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Investment Treaty Law and Arbitration: Common Controversies

By Anthea Roberts,

Centre for International Governance & Justice, RegNet

My previous blog provided an introduction to investment treaty law and arbitration. In this blog, I consider some controversial aspects of an area of law that has only recently attracted widespread public attention.

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An Introduction to Investment Treaty Law and Arbitration

By Anthea Roberts,

Centre for International Governance & Justice, RegNet

High profile cases in which corporations have taken states to arbitration, such as the case brought by tobacco company Philip Morris against Australia, have drawn public attention to an area of treaty law that has until recently been poorly understood except by a small club of experts. This blog provides an introduction to investment treaty law. A subsequent blog will discuss some of its more contentious aspects.

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Centre for International Governance and Justice: News and Events

Examiners applaud ‘an exceptional’ PhD

Shane, supervisor Jeremy Farrall, and ‘Law’s rule – Liberia and the rule of law’

Shane, supervisor Jeremy Farrall, and ‘Law’s rule – Liberia and the rule of law’

Regarding Rights is thrilled to announce that Shane Chalmers’s PhD has been approved. Shane is a popular RR contributor (see his posts, ‘The Living Dead’ and ‘The “call and answer” of the Universal Periodic Review’), and the introduction to his thesis, Law’s Rule: Liberia and the Rule of Law appeared earlier this year in the post, ‘Being detained: Prelude to a thesis on Liberia and the rule of law’.

Shane’s examiners described his thesis as both a pleasure to read and ‘a truly interdisciplinary work of scholarship’. Peter Rush commented:

This is an exceptional thesis….Its contribution is not only to the study of the discourses and institutions of the rule of law in Liberia, but also to contemporary theories of law’s rule, of legal pluralism, and of post-conflict studies, as well as to the jurisprudence of law. Its facility with the existing debates in these fields, as well as the politics of rule of law debates in international law and in Liberia, is nothing less than remarkable.

Shane is currently undertaking an Australian Endeavour Postdoctoral Fellowship on ‘The Rule of Law in Transition’. The Fellowship is hosted by the Oñati International Institute for the Sociology of Law in Spain, and Shane plans to spend his time transforming his thesis into a book. Enjoy your time at Oñati Shane – and congratulations on a wonderful PhD result!

Masterclass on investment treaties

StopTheTPPsurfboard%20flickr%20attribute%20to%20SumOfUsCIGJ Associate Professor, Anthea Roberts, held a masterclass recently on the global Investment Treaty System that has emerged since the 1990s.

Based on thousands of bilateral investment treaties and free trade agreements, the system has also seen hundreds of investor-state arbitrations. These arbitrations, in which private corporations can take states to arbitration under the terms of state-based investment treaties, have been hugely controversial. In some cases, investors have been awarded large damages – in one case the Czech Republic was required to pay a sum equivalent to its annual health budget.

Originally promoted as a way of encouraging foreign direct investment in states, whether the system actually has any impact on business investment decisions is now unclear. Also troubling is evidence that poor or weaker states have entered treaties that contain ‘investor-state dispute settlement clauses’ – allowing private companies to sue states – with little understanding of the liability implications.

While wealthy states have also found themselves drawn into costly arbitrations, including the case brought by the tobacco company, Philip Morris, against Australia, these states are now drafting investment treaty obligations more carefully and narrowly, attempting to achieve a better balance between investor protection and state sovereignty. However, many older style investment treaties remain in effect, causing risks for treaty parties.

Following Anthea’s masterclass, RegNet visitor Richard Braddock gave a seminar on recent developments in investment agreements, discussing how governments are attempting to exercise greater control over the terms of the agreements and the resolution of investor-state disputes.

Regarding Rights will publish a post based on Anthea’s masterclass in coming weeks.