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The political economy of the investment treaty regime


The Political Economy of the Investment
Treaty Regime



The Political
Economy of the
Investment Treaty
Regime
Jonathan Bonnitcha
Lauge N. Skovgaard Poulsen
Michael Waibel

1


3

Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom

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OUP CORRECTED PROOF – FINAL, 27/6/2017, SPi

■ PREFACE

In 2007, the German city of Hamburg allowed a Swedish energy company to
place a large coal-fired power plant on the banks of the Elbe river. The
company, Vattenfall, began construction of this power plant; however, against
the background of growing opposition among civil society groups and local
politicians, the urban planning agency decided to impose significant restrictions on the plant’s water usage in return for final approval. The measures were


costly, but according to local authorities all companies operating along the river
were subject to them, and they complied with European and German law.
In March 2009, Vattenfall challenged the decision based on the 1991
Energy Charter Treaty (ECT). The treaty gave Vattenfall extensive protections
against a broad range of state measures and was backed up by a powerful
dispute settlement mechanism: investment treaty arbitration. The ECT allowed
Vattenfall to take Germany directly to international arbitration. Here, three
private arbitrators could hear the dispute and potentially award significant
damages to the investor. Vattenfall claimed the measures amounted to indirect
expropriation and unfair treatment and asked for more than US$1.5 billion plus
arbitration costs and interest.
The arbitration enraged non-governmental organizations (NGOs) and
German politicians. The deputy environment minister said it was ‘unprecedented how we are being pilloried just for implementing German and EU laws’
(Müller quoted in Knauer 2009). Had Germany lost the arbitration and failed
to comply with the tribunal’s award, however, Vattenfall could have enforced
the award against Germany’s commercial assets around the world. Also,
Germany has signed dozens of bilateral investment treaties (BITs) since
1959, and German companies have increasingly relied on the treaties to
resolve disputes with foreign states. Refusing to comply with an arbitral
award would question Germany’s continued commitment to the investment
treaty regime. In March 2011, the parties settled. Hamburg lowered the
environmental requirements on the power plant in exchange for Vattenfall
dropping the arbitration and German court proceedings (Verheyen 2012).
In 2017, the European Court of Justice found that the original decision to
authorize construction of the power plant breached EU law because it was not
supported by a sufficiently comprehensive environmental impact assessment.
In 2012, Vattenfall filed a second arbitration against Germany, also based
on the ECT. This time Vattenfall asked for US$6 billion, and the subject of the
dispute was Germany’s decision to phase out nuclear power after the 2011
nuclear disaster at Fukushima in Japan. As this book goes to press, the arbitration
remains pending, but its political fallout was clear: NGOs, newspapers, and


