTIP: On the discussion about the settlement of disputes by international arbitration tribunals ( Memento from April 2, 2015 in the Internet Archive ) (PDF) Statement by the law firm Borris Hennecke Kneisel from September 11, 2014.
  23. ^ David Böcking: Free trade agreement: "We need equality of arms between the state and corporations" . Interview with the judge at ICSID Klaus Sachs, lawyer in the commercial law firm CMS Hasche Sigle . In: Spiegel online. March 26, 2014. Retrieved February 6, 2015.
  24. ↑ Louis T. Wells, The Emerging Global Regime for Investment: A Response , Harvard International Law Journal Vol 52 (October 2010), p. 43 (49), online ( Memento of the original from February 11, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF). @1@ 2Template: Webachiv / IABot / www.harvardilj.org
  25. ↑ Louis T. Wells: The Emerging Global Regime for Investment: A Response . In: Harvard International Law Journal , Volume 52, October 2010, p. 43 (49), harvardilj.org ( memento of the original from February 11, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) @1@ 2Template: Webachiv / IABot / www.harvardilj.org
  26. ^ Philip Morris Asia Limited v. The Commonwealth of Australia , UNCITRAL, PCA Case No. 2012-12 .
  27. ↑ Amy Corderoy, Australia wins first battle in plain packaging trade dispute , Sydney Morning Herald , July 3, 2014.
  28. ↑ Phillip Morris - Tobacco company loses arbitration proceedings against Australia , faz.net, December 23, 2015.
  29. ↑ Axel Flessner, TTIP and Constitutional Law , verfassungsblog.de , May 13, 2014.
  30. ↑ David Buntenbroich, Markus Kaul: transparency in investment arbitration - The case of Vattenfall and the UNCITRAL transparency rules . In: Arbitration VZ , 2014, 1 (6).
  31. ↑ Jörg Risse, Nicolas Gremminger: The Truth About Investment Arbitration (not only) under TTIP - Four Case Studies , ASA Bulletin 2015, pp. 465–484.
  32. ↑ on icsid.worldbank.org , in many cases the parties' pleadings and other documents can also be found there.
  33. ^ UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. UNCITRAL.org
  34. ↑ at uncitral.org .
  35. ↑ unis.unvienna.org .
  36. ↑ Mauritius Convention: More Transparency in Investor-State Arbitration ( Memento of October 11, 2015 in the Internet Archive ) (PDF) bmwi.de.
  37. ^ Albrecht Meier: Bundestag debates Ceta and TTIP: Investor protection? Yes, but ... The governing coalition and the opposition are engaged in a heated exchange in the Bundestag over the controversial investor protection in the free trade agreements with Canada and the USA. The federal government wants to advocate transparency in arbitration courts . In: Tagesspiegel , January 16, 2015
  38. ↑ Classen: The submission of democratic sovereignty to arbitration , EuZW 2014, 611 (616).
  39. ↑ a b Deepu Jojo Sushama, Appellate Structure and Need for Legal Certainty in Investment Arbitration , Kluwer Arbitration Blog, May 1, 2014.
  40. ↑ cf. Cracks, fight back! Against Arbitration-Bashing , ArbitrationVZ 2014, 265 (267).
  41. ^ Gus van Harten: Perceived Bias in Investment Treaty Arbitration . In: Michael Waibel, Asha Kaushal et al. (Ed.): The Backlash against Investment Arbitration . 2010.
  42. ^ William W. Park: Arbitrator Integrity . In: Michael Waibel, Asha Kaushal et al. (Ed.): The Backlash against Investment Arbitration . 2010.
  43. ↑ You're wrong, George Monbiot - there is nothing secret about this EU trade deal
  44. ↑ ECJ judgment: National parliaments have the right to veto free trade agreements in the sh: z of May 16, 2017
  45. ↑ A Compromise to Advance the Trade Agenda: Purge Negotiations of Investor-State Dispute Settlement - Free Trade Bulletin No. 57, March 4, 2014;
    BMWI: Gabriel: We don't need investment protection with TTIP and CETA . September 25, 2014.
  46. ↑ Judgment of the Grand Chamber of the European Court of Justice of March 6, 2018 in Case C-284/16 , accessed on December 13, 2018
  47. ↑ Elaboration PE 6 - 3000 - 57/18 of the European department of the German Bundestag : The judgment of the ECJ of March 6, 2018 in case C-284/16 (Slovak Republic / Achmea BV) and its effects on CETA and the multilateral Investment Court. bundestag.de (PDF; 219 kB)
  48. ↑ cf. Gus van Harten: A Case for an International Investment Court, Society of International Economic Law (SIEL) Inaugural Conference 2008 Paper, online .
  49. ↑ UNCTAD: Reform of Investor-State Dispute Settlement: In Search of a Roadmap, June 2013, p. 9, online (PDF).
  50. ↑ Improvements to CETA and beyond - Setting milestones for modern investment protection ( Memento from April 2, 2015 in the Internet Archive ) (PDF) unofficial German translation, SPD.de, accessed on February 28, 2015.
  51. ↑ Gabriel presents a compromise on Ceta , Zeit.de of February 22, 2015.
