Reshaping the Investor-State Dispute Settlement System

Journeys for the 21st Century

Series:

In Reshaping the Investor-State Dispute Settlement System: Journeys for the 21st Century, editors Jean E. Kalicki and Anna Joubin-Bret offer for the first time a broad compendium of practical suggestions for reform of the current system of resolving international investment treaty disputes. The increase in cases against States and their challenge to public policy measures has generated a strong debate, usually framed by complaints about a perceived lack of legitimacy, consistency and predictability. While some ideas have been proposed for improvement, there has never before been a book systematically focusing on constructive paths forward. This volume features 38 chapters by almost 50 leading contributors, all offering concrete proposals to improve the ISDS system for the 21st century.
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Biographical Note

Jean E. Kalicki is a Partner at Arnold & Porter, LLP in Washington and New York, and an Adjunct Professor at Georgetown University Law Center. She serves as arbitrator and counsel in investment and commercial disputes and on the boards and rosters of leading arbitral institutions.

Anna Joubin-Bret is an Attorney-at-law practicing in Paris. She serves as counsel, arbitrator, mediator and conciliator in international investment disputes and advises on investment policies and treaties. She is former Senior Legal Adviser for the United Nations Conference on Trade and Development.

Review Quote

"...the reader will find here valuable keys for a better understanding of the numerous criticisms brought against the Investor-State Dispute Settlement System."
-Adrien Foulatier, University of Paris-Ouest-Nanterre-La Défense

Table of contents

FOREWORD
by Meg Kinnear

INTRODUCTION
by Anna Joubin-Bret and Jean E. Kalicki

I. STRENGTHENING THE ROLE OF STATES: TREATY INTERPRETATION AND REVISING TREATY LANGUAGE

1. Delegating Interpretative Authority in Investment Treaties: The Case of Joint Administrative Commissions
by Anne van Aaken

2. Lessons from International Uniform Law
by Joshua Karton

3. Which Is to Be the Master? Extra-Arbitral Interpretative Procedures for IIAs
by Michael Ewing-Chow and Junianto James Losari

4. Keeping Interpretation in Investment Treaty Arbitration ‘on Track’: The Role of State Parties
by Tomoko Ishikawa

5. Travaux Préparatoires and the Legitimacy of Investor-State Arbitration
by Baiju S. Vasani and Anastasiya Ugale

6. Reform of Investor-State Dispute Settlement: the U.S. Experience
by Karen L. Kizer and Jeremy K. Sharpe

7. Rethinking Rights and Responsibilities in Investor-State Dispute Settlement: Some Model International Investment Agreement Provisions
by Elizabeth Boomer

8. Examining the Formative Aspect of Investment Treaty Commitments: Lessons from Commercial Law and Trade Law
by Locknie Hsu

9. Limiting Investor Access to Investment Arbitration: A Solution without a Problem?
by Liang-Ying Tan and Amal Bouchenaki

10. Back to the Future: Contemplating a Return to the Exhaustion Rule
by Daniel Kalderimis

11. ISDS Growing Pains and Responsible Adulthood
by Silvia Constain

II. STRUCTURAL REFORM: STATE-STATE PROCEDURES, A STANDING INVESTMENT COURT, OR AN APPELLATE MECHANISM

12. In Search of a Model for the Reform of International Investment Dispute Resolution: An Analysis of Existing International and Regional Dispute Settlement Mechanisms
by Nicolette Butler

13. The Abiding Role of State-State Engagement in the Resolution of Investor-State Disputes
by Theodore R. Posner and Marguerite C. Walter

14. Permanent Investment Tribunals: The Momentum is Building Up
by Omar E. García-Bolívar

15. The Challenges of Creating a Standing International Investment Court
by Eduardo Zuleta

16. Making Impossible Investor-State Reform Possible
by Luis González García

17. Appellate Mechanisms for Investment Arbitration: Worth a Second Look for the Trans-Pacific Partnership and the Proposed EU-U.S. FTA?
by Barton Legum

18. Appellate Review in Investor State Arbitration
by Eun Young Park

19. Reform of the Investor-State Arbitration Regime: The Appeal Proposal
by Gabriel Bottini

20. Introduction of an Appellate Review Mechanism for International Investment Disputes: Expected Benefits and Remaining Tasks
by Jaemin Lee

21. Why ICSID Doesn’t Need an Appellate Procedure, and What to Do Instead
by Kristina Anđelić

22. Fragmentation and Harmonization in the ICSID Decision-Making Process
by Roberto Castro de Figueiredo

23. Initial Hiccups or More? Efforts of the EU to Find Its Future Role in International Investment Law
by Jan Asmus Bischoff

24. The Emperor Has No Clothes: A Critique of the Debate Over Reform of the ISDS System
by J.J. Saulino and Josh Kallmer

III. REFORM FROM WITHIN: CHANGING INSTITUTIONAL RULES AND ENCOURAGING INNOVATIONS BY TRIBUNALS

25. Advancing Reform at ICSID
by Antonio R. Parra

26. UN Commission on International Trade Law and Multilateral Rule-making: Consensus, Sovereignty and the Role of International Organizations in the Preparation of the UNCITRAL Rules on Transparency
by Julia Salasky and Corinne Montineri

27. Inter-Governmental Evaluation of Investor-State Dispute Settlement: Recent Work at the OECD-Hosted Freedom of Investment Roundtable
by David Gaukrodger and Kathryn Gordon

28. The Sixth Path: Reforming Investment Law from Within
by Stephan W. Schill

29. Achieving a Faster ICSID
by Adam Raviv

30. Streamlining the ICSID Process: New Statistical Insights and Comparative Lessons from Other Institutions
by Joongi Kim

31. Interim Costs Orders: The Tribunal’s Tool to Encourage Procedural Economy
by Jeffrey Sullivan and David Ingle

32. Costs in Investment Treaty Arbitration: The Case for Reform
by Matthew Hodgson

33. Distinguishing Investors from Exporters under Investment Treaties
by Mark Feldman

34. ICSID Treaty Counterclaims: Case Law and Treaty Evolution
by José Antonio Rivas

35. ICSID Annulment Standards: Who Has Finally Won the Reisman v. Broches Debate of Two Decades Ago?
by Nikolaos Tsolakidis

36. ICSID Annulment Reform: Are We Looking at the Right Problem?
by Mallory Silberman

37. Addressing and Redressing Errors in ICSID Arbitration
by Diego Brian Gosis

38. Do We Need Investment Arbitration?
by Christoph Schreuer

CONSOLIDATED BIBLIOGRAPHY

INDEX

Readership

All interested in international arbitration, investment policy and reform of the investor-State dispute settlement system, including academics, arbitrators, practitioner, in-house counsel, NGOs, public officials, policymakers and treaty negotiators.

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