vi

PREFACE

politicians across Europe were outraged that multinational corporations could
bypass domestic courts and use a little-known treaty to foil Germany’s phase-out
from nuclear power, or at least make it a very costly reform.
The two Vattenfall arbitrations have been part of a broader trend. Since the
early 2000s, foreign investors have increasingly relied on the global network of
more than 3000 investment treaties to file international arbitrations against
states. It is impossible to say with accuracy just how many arbitrations investors
have filed, as some investment treaties allow disputes to be adjudicated in
confidence. However, by 2016, we knew of more than 700 arbitrations against
almost 100 states, at a rate of more than 50 arbitrations annually in the last five
years. Although these figures are low compared to litigation in domestic courts,
they are high compared to other international law regimes. In the World Trade
Organization (WTO), for instance, its 164 member states filed less than 15 disputes annually in 2014 and 2015. As to the substance of the disputes, investors
have used the treaties to ask for compensation for a very wide range of
government conduct, including taxation, changes to the pricing of key utilities,
public health, environmental and financial regulation, and much more.
This has made investment treaty arbitration highly controversial. Developing
countries have been subject to the clear majority of arbitrations thus far, and
some have attempted to renegotiate their treaties on more favourable terms.
A few have decided to go further and terminate their treaties. Unilateral exit is
difficult, however, as many treaties include ‘survival clauses’ that ensure that
treaty protections remain in force for investments made prior to termination.
Sometimes these clauses can ‘lock in’ treaty protections for up to twenty years.
In developed states, as well, investment treaty arbitration has become a
salient topic because of cases such as Vattenfall. In 2014, growing public
discontent led the European Commission to hold a public online hearing
about its plans to include investment treaty arbitration in the Transatlantic
Trade and Investment Partnership (TTIP). Of the responses, 97% opposed
investment treaty arbitration, as almost 150,000 European citizens agreed with
NGOs that this mechanism did not belong in TTIP or, many argued, any other
international agreement.
Yet, despite the mounting criticisms, only a few states have decided to
cancel their treaties altogether, and states around the world continue to
negotiate treaties allowing foreign investors to file arbitrations based on farreaching substantive protections. Investment treaties are here to stay. This
raises important political, economic, and legal questions. What are the costs
and benefits of investment treaties for investors, states, and other stakeholders? Are they critical instruments to promote economic and political
development, or are they simply a subsidy to already powerful multinationals?
Is it a good idea for private arbitrators to be able to review state regulation and
award compensation to foreign investors? And why did states sign these
treaties in the first place? This book tries to provide the answers.


■ ACKNOWLEDGEMENTS

The idea for this book was born out of a workshop that Lauge Poulsen and
Michael Waibel hosted at the London School of Economics in April 2012. In
writing this book over the last four years, we accumulated debts to many
academic colleagues, policy-makers, and our students at Cambridge, LSE,
UCL, and UNSW who generously contributed their time and expertise. We
are very grateful for their help. Of course, we are solely responsible for any
remaining errors.
For comments on draft chapters we are grateful to participants at the ILAP
seminar at UCL, as well as to Lorand Bartels, Markus Burgstaller, Jacob Eisler,
Yoram Haftel, Jean Ho, Matthew Hodgson, Steffen Hindelang, Roland Kläger,
Andreas Kulick, Nikos Lavranos, William Magnusson, Ola Mestad, Federica
Paddeu, Sergio Puig, Dávid Pusztai, Pedro Saffi, Stephan Schill, Andrew
Sanger, Esmé Shirlow, Taylor St. John, Todd Tucker, Valentina Vadi, Ingo
Venzke, Pierre-Hughes Verdier, André von Walter, Jorge Viñuales, Yanhui
Wu and Rumiana Yotova.
Emma Aisbett, John Bell, Peter Harris, Donald Rakestraw, Diana Rosert, Jay
Sexton, Rajesh Ramloll, and Veronika Fikfak were generous with their time to
discuss different aspects of our analyses. Wolfgang Alschner, Joachim Pohl,
and David Gaukrodger at the OECD, Sergio Puig, and Zoe Williams kindly
shared their data.
Margherita Cornaglia, Anne-Christine Barthelemy, Damien Charlotin,
Hannah Dixie, Christina Gort, Emilija Marcinkeviciute, and Veena
Srirangam-Nadhamuni provided excellent research assistance, and Nicholas
Turner assisted with compiling the index.
For financial support, we thank The British Academy (Small Grants Scheme
SLA–U632, Lauge Poulsen and Michael Waibel), and The Leverhulme Trust
(Prize PLP-2014-133, Michael Waibel).
We have been most fortunate in our editors at Oxford University Press. We
thank Adam Swallow and Aimee Wright for believing in this project from the
beginning, and to Katie Bishop and Aravind Kannankara for their great skill
and patience in bringing it to conclusion. We are also grateful for the support
of John Louth and Merel Alstein.


viii

ACKNOWLEDGEMENTS

We dedicate this book to our children—Alasdair, Kai, Johan, and Sonia—all
of whom were born while we were working on this book. So far, they seem to
be coping very well without worrying about the political economy of the
investment treaty regime.
Jonathan Bonnitcha
Lauge Poulsen
Michael Waibel
Sydney, London, and Cambridge
1 November 2016


