After seven years of negotiations, the European Union (EU) and Canada signed the Comprehensive Economic and Trade Agreement (CETA) on 30 October 2016. One innovative yet controversial aspect of CETA is the establishment of an international court to resolve investor-State disputes under the Agreement. As a result of demands by Belgium’s regional Walloon government, which previously threatened to block the Agreement, the introduction of this court has been deferred until the Court of Justice of the EU determines its compatibility with EU law. Nevertheless, CETA marks the first time that
A Macanese investor, Sanum Investments Ltd (“Sanum“), has successfully appealed a Singapore High Court decision on a tribunal’s jurisdiction to determine Sanum’s claims under the bilateral investment treaty (“BIT“) between the People’s Republic of China (“China“) and the Lao People’s Democratic Republic (“Laos“). The Court of Appeal’s decision in Sanum Investments Ltd v Government of the Lao People’s Democratic Republic  SGCA 57, which was handed down on 29 September 2016, is discussed below. Background While Macau was under Portuguese rule, the China-Portugal Joint Declaration (“Declaration“) was signed in 1987,
On 8 September 2016, the President of Romania agreed to submit to the Romanian Parliament draft legislation approving termination of 22 bilateral investment treaties that Romania concluded with other EU Member States (“intra-EU BITs”). The draft legislation had been initiated on 10 August 2016 by the Romanian Government in an expedited legislative procedure. The explanatory note to the draft legislation quotes the European Commission’s view that intra-EU BITs are incompatible with EU law and refers to the infringement proceedings initiated on 18 June 2015 against five EU Member States, including Romania, requesting them
On 29 February 2016, a revised text of the Canada-EU Comprehensive Economic and Trade Agreement (“CETA”) was released. Importantly, Canada and the EU have agreed to a number of substantive changes to the CETA’s Investment Chapter, including: Stronger right to regulate: the EU and Canada fully preserve their right to regulate to achieve legitimate policy objectives, including protection of public health, safety, environment or public morals; Narrowly prescribed standards of investment protection: a closed list of measures that could give rise to a violation of the fair and equitable treatment
On 25 February 2016, Poland’s State Treasury announced its intention to terminate its Bilateral Investment Treaties (“BITs”). Poland currently has around 60 BITs in force, all of them signed between 1987 and 1998. Poland concluded BITs with almost every EU Member State (“intra-EU BITs”). It remains, however, the only EU Member State that is not a party to the ICSID Convention. The State Treasury indicated its intention to terminate all 60 BITs. Shortly thereafter a new announcement recommended that the Polish Government take the step of terminating intra-EU BITs only.
On December 28, 2015, the Government of India released the text for its revised model Bilateral Investment Treaty (BIT). In this release, the Government of India also announced that the Department of Economic Affairs will be leading all negotiations on BITs and investment chapters of trade agreements to ensure continuity between trade and investment issues.
On 8 July 2015, the European Parliament voted favorably on a non-binding resolution that approves of the negotiation of the Transatlantic Trade and Investment Partnership (TTIP), an international trade and investment agreement between the United States and the European Union. Importantly, however, the resolution also supports the removal of investor-state arbitration from the TTIP. The European Parliament instead recommends to the European Commission negotiators framing the TTIP with their U.S. counterparts that investor-state arbitration be replaced with “a new system for resolving disputes between investors and states which is subject
In Government of the Lao People’s Democratic Republic (“Laos”) v Sanum Investments Ltd (“Sanum”)  SGHC 15, the Singapore High Court allowed an appeal under section 10 of the Singapore International Arbitration Act (the “IAA”) to an UNCITRAL arbitral tribunal’s ruling on jurisdiction, finding that the bilateral investment treaty between the People’s Republic of China (“PRC”) and the Laos (the “BIT”) did not extend to the Macau Special Administrative Region of China (“Macau”). Sanum, a Macau-based entity, had invested in Laos’ gaming and hospitality industry through a joint venture with
The European Commission has announced new measures to make the negotiation of the Transatlantic Trade and Investment Partnership (“TTIP”) with the United States more transparent. This move comes after criticism of the opaqueness of the process. This increased transparency presents opportunities for businesses, both to plan for TTIP and, potentially, to seek to change it while it is still under negotiation. Background If and when it enters into force TTIP is set to have a significant impact on businesses and investors operating in the United States and the EU. TTIP
Germany has announced that it is opposing the inclusion of investor-state dispute settlement (ISDS) in the TTIP. Brigitte Zypries, a German junior Economy Minster, recently advised the German parliament that “special investment protection rules are not necessary” in the TTIP because “US investors in the European union have sufficient legal protection in the national courts.” This announcement will present another complication for TTIP investment negotiators, particularly as France has previously expressed its opposition to including ISDS in the TTIP. Germany’s announcement appears to represent a stark reversal of its long-held
Indonesia has decided to terminate its Bilateral Investment Treaty (BIT) with the Netherlands, pursuant to a statement issued by the Dutch Embassy in Jakarta on 21 March 2014. The termination will be effective from 1 July 2015. However, because of a “sunset” provision in the BIT, its protections will extend for existing investments of investors until 1 July 2030. Indonesian Vice President Boediono confirmed Indonesia’s decision at a summit in The Hague on 23 March 2014. He pledged that “Indonesia will create a new bilateral investment agreement that will be
The United States Supreme Court (the “Court”), on 5 March 2014, issued its first decision in the area of international investment treaty arbitration. The Court, by a 7-2 majority, decided BG Group PLC. v. The Republic of Argentina in favor of BG Group. The Court effectively elected not to second-guess procedural rulings made by investment treaty tribunals. The Court reversed the U.S. Court of Appeals for the D.C. Circuit’s ruling that an UNCITRAL tribunal lacked the authority to decide a US$185 million dispute, and instead upheld the tribunal’s award in
On 1 November 2013, the South African government published a draft Promotion and Protection of Investment Bill, which is intended to replace the existing bilateral investment treaties (BITs) that currently govern investment disputes in South Africa and provide a uniform legal framework to govern all investments in the country. The draft bill follows the South African government’s review of its BITs in 2010, the majority of which were entered into with EU states in the post apartheid-era, and subsequent announcement of its plans to phase out these treaties. South Africa
Canada has ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Canada’s ratification of the ICSID Convention will enter into force on December 1, 2013, nearly seven years after Canada initially signed the Convention. Canada’s ratification should enhance the rights of investors under Canada’s many investment agreements. These include the North America Free Trade Agreement (NAFTA), Canada’s 24 Foreign Investment and Promotion Agreements, and the recently-completed Canada-EU Comprehensive Economic and Trade Agreement. Canada also is participating in the negotiation of the
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A notable feature of investment treaty arbitrations is that they nearly always concern issues relating to a State’s treatment of foreign investment and its exercise of public policy. Potential significant State liability may also arise pursuant to an award which goes against the State. Unlike ICSID arbitrations, the UNCITRAL Arbitration Rules do not make it a requirement that a public record is made of the dispute, which has led to criticism on the grounds that this is contrary to the principle of transparency – a principle which all State functions