  52. ↑ a b Greenpeace: Develop alternatives to ISDS separately from trade agreements! ( Memento of April 2, 2015 in the Internet Archive ), press release of February 24, 2015.
  53. ↑ Resolution - EU Parliament says yes to TTIP, Heute.de of July 8, 2015 ( Memento of July 12, 2015 in the Internet Archive ).
  54. ↑ a b c d Commission proposes investment jurisdiction for TTIP and other trade agreements . Press release from September 16, 2015, ec.europa.eu.
  55. ↑ EU finalises proposal for investment protection and Court System for TTIP . EU Commission, November 12, 2015.
  56. ↑ a b EU faces tough sell on TTIP compromise , politico.com, February 7, 2016.
  57. ↑ Brief analysis of the reform proposal of the EU Commission from September 16, 2015 . (PDF) joint paper by Campact , PowerShift and TTIP Unfair tradable.
  58. ^ Opinion on the establishment of an investment court for TTIP - proposal of the European Commission of September 16 , 2015 and November 12, 2015 ( Memento of February 8, 2016 in the Internet Archive ), German Association of Judges, February 2016.
  59. ↑ TTIP should include fair investor-state dispute settlement , BusinessEurope, September 16, 2015.
  60. ↑ CETA: EU and Canada agree on new approach on investment in trade agreement , press release of the EU Commission of February 29, 2016.
  61. ↑ a b “If you have CETA, you get TTIP through the back door.” Quoted from Helmut Kretzl: The standards were falling even before TTIP . In: Salzburger Nachrichten . November 30, 2015, Economy, p. 13 (Interview with Maude Barlow , environmental activist and alternative Nobel Prize winner).
  62. ↑ Interview with Steve Verheul. In: Die Zeit , No. 43/2014, p. 27.
  63. ^ Lone Pine Resources Inc. v. Government of Canada . international.gc.ca → NAFTA - Chapter 11 - Investment → Cases Filed Against the Government of Canada , accessed January 9, 2016.
  64. ^ With the Canada agreement CETA threatens wave of lawsuits: gateway for fracking . In: Kurier online, November 20, 2014.
  65. ↑ Quebec's St. Lawrence fracking ban challenged under NAFTA . The Globe and Mail, November 22, 2012.
  66. ↑ CBC News: Eli Lilly files $ 500M NAFTA suit against Canada over drug patents, September 13, 2013 .
  67. ↑ thestar.com
  68. ↑ italaw.com
  69. ^ Nate Raymond: [ARCHIVE Cargill settles NAFTA dispute with Mexico] ( English ) In: Reuters . February 21, 2013. Archived from the original on September 27, 2015. Retrieved on September 27, 2015.
  70. ↑ Venezuela has to pay 1.6 billion dollars to Exxon - Wirtschaft - Süddeutsche.de , Caracas celebrates judgment in dispute with ExxonMobil - America21 , October 2014.
  71. ↑ venezuelanalysis.com .
  72. ↑ a b Oxy vs Ecuador: Chronicle of a Death Foretold , kluwerarbitrationblog.com, December 4, 2015.
  73. ↑ Cheng / Bento: ICSID's Largest Award in History: An Overview of Occidental Petroleum Corporation v the Republic of Ecuador , Kluwer Arbitration Blog, December 19, 2012 .
  74. ↑ Ecuador files appeal to $ 1.77 bln Occidental ruling . Reuters.
  75. ^ Decision of the Annulment Committee. ( Memento from December 8, 2015 in the Internet Archive )
  76. ^ Free trade agreement: Chevron against Ecuador . In: Zeit Online . March 27, 2014 ( zeit.de [accessed October 29, 2016]).
  77. ↑ Alexandra Endres, Lukas Koschnitzke: Free trade agreement: How corporations drive states in front of them . In: Zeit Online . March 27, 2014 ( zeit.de [accessed October 29, 2016]).
  78. ↑ Victory before arbitration tribunal: Uruguay is allowed to ban smoking. In: FAZ . July 9, 2016. Retrieved July 9, 2016 .
  79. ↑ Phillip Morris - Tobacco company loses arbitration proceedings against Australia , faz.net, December 23, 2015.
  80. ^ Lawsuit about the Moorburg power plant: Federal government and Vattenfall agree. on: Spiegel-online. August 26, 2010.
  81. ^ Vattenfall: 15 lawyers against democracy . Frankfurter Rundschau , March 23, 2013.
  82. ↑ Hans-Georg Dederer: Vattenfall sues against nuclear phase-out . lto.de, June 12, 2012; Retrieved June 9, 2013.
  83. ↑ Unexpected success for Moscow in the Yukos case.
  84. ↑ [ARCHIVE Gabriel Resources opens arbitration proceedings against Romania] ( English ) In: Allgemeine Deutsche Zeitung für Romania . July 24, 2015. Archived from the original on September 27, 2015. Retrieved September 27, 2015.
  85. ↑ Whose Sovereignty? Gabriel Resources v. Romania , Huffington Post, August 6, 2015.
  86. ↑ a b jus.uio.no