OUP CORRECTED PROOF – FINAL, 16/6/2017, SPi

■ TABLE OF CONTENTS

LIST OF FIGURES
LIST OF TABLES
LIST OF AGREEMENTS
LIST OF DECISIONS

1 The Investment Treaty Regime in Context

xi
xiii
xv
xxiii
1

2 Foreign Investment: Economic and Legal Foundations

33

3 Investment Treaty Arbitration

59

4 Standards of Investment Protection

93

5 The Microeconomics of Investment Treaties

127

6 Investment Treaties, Foreign Investment, and Development

155

7 Politics of Investment Treaties in Developed Countries

181

8 Politics of Investment Treaties in Developing Countries

207

9 Legitimacy and Governance Challenges

233

BIBLIOGRAPHY

261
315

INDEX



■ LIST OF FIGURES

1.1 Investment treaties under the radar

2

1.2 The investment regime complex and the investment treaty regime

7

1.3 Nationalizations of oil companies, 1960–1979

9

1.4 The liberalization dimension in investment treaties, 1959–2014

18

1.5 Spread of bilateral investment treaties, 1960–2016

20

1.6 Reference to ICSID in investment treaties, 1959–1979

24

1.7 Known investment treaty arbitrations, annual registrations
and decisions (1987–2016)

25

2.1 Global inward FDI flows, 1970–2014

35

2.2 Share of extractive industries in the inward FDI stock of selected
economies

43

2.3 Corporate structuring and investment treaty coverage

54

3.1 Instruments of consent in ICSID arbitrations (1972–2016)

61

3.2 Right to property disputes before the ECtHR (1990–2015)

85

5.1 Investment treaties as a solution to the hold-up problem

129

5.2 The distributive impact of an investment treaty in the
absence of a hold-up problem

131

5.3 Investment treaties and the problem of fiscal illusion

139

6.1 Investment treaties and judicial institutions: three options

171

7.1 Investment treaties as an instrument for the home state
executive to insulate foreign policy from interference by
outward investors

195

8.1 Investment treaty adoption as a prisoner’s dilemma

211

8.2 Domestic liberalization preceded the global era of investment treaties

212

8.3 Investment treaty adoption with network effects

214

8.4 Exceptions to pre-establishment national treatment in
selected US investment treaties

217

9.1 Domestic institutions involved in investment treaty disputes

237



■ LIST OF TABLES

1.1

National regulatory changes in domestic investment regimes,
1992–2000

10

1.2

Distribution of investment treaty arbitrations by country and sector

27

1.3

Amount of compensation in investment treaty arbitration

28

1.4

Most frequently appointed investment arbitrators

29

2.1

FDI flows, selected economies, 1970–2010

36

2.2

Foreign-owned vs. national plants in the United Kingdom

39

3.1

Security of tenure of different adjudicators

64

3.2

Costs of ICSID arbitrations (1972–2011)

88

3.3

Duration of ICSID arbitrations

90

3.4

Average length of civil litigation

91

4.1

Frequency of investment treaty provisions

94

4.2

Breaches of investment treaty provisions alleged and found
in known investment treaty arbitrations

94

Use of MFN to import different types of provisions

99

A.6.1 Quantitative studies examining the impact of investment
treaties on FDI

179

4.3



■ LIST OF AGREEMENTS

Unless otherwise noted, all investment treaties are available on UNCTAD’s
website (investmentpolicyhub.unctad.org/IIA). Investment treaties are referred
to by the treaty parties followed by the date of signature.

