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Investor Responsibility as Familiar Frontier

  • Jackson Shaw Kern (a1)
Extract

This essay suggests that amidst the various criticisms of investor-state arbitration, the most potent is the present inadequacy of this mechanism to establish a reciprocal responsibility of foreign investors. The founders of the modern era of international investment arbitration never intended to build a one-way street. In this sense, to seek a regime of investor responsibility may not be to reach toward a new frontier so much as to return to one that is familiar, though underexplored.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 See, e.g., Philip Morris Asia v. The Commonwealth of Austl., PCA Case No. 2012-12, Award on Jurisdiction and Admissibility para. 554 (Dec. 17, 2015).

5 There is evidence that the ICSID drafters considered the possibility of arbitral jurisdiction originating from a host state's standing offer as in its municipal investment laws. See Exec. Dir. of the Int'l Bank for Reconstruction & Dev., supra note 3, at para. 24.

8 In the words of one observer, “[t]he language referring to the national's compliance with a host state demand for arbitration quickly disappeared from the provision.” Kenneth Vandevelde, Bilateral Investment Treaties: History, Policy and Interpretation 458 (2010). He seems to mean that such language did not feature in any future Dutch (or other) treaties. In any event, this treaty was terminated, and replaced in 1994 by another agreement containing the more typical arbitration provision in favor of investors alone. See Agreement Between the Government of the Kingdom of the Netherlands and the Government of the Republic of Indonesia on Promotion and Protection of Investment art. 9, Apr. 6, 1994 (“the dispute shall, at the request of the national concerned, be submitted … to international arbitration”) (emphasis added). Indonesia has since terminated this agreement. There is no known evidence that either state ever invoked the language requiring an investor's compliance with a host state demand for arbitration.

9 See Urbaser v. Arg., ICISD Case No. ARB/07/26, Award (Dec. 8, 2016).

10 Id. at para. 1120.

11 Id. at para. 1123.

12 Id.

13 Id.

14 Id. at paras. 1132-33.

15 Id. at paras. 1143-55, 1182-1221.

16 For instances in which the investor has voluntarily consented to the arbitration of an environmental counterclaim by the host state, see, e.g., Perenco Ecuador. v. Ecuador, ICSID Case No. ARB/08/6, Interim Decision on the Environmental Counterclaim (Aug. 11, 2015) and Burlington Resources v. Ecuador, ICSID Case No. ARB/08/5, Decision on Counterclaims paras. 60-62 (Feb. 7, 2017).

17 See Jose Daniel Amado et al., Arbitrating the Conduct of International Investors (2018). For a summary explication of the models in table format, see id. at 68-69. For textual tools to assist in their implementation, see id. at 172-90.

18 Id. at 19-24. For other reform alternatives, see Sergio Puig & Gregory Shaffer, Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, 112 AJIL 361 (2018).

19 Amado et al., supra note 17, at 42-54.

20 Id. at 55-65.

21 Id. at 66-67.

22 Id.

23 Id. at 82-92.

24 Id. at 93-97.

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  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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