investment treaties

Anthea Roberts masterclass: the investment treaty system - claims and controversies

Since the 1990s, an investment treaty system has emerged that is based on thousands of bilateral investment treaties and free trade agreements and hundreds of investor-state arbitrations.

While investment treaties used to be an obscure part of the international legal framework, they are now taking on a more prominent role given the focus on mega-regional agreements like the TPP, TTIP and RCEP.

Recalibrating interpretive authority

Author/s (editor/s):

Roberts, Anthea

Publication year:

2014

Publication type:

Journal article

Find this publication at:
http://ccsi.columbia.edu/files/2014/01/FDI_No113.pdf

This paper is also available in Mandarin via the Columbia website.

Cite the publication as

Roberts, Anthea. 2014. ‘Recalibrating interpretative authority’, Columbia FDI Perspectives, Vol. 113.

The next battleground: standards of review in investment treaty arbitration

Author/s (editor/s):

Roberts, Anthea

Publication year:

2011

Publication type:

Journal article

Find this publication at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2186208

We are witnessing growing calls by States, academics and NGOs for investment arbitral tribunals to recognize that they are engaged in a form of international judicial review and thus should adopt appropriate levels of deference when reviewing the legislative, executive and judicial acts of respondent States. Some draw on domestic public law comparisons, arguing that tribunals should adopt deferential standards of review when adjudicating upon governmental conduct. Others rely on international comparisons, invoking notions such as the margin of appreciation doctrine that some international courts adopt when reviewing State actions for conformity with international obligations. Whether and when investment treaty tribunals should adopt deferential standards of review represents the next battleground for those who conceptualize investment treaty arbitration as a form of global governance.

Cite the publication as

Roberts, Anthea. 2011. ‘The next battleground: standards of review in investment treaty arbitration’, International Council for Commercial Arbitration Congress Series, Vol 16:170-183.

Subsequent agreements and practice: the battle over interpretive power

Author/s (editor/s):

Roberts, Anthea

Publication year:

2013

Publication type:

Book chapter

Find this publication at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2315134

Subsequent agreements and practices are important mechanisms by which treaty parties can assert their continued interpretive authority over treaties without having to amend those treaties. However, when states delegate power to international courts and tribunals to resolve disputes, they also delegate some interpretive authority to these judicial bodies. This delegation is typically implied and partial rather than express and exclusive. As a result, the claim of treaty parties to interpretive authority over their treaties exists in tension with the claim of international courts and tribunals to interpretive authority over the same treaties.

In this Chapter, I argue that fights over the relevance of subsequent agreements and practice of the treaty parties before international courts and tribunals should be understood as representing a battle over interpretive power. On one level, this battle results in a dialogue between treaty parties and international courts and tribunals over the proper interpretation of those treaties. On another level, it represents a power play between two rival sources of interpretive authority that exist in tension with one another. This battle over interpretive power plays out differently before different types of courts, such as inter-state and transnational courts and tribunals.

Cite the publication as

Roberts, Anthea. 2013. ‘Subsequent agreements and practice: the battle over interpretive power,’ in George Nolte (ed.) Treaties and Subsequent Practice, Oxford: Oxford University Press.

Judicial review of investment treaty awards: BG Group v. Argentina

Author/s (editor/s):

Roberts, Anthea
Trahanas, Christina

Publication year:

2014

Publication type:

Journal article

Find this publication at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2767889

On March 5, 2014, the United States Supreme Court, in BG Group PLC v. Republic of Argentina,1 ruled for the first time on the standard of review U.S. courts should apply when examining investment treaty awards to determine whether an arbitral tribunal exceeded its powers. In a 7-2 split, with a concurrence, the majority adopted a highly deferential standard of review based on interpretive presumptions developed under U.S. domestic law for arbitration agreements found in ordinary contracts between private parties. The dissent, by contrast, opted for a de novo standard of review based on the recognition that states have delegated an important function of policing arbitral decisions on jurisdiction to national courts and that particular care is required when this function is exercised in investor-state disputes founded on interstate treaties. The dissent’s approach is preferable because it appreciates the public international law basis and public law nature of investment treaty arbitration, which differs in important ways from contractual arbitration between private parties.

Cite the publication as

Roberts, Anthea and Christina Trahanas. 2014. ‘ Judicial review of investment treaty awards: BG Group v. Argentina,’ American Journal of International Law, Vol 108(4):750-762.

Triangular treaties: the extent and limits of investment treaty rights

Author/s (editor/s):

Roberts, Anthea

Publication year:

2015

Publication type:

Journal article

Find this publication at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2767867

Investment treaties should be reconceptualized as triangular treaties, i.e., agreements between sovereign states that create enforceable rights for investors as non-sovereign, third-party beneficiaries. State A (the host state) agrees to provide certain protections to investors coming from State B (the home state) and vice versa. If the investor considers that these protections have been violated, investment treaties also grant the investor permission to bring an arbitral claim directly against the host state. As a result, the agreement is entered into by the home and host state (collectively, the treaty parties) but the protections are created for the benefit of, and are typically enforced by, an investor from one state against the other state.

Investment treaties expressly protect investors against certain unilateral actions by host states, such as expropriation without compensation (first-order questions). It is unclear, however, whether they also protect investors against unilateral actions by home states (second-order questions) and/or collective actions by the treaty parties (third-order questions). These questions are becoming important in a range of existing and emerging controversies, including: whether a home state can settle an investor’s claim without the investor’s consent; whether a host state can rely on inter-state countermeasures against a home state as a defense in an investor-state dispute; and whether the treaty parties can jointly terminate an investment treaty with immediate effect?

To answer these questions, I propose a new triangular framework that draws on principles from public international law, third-party beneficiary doctrines, and public law in a way that captures the unique, hybrid nature of investment treaties. Investment treaties are international agreements between states (hence the need for a public international law premise), but they depart from typical treaties by granting investors enforceable rights instead of simply regulating state-to-state rights and obligations (hence the need for a third-party beneficiary paradigm). Unlike traditional contract law models, however, they involve an agreement by sovereign parties to bestow rights on a non-sovereign entity (hence the need for a public law qualification).

This triangular approach focuses our attention on the interests and intentions of the treaty parties, rather than the interests or expectations of investors. States are not benevolent actors; rather, they grant enforceable rights to investors as third parties in order to effectuate their own goals. Recognizing this requires us to rethink traditional accounts of the two main goals of investment treaties: investor protection and the depoliticization of investment disputes. Drawing on this triangular framework and these revised purposes, I propose default rules for resolving a range of controversies about what rights have been given to investors and what powers have been retained by states, focusing in particular on the under-theorized second- and third-order relationships and the three unresolved controversies identified above.

Cite the publication as

Roberts, Anthea. 2015. ‘Triangular treaties: the extent and limits of investment treaty rights’. Harvard International Law Journal, Vol 56(2):353-417.

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