Treaties and other International Instruments
Agreement on Promotion, Protection and Guarantee of Investments among
Member States of the Organization of the Islamic Conference, 23 September
1986
259
Algeria–Vietnam BIT, Agreement between the Government of the Socialist
Republic of Vietnam and the Government of the People’s Democratic
Republic of Algeria, 21 October 1996
220
Argentina–Spain BIT, Acuerdo para la promoción y protección recíproca de
inversiones entre el Reino de España y la República Argentina, 3 October
1991
79, 99
Association of Southeast Asian Nations (ASEAN) Comprehensive Investment
Agreement, 26 February 2009
103, 108, 119
Australia–India BIT, Agreement between the Government of Australia and
the Government of the Republic of India on the Promotion and Protection of
Investments, 26 February 1999
98
Australia–Japan Free Trade Agreement, Agreement between Australia and
Japan for an Economic Partnership (JAEPA), 8 July 2014
67
Australia–Korea Free Trade Agreement, 8 April 2014
119
Australia–US Free Trade Agreement (AUSFTA), 18 May 2004
66, 204
Austria–India BIT, Agreement between the Government of the Republic of
Austria and the Government of the Republic of India for the Promotion and
Protection of Investments, 8 November 1999
229
Austrian–Kazakhstan BIT, Agreement for the Promotion and Reciprocal
Protection of Investment between the Government of the Republic of
Austria and the Government of the Republic of Kazakhstan, 12 January
2010
96–97, 100, 102
Brazil–Angola BIT, Agreement on Cooperation and Investment Facilitation
(ACFI), 1 April 2015
229
Brazil Model BIT 2015, Cooperation and Facilitation Agreement between the
Federative Republic of Brazil and [country name], 2004
51, 228


xvi LIST OF AGREEMENTS

Brazil–Mozambique BIT, Agreement on Cooperation and Investment
Facilitation (ACFI), 30 March 2015
67, 229
Bulgaria–Vietnam BIT, Agreement between the Government of the Socialist
Republic of Vietnam and the Government of the Republic of Bulgaria, 19
September 1996
220
Canada Model BIT 2004, Agreement between Canada and [country name] for
the Promotion and Protection of Investments, 2004
69, 107, 113
Canada–United States Free Trade Agreement (CUSFTA), Canada–United
States Free Trade Agreement Implementation Act, 2 January 1988
217
Central American Free Trade Agreement (CAFTA), 28 May 2004
252
Chad–Italy BIT, Agreement between the Government of the Italian Republic
and the Government of the Republic of Chad with the Aim of Protecting and
Promoting Capital Investments, 11 June 1969
24, 62
Comprehensive Economic and Trade Agreement (CETA) between Canada
and the European Union and its Member States, 30 October 2016
13, 28, 69, 83, 100, 103, 108, 113, 117, 227
Charter of Economic Rights and Duties of States, United Nations General
Assembly Resolution 3281, 12 December 1974, 14 ILM 251 (1975) 12, 20, 122
China–Japan–Korea Trilateral Investment Agreement, Agreement among the
Government of Japan, the Government of the Republic of Korea, and the
Government of the People’s Republic of China for the Promotion, Facilitation
and Protection of Investment, 13 May 2002
108
China Model BIT 1994, Agreement between the Government of the People’s
Republic of China and the Government of [country name] Concerning
the Encouragement and Reciprocal Protection of Investments, 1994
101, 113, 229–230
Chile–US Free Trade Agreement, Free Trade Agreement between the
Government of the United States of America and the Government of the
Republic of Chile, 6 June 2003
117, 178
Economic Partnership, Political Coordination and Cooperation Agreement
between the European Community and its Member States, of the one part, and
the United Mexican States, of the other part, 27 February 1997
18
Ecuador–US BIT, Treaty between the United States of America and the
Republic of Ecuador concerning the Encouragement and Reciprocal
Protection of Investment, 27 August 1993
90, 100, 102, 112, 116, 151, 163
Egypt–Qatar BIT, Agreement between the Government of the Arab Republic
of Egypt and the Government of the State of Qatar for the Reciprocal
Promotion and Protection of Investments, 12 February 1999
230, 251
Energy Charter Treaty, 17 December 1994, 34 ILM 360 (1995)
3, 26, 55, 72, 103, 159, 203


