Investor State Arbitration


June 9, 2015

The Centre for International Governance Innovation (CIGI), through its International Law Research Program, has launched a new project aimed at studying an emerging policy issue of contemporary international investment protection law: should a corporation from one developed democracy have the legal right to sue the government of another developed democracy? In other words, is investor state arbitration (ISA) suitable between developed democratic countries?

Investor-State Arbitration Overview

ISA, also known as investor-state dispute settlement, is a treaty-based remedy, grounded in public international law, for resolving disputes between a private investor and a foreign government. The great majority of ISA provisions are found in treaties between developed and developing countries, but since the adoption of NAFTA in 1994 and the International Energy Charter some ISA provisions have also been adopted between developed democracies.

According to the United Nations Conference on Trade and Development, there were 3,268 international investment agreements and 608 known investor state dispute settlement claims as of February 2015. Under NAFTA, for example, Canada has been sued 31 times and the United States has been sued 25 times. A major case that highlights the growing controversy over ISA is Philip Morris Asia Limited v The Commonwealth of Australia. Another controversial case involves the arbitral claim by the Swedish Vattenfall company against Germany, following the decision to close nuclear reactors in Germany.

CIGI Experts

The following roster of international investment and trade law experts are Senior Fellows and members of this research project:

Armand de Mestral, Senior Fellow and Project Leader

Armand de Mestral is professor emeritus and Jean Monnet Chair in the Law of International Economic Integration at McGill University. His current research interest is the law of international economic integration. He has served on World Trade Organization and North American Free Trade Agreement dispute settlements and public and private arbitration tribunals. He was made Member of the Order of Canada in December 2007.

Marc Bungenberg, Senior Fellow
Marc Bugenberg is director of the Europa-Institut and a professor of public law, European law and public international law at Saarland University, permanent visiting professor at the University of Lausanne and member of the scientific advisory board to the International Investment Law Centre in Cologne. He is a member of several associations, including the International Law Association, German Association for International Law and the German Society of International Law.

Charles-Emmanuel Cȏté, Senior Fellow
Charles-Emmanuel Cȏté is vice dean for Academic Affairs and Continuing Education, as well as full professor in the Faculty of Law at Laval University. He teaches courses on public international law, constitutional law and World Trade Organization law. He is also director of the Summer School on International Investment Law, led a seminar on international development law, and is co-director of the Centre for International and Transnational Law at Laval University.

Hugo Perezcano Díaz, Senior Fellow

Hugo Perezcano Díaz is an independent consultant and in a private law practice. He worked for the Mexican government for nearly 20 years. He was head of Mexico’s Trade Remedy Authority, within the Ministry of Economy, and was lead legal counsel for the country’s Ministry of Trade and Industrial Promotion, which included work on free trade, dispute settlements, investment and international agreements entered into by Mexico.

David A. Gantz, Senior Fellow

David A. Gantz is the Samuel M. Fegtly Professor of Law and co-director of the International Trade Law Program at the University of Arizona’s James E. Rogers College of Law. He teaches courses on international environmental law, international trade law, international investment law and regional trade agreements. Previously, David was a visiting professor of law at American University and George Washington University Law School, a lecturer in law at the University of Pennsylvania and visiting assistant professor of law at the University of Costa Rica. David has also taught at Georgetown University, Loyola University, the University of San Diego Law School and Universidad Rafael Landívar.

Shotaro Hamamoto, Senior Fellow

Shotaro is a professor at Kyoto University’s Graduate School of Law. Previously, he was a guest professor at the University of Paris I (Panthéon-Sorbonne) and at Sciences Po de Paris and professor at Kobe University. Shotaro has also been a research fellow at the Japan Society for the Promotion of Science. He is a member of the American Society of International Law, the Japanese Society of International Law, the Japanese Association of World Law and the International Law Association.

Younsik Kim, Senior Fellow

Younsik is an assistant professor of constitutional law at Sungshin Women’s University in Korea. Previously, he was a senior researcher at the Korean Constitutional Research Institute at the Constitutional Court of Korea. He holds a Ph.D. in law from the University of Edinburgh, where his thesis focused on the relationship between investor state arbitration and national constitutional law.

Howard Mann, Senior Fellow

Howard Mann is the senior international law advisor to the International Institute for Sustainable Development (IISD). His work covers investment treaties and contracts, domestic and international law on investment, environmental issues, resource development, the enhancement of social and economic development, and respect for human rights. Through his work at IISD, he has pioneered new thinking on international investment law and policy and advised more than 70 governments on these matters.

 Csongor István Nagy, Senior Fellow

Csongor István Nagy is associate professor and head of the Private International Law Department at the University of Szeged and Momentum senior research fellow at the Hungarian Academy of Sciences, where he heads the Federal Markets Momentum Research Group. He is visiting associate professor at Sapientia University in Romania and visiting professor at the Riga Graduate School of Law. He has written more than 130 publications in Hungarian, English, French, German, Romanian and (in translation) Spanish, and has lectured, in various languages, at dozens of international conferences. 

Luke Nottage, Senior Fellow

Luke Nottage is a professor of comparative and transnational business law, and co-director of the Australian Network for Japanese Law at the University of Sydney. He is associate director of the Centre for Asian and Pacific Law at the University of Sydney, and coordinator of the Comparative and Global Law Program for the Sydney Centre for International Law. Luke is also a director of Japanese Law Links Pty Ltd. His major research project for 2014–16 is an ARC Discovery Project on foreign investment dispute resolution.

Ucheora Onwuamaegbu, Senior Fellow

Ucheora Onwuamaegbu is a lawyer with 28 years of experience who provides consultancy services on various aspects of international law, with a strong focus on international investment law and arbitration.  For close to a decade, he was senior counsel at the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) in Washington, DC, administering disputes under treaties, national laws and contracts. Prior to ICSID, he worked for more than six years with the United Nations Compensation Commission (UNCC) in Geneva, Switzerland, a unique post-conflict claims program. 

August Reinisch, Senior Fellow

August Reinisch is professor and vice dean of the Law Faculty at the University of Vienna. He holds master’s degrees in philosophy and in law, as well as a doctorate in law from the University of Vienna and an LL.M. from New York University Law School. He is widely published on international law, with a recent focus on investment law and the law of international organizations. He is a member of the ICSID Panels of Conciliators and of Arbitrators and a member of the Permanent Court of Arbitration in The Hague.

David Schneiderman, Senior Fellow

David Schneiderman is a professor in the Faculty of Law at the University of Toronto. He was called to the Bar of British Columbia in 1984, where he practised law and then served as research director of the Canadian Civil Liberties Association in Toronto from 1986 to 1989. He was Executive Director of the Centre for Constitutional Studies, an interdisciplinary research institute, at the University of Alberta from 1989 to 1999. He has authored numerous articles on Canadian federalism, the Charter of Rights, Canadian constitutional history, and constitutionalism and globalization.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.