LIST OF AGREEMENTS xvii

EU–Chile Free Trade Agreement, Agreement Establishing an Association
between the European Community and the Republic of Chile, 18 November
2002
18, 178, 189
EU–Vietnam Free Trade Agreement 2016, Free Trade Agreement between the
European Union and the Socialist Republic of Vietnam, 1 February 2016
30, 69, 205, 227, 245
European Convention on Human Rights (ECHR), 4 November 1950, 213
UNTS 221
3, 5, 7, 65, 76, 84, 235
France–Mexico BIT, Agreement between the Government of the Republic of
France and the Government of the United Mexican States on the Reciprocal
Promotion and Protection of Investments, 12 November 1998
53
French Model BIT 2006, Draft Agreement between the Government of the
Republic of France and the Government of the Republic of [country name] on
the Reciprocal Promotion and Protection of Investment, 2006 103, 113, 116
General Agreement on Trade in Services (GATS), Annex 1B to the Agreement
Establishing the World Trade Organization, 15 December 1993, 33 ILM 1167
(1994)
3, 18, 97, 103
General Agreement on Tariffs and Trade (GATT) 1994, Annex IA to the
Marrakesh Agreement Establishing the World Trade Organization, 15
December 1993, 33 ILM 1153 (1994)
19, 97, 119, 183, 190, 191, 217
German Model BIT 2009, Treaty between the Federal Republic of Germany
and [country name] concerning the Encouragement and Reciprocal
Protection of Investments
108, 113, 197
Germany–Pakistan BIT, Treaty between the Federal Republic of Germany
and the Islamic Republic of Pakistan for the Promotion and Protection of
Investments, 25 November 1959
20, 87, 186–187
Germany–USSR BIT, Federal Republic of Germany and Union of Soviet Socialist
Republics Agreement Concerning the Promotion and Reciprocal Protection of
Investments (with protocol), 13 June 1989
53
Hong Kong–Australia BIT, Agreement between the Government of Hong
Kong and the Government of Australia for the Promotion and Protection
of Investments, 15 September 1993
56, 66, 204
ICC International Code for Fair Treatment of Foreign Investments, ICC
Brochure No. 129, June 1949
183
ICSID Convention, Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, 18 March 1965, 4 ILM 524 (1965)
23, 52, 72–74, 77–78, 80, 185–186, 193, 197,
208, 221, 226–228, 258
India Model BIT 2015, Bilateral Investment Treaty between the Government
of the Republic of India and [country name], 28 December 2015,
51, 68, 259


xviii LIST OF AGREEMENTS

International Law Commission, Articles on Responsibility of States for
Internationally Wrongful Acts, United Nations General Assembly Resolution
56/83, UN Doc A/ RES/56/83, 12 December 2001
5, 122
International Monetary Fund, Articles of Agreement, 27 December 1945, 2
UNTS 39
116, 209
Japan–Singapore Free Trade Agreement, Agreement between Japan and the
Republic of Singapore for a New-Age Economic Partnership (JSEPA), 13
January 2002
96
Kuwait–India BIT, Agreement between the State of Kuwait and the
Republic of India for the Encouragement and Reciprocal Protection of
Investment, 27 November 2001
98
Lisbon Treaty (European Union), Treaty of Lisbon amending the Treaty on
European Union and the Treaty establishing the European Community, 2007
Official Journal C306/01, 13 December 2007
203
Lithuania–Ukraine BIT, Agreement between the Government of Ukraine and
the Government of the Republic of Lithuania for the Promotion and Reciprocal
Protection of Investments, 8 February 1994
55
Multilateral Agreement on Investment (MAI), Draft Consolidated Text,
DAFFE/MAI(98)7/REV1, 22 April 1998, http://www1.oecd.org/daf/mai/pdf/
ng/ng987r1e.pdf
21, 191, 193
NAFTA Notes of Interpretation of Certain Chapter 11 Provisions, NAFTA
Free Trade Commission, 31 July 2001
112
Netherlands Model BIT 2004, Agreement on Encouragement and Reciprocal
Protection of Investments between [country name] and the Kingdom of the
Netherlands, 2004
53, 113, 188
Netherlands–Slovak Republic BIT, Agreement on the encouragement and
reciprocal protection of investments between the Kingdom of the
Netherlands and the Czech and Slovak Federal Republic, 29 April 1991
54, 116
New York Convention on the Recognition and Enforcement of Arbitral
Awards, 10 June 1958, 330 UNTS 38 (1959)
4, 63, 80, 186
North American Free Trade Agreement, Canada, Mexico and United States of
America, 17 December 1992, 32 ILM 289 (1993)
4, 18, 26, 42, 50, 67, 72, 75, 87, 91, 97, 101–103,
112, 117, 118, 151, 191, 192, 202, 203,
206, 216, 217, 237, 242, 245
OECD Declaration on International Investment and Multinational
Enterprises, 21 June 1976
21
Singapore–US Free Trade Agreement, United States—Singapore Free Trade
Agreement, 6 May 2003
104


LIST OF AGREEMENTS xix

South Africa–Zimbabwe BIT, Agreement between the Government of the
Republic of South Africa and the Government of the Republic of Zimbabwe
for the Promotion and Reciprocal Protection of Investments, 27 November 2009
(not in force)
230
South African Development Community (SADC) Model BIT, 2012
259
Spain–Mexico BIT, Acuerdo para la Promoción y Protección Recíproca de
Inversiones Entre El Reino de España y Los Estados Unidos Mexicanos, 10
October 2006
138
Switzerland-Pakistan BIT, Agreement between the Swiss Confederation and
the Islamic Republic of Pakistan on the Promotion and Reciprocal Protection of
Investments, 11 July 1995
20, 114
Thai Model BIT 2012, Agreement between the Government of the Kingdom
of Thailand and the Government of [country name] for the Promotion
and Protection of Investments, 2012
83
Transpacific–Partnership Agreement, 4 February 2016, Australia, Brunei,
Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore,
United States, and Vietnam
4, 18, 26, 100, 102, 103, 108, 117, 193, 203,
205, 230, 245
UK–Argentina BIT, Agreement between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of
the Republic of Argentina for the Promotion and Protection of Investments,
11 December 1990
124
UK Model BIT 2008, Model Text Agreement between the Government of the
United Kingdom of Great Britain and Northern Ireland and the Government
of [country name] for the Promotion and Protection of Investments, 2008
105, 188
UK–Tanzania BIT, Agreement between the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of the United
Republic of Tanzania, 7 January 1994
51, 237
UNCITRAL Rules (1996), United Nations Commission on International
Trade Law, http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules/
arbrules.pdf
72–73, 89
UNCITRAL Rules (2010), United Nations Commission on International
Trade Law, https://www.uncitral.org/pdf/english/texts/arbitration/arb-rulesrevised/
arb-rules-revised-2010-e.pdf
72–73, 89
United Nations Convention on Transparency in Treaty-based Investor–State
Arbitration, 17 March 2015, 54 ILM 747 (2015)
70, 248
US–Albania BIT, the Treaty between the Government of the United States of
America and the Government of the Republic of Albania Concerning the
Encouragement and Reciprocal Protection of Investment, 11 January 1995
224


xx

LIST OF AGREEMENTS

US–Argentina BIT, Treaty between United States of America and the Argentine
Republic Concerning the Reciprocal Encouragement and Protection of
Investment, 14 November 1991 51, 77, 106, 111, 112, 115, 119, 122, 200, 249
US–Czech Republic BIT, Treaty with the Czech and Slovak Federal Republic
Concerning the Reciprocal Encouragement and Protection of Investment,
22 October 1991
28, 249
US–Ecuador BIT, Treaty between the United States of America and the
Republic of Ecuador concerning the Encouragement and Reciprocal
Protection of Investment 27 August 1993
217
US–Egypt BIT, Treaty between the United States of America and the Arab
Republic of Egypt Concerning the Reciprocal Encouragement and Protection
of Investment, 11 March 1986
218
US–Kazakhstan BIT, Treaty between the United States of America and
the Government of the Republic of Kazakhstan Concerning the
Encouragement and Reciprocal Protection of Investment, 19 May 1992 200
US–Korea Free Trade Agreement, Treaty between the United States of
America and the Republic of Korea, 30 June 2007, https://ustr.gov/
tradeagreements/free-trade-agreements/korus-fta/final-text
217
US–Kyrgyzstan BIT, Treaty between the United States of America and the
Republic of Kyrgyzstan Concerning the Reciprocal Encouragement and
Protection of Investment, 19 January 1993
217
US Model BIT 2004, Treaty between the Government of the United States
of America and the Government of [country name] Concerning the
Encouragement and Reciprocal Protection of Investment, 2004
107, 113, 191
US Model BIT 2012, Treaty between the Government of the United States
of America and the Government of [country name] Concerning the
Encouragement and Reciprocal Protection of Investment, 2012
66, 69, 96, 113, 116, 117, 119, 190, 239
US–Poland BIT, Treaty between the United States of America and the Republic
of Poland Concerning Business and Economic Relations, 21 March 1990 219
US–Sri Lanka BIT, Treaty between the United States of America and the
Democratic Socialist Republic of Sri Lanka Concerning the Encouragement
and Reciprocal Protection of Investment, 20 September 1991
217
Uzbekistan–Vietnam BIT, Agreement between the Government of the
Socialist Republic of Vietnam and the Government of the Republic of
Uzbekistan, 28 March 1996
220
US–Zaire BIT, Treaty between the United States of America and the Republic
of Zaire Concerning the Reciprocal Encouragement and Protection of
Investment, 3 August 1984


LIST OF AGREEMENTS xxi

Domestic Instruments
Argentine Congress, Ley 25.561 de Emergencia Pública y de Reforma del
Régimen Cambiario (‘Public Emergency and Foreign Exchange System
Reform Law Nº 25.561’), 18 January 2002, http://www.mecon.gov.ar/digesto/
leyes/ley25561.htm (Argentina)
219
Hickenlooper amendment to the Foreign Assistance Act, 1961, sec 620 (e)(2),
https://www.usaid.gov/sites/default/files/documents/1868/faa.pdf (United States)
194
Regulation (EU) No. 912/2014 of 23 July 2014 establishing a framework for
managing financial responsibility linked to investor-to-state dispute
settlement tribunals established by international agreements to which the
European Union is party, [2014] OJ L 257, p. 121.
14
Resolution containing the European Parliament’s recommendations to the
European Commission on the negotiations for the Transatlantic Trade and
Investment Partnership (TTIP) (2014/2228(INI))’, 8 July 2015 (European
Union)
153
Smoke-free Environments (Tobacco Standardised Packaging) Amendment
Act 2016, Act No. 2016, No. 43, 14 September 2016 (New Zealand)
241
US Constitution, 5th Amendment
135, 137
US Trade Act 1974, 3 January 1975, 88 Stat. 1978 (United States)
190
US Trade Act 2002, 23 January 2002, 116 Stat. 933 (United States)
13
US Trade Promotion Authority Act 2015, Bipartisan Congressional Trade
Priorities and Accountability Act of 2015, 6 January 2015, 129 Stat. 319 153



■ LIST OF DECISIONS

Arbitration Awards
Investment arbitration awards and decisions are available at Andrew Newcombe’s Investment Treaty Arbitration website www.italaw.com.
Abaclat and Others v. Argentine Republic, ICSID Case No. ARB/07/5, Decision
on Jurisdiction and Admissibility, 4 August 2011.
51, 79, 86
Achmea B.V. (formerly Eureko B.V.) v. The Slovak Republic, PCA Case No.
2008-13, Final Award, 7 December 2012.
116
ADC Affiliate Ltd v. Republic of Hungary, ICSID Case No ARB/03/16, Award,
2 October 2006.
122
AES Summit Generation Limited v. Republic of Hungary, ICSID Case No ARB/
07/22, Award, 23 September 2010.
238
AIG Capital Partners Inc., CJSC Tema Real Estate Company v. Republic of
Kazakhstan, ICSID Case No ARB/01/6, Award, 7 October 2003.
200
Bernhard von Pezold and Others v. Republic of Zimbabwe, ICSID Case No.
ARB/10/15, Award, 28 July 2015.
116
Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case
No ARB/05/22, Award, 24 July 2006.
237
BG Group Plc. v. The Republic of Argentina, UNCITRAL, Award, 24 December
2007.
124
Cargill, Incorporated v. United Mexican States, ICSID Case No. ARB(AF)/05/
2, Award, 18 September 2009.
102
Charanne B.V., Construction Investments S.A.R.L. v. el Reino de España, SCC
Arb No 062/2012, Award, 21 January 2016.
106, 111
Chemtura Corporation v. Government of Canada, UNCITRAL, Award, 2
August 2010.
241
Chevron Corporation and Texaco Petroleum Company v. The Republic of
Ecuador, PCA Case No. 34877, Partial Award on the Merits,
30 March 2010.
90
CME Czech Republic B.V. v. The Czech Republic, UNCITRAL, Partial Award,
13 September 2001.
249
CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case
No. ARB/01/8, Decision on Jurisdiction, 17 July 2003.
77, 115, 122, 200


xxiv LIST OF DECISIONS

Compañia del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, ICSID
Case No. ARB/96/1, Award, 17 February 2000.
221
Continental Casualty Company v. Argentine Republic, ICSID Case No. ARB/
03/9, Award, 5 September 2008.
111
Corn Products International, Inc. v. United Mexican States, ICSID Case No.
ARB(AF)/04/01 (NAFTA), Separate Opinion of Andreas Lowenfeld, 15
January 2008.
193
EDF International S.A., SAUR International, S.A. León Participaciones
Argentinas S.A. v. Argentine Republic, ICSID Case No. ARB/03/23, Decision,
25 June 2008.
63
Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom
of Spain, ICSID Case No. ARB/13/36, Award, 4 May 2017.
55
Emilio Agustín Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7,
Decision of the Tribunal on Objections to Jurisdiction, 25 January 2000. 99
Enron Corporation v. Argentine Republic, ICSID Case No. ARB/01/3, Decision
on Jurisdiction, 2 August 2004.
51
Eureko B.V. v. Republic of Poland, Ad Hoc Tribunal, UNCITRAL, IIC 98,
Partial Award and Dissenting Opinion, 19 August 2005.
114
Generation Ukraine Inc. v. Ukraine, ICSID Case No. ARB/00/9, Award, 16
September 2003.
106
Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB
(AF)/09/1, Award, 22 September 2014.
123–124
HICEE v. Slovak Republic, UNCITRAL, PCA Case No. 2009-11, Partial
Award, 23 May 2011.
54
International Thunderbird Gaming Corporation v. United Mexican States,
2006. NAFTA Arbitration, Award, 26 January 2006.
112
Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and
S.C. Multipack S.R.L. v. Romania, ICSID Case No. ARB/05/20, Award, 11
December 2013.
252
LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v.
Republica Argentina, ICSID Case No ARB/02/1, Decision on Liability, 3
October 2006.
106, 112, 119
LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v.
Argentine Republic, ICSID Case No. ARB/02/1, Award, 25 July 2007.
111–112, 119
The Loewen Group, Inc. and Raymond L. Loewen v. United States of America,
ICSID Case No. ARB(AF)/98/3, Award, 26 June 2003.
87, 109
Malaysian Historical Salvors, SDN, BHD v. Malaysia, ICSID Case No. ARB/
05/10, Award on Jurisdiction, 17 May 2007.
52


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