Issues in International Trade: A Legal Overview of Investor-State Dispute Settlement
Released: 2015-04-16T00:00:00

Investor-state dispute settlement (ISDS) provisions in international investment agreements (IIA) enable an aggrieved investor, with an investment located in the territory of a foreign host government, to bring a claim against that government for breach of an investment agreement before an international arbitration panel. The United States has negotiated a number of bilateral investment treaties (BIT) and free trade agreements (FTA) that contain ISDS arbitration procedures for resolving investors' claims that a host country has violated substantive obligations intended to protect foreign investors and investments from discriminatory, unfair, or arbitrary treatment by the host government.

Although an investor submitting a claim under a U.S. IIA must typically consent to the mandatory procedural rules contained therein, the parties to an investment dispute generally may jointly choose the forum as well as many of the procedural rules under which the tribunal conducts the arbitration. The primary forum for investment arbitration is the International Centre for Settlement of Investment Disputes (ICSID), which is affiliated with the World Bank. The Centre was established by the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention). Under most IIAs, the investor and respondent country may agree that the tribunal will conduct the proceedings according to certain procedural rules, such as the ICSID Rules of Procedure for Arbitration Proceedings; the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules; or the ICSID Additional Facility Rules for disputes in which either the investor's home country or the host country, but not both, is a member of ICSID.

Ongoing trade negotiations among the United States and several Pacific Rim countries regarding the proposed Trans Pacific Partnership (TPP) agreement —and between the United States and the European Union with respect to the proposed Transatlantic Trade and Investment Partnership (T-TIP) agreement —have rekindled debate over the value of including ISDS provisions in BITs and trade agreements. Some commentators have argued that ISDS arbitration procedures, along with substantive protections for investors and investments in IIAs, facilitate foreign direct investment (FDI) by depoliticizing investment disputes and providing stability and predictability to investors seeking to conduct business in a foreign nation. Other observers have raised questions about the extent to which ISDS may affect a government's ability to regulate in the public interest.

Scope of This Report

This report focuses on the legal implications of ISDS provisions in U.S. IIAs. Among other things, it discusses who may bring a claim under an IIA; how arbitrators conduct such proceedings; the remedies available to the disputing parties; and how tribunals have interpreted certain substantive obligations contained in U.S. IIAs. Furthermore, the report will discuss the interplay between IIAs containing ISDS provisions, investment arbitration decisions, and domestic law within the United States, as well as recognition and enforcement of arbitral awards against countries in U.S. courts.

Notably, the ISDS provisions within one IIA may differ from the ISDS provisions in other agreements. This report will focus on the provisions contained in the investment chapter of NAFTA because nearly all ISDS cases brought by investors against the United States have been brought under that agreement. It will also focus on the investment provisions contained in the United States' 2012 Model BIT, which is the document that U.S. officials use to negotiate U.S. BITs, and the Korea-U.S. free trade agreement (KORUS), which has the most recent congressionally approved FTA investment chapter, to show the types of provisions U.S. diplomats may seek to include in the TPP and T-TIP.

Role of Congress in ISDS Provisions

Congress plays an important role in the approval and implementation of U.S. IIAs, and, therefore, in the approval of ISDS provisions within those agreements. BITs are ratified through the treaty process established in the Constitution —that is, the Senate must provide its advice and consent to ratification of any agreement reached between the executive branch and negotiators from a foreign country. Furthermore, FTAs, which typically will contain an investment chapter, are often approved as congressional-executive agreements. Such agreements require approval from both houses of Congress prior to being signed into law by the President. Beyond voting on the approval of a negotiated agreement between the U.S. and foreign states, Congress may seek to influence the negotiating objectives of the executive branch through statute, by informal agreements with the executive branch, and through the traditional oversight powers enjoyed by the legislative branch.

Jurisdictional Issues in ISDS Cases

To hear and decide an ISDS case, a tribunal must have jurisdiction over the dispute between the investor and the respondent state. Although several requirements in IIAs could be considered "jurisdictional," this section focuses on the requirement that the claimant qualify as an "investor" with an "investment" in the respondent host country, as U.S. IIAs define these terms. This section also analyzes whether, and, if so, under what circumstances, investment agreements require a claimant to exhaust available administrative and judicial remedies in the host country prior to bringing an ISDS claim against that country. In addition, this section examines ISDS provisions potentially relevant to the investor practices of "forum shopping" (e.g., pursuing an ISDS case after losing in the host country's domestic courts) and "treaty shopping" (e.g., reincorporating in another country to take advantage of favorable ISDS provisions in that country's IIAs).

Definitions of "Investor" and "Investment" in ISDS Provisions

The definitions of "investor" and "investment" in U.S. IIAs play a key role in clarifying the scope of a tribunal's jurisdiction by indicating "who" may bring an ISDS claim under a particular agreement. One NAFTA tribunal referred to these definitions as the "gateway leading to the dispute resolution provisions."

With respect to the definition of "investor," NAFTA limits the scope of investor-state arbitration by establishing that the dispute provisions apply only to "measures adopted or maintained by a Party relating to: (a) investors of another Party; [and] (b) investments of investors of another Party in the territory of the Party ..." NAFTA Articles 1116 and 1117 provide that in order to bring a claim, the claimant must be an "investor" from a nation that is a party to NAFTA, which the agreement defines as "a Party or state enterprise thereof, or a national or enterprise of such Party, that seeks to make, is making or has made an investment." Under this definition, an investor of a party can be an individual; a corporation or other enterprise; or a state-owned enterprise. Importantly, as numerous tribunals have pointed out, "in order to be an 'investor' ... one must make an investment in the territory of another NAFTA State, not in one's own."

The definition of "investment" in U.S. IIAs also affects the scope of a tribunal's jurisdiction. The Model BIT provides the following definition of an "investment":

"investment" means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:

(a) an enterprise;

(b) shares, stock, and other forms of equity participation in an enterprise;

(c) bonds, debentures, other debt instruments, and loans;

(d) futures, options, and other derivatives;

(e) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;

(f) intellectual property rights;

(g) licenses, authorizations, permits, and similar rights conferred pursuant to domestic law; and

(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges.

Notably, the 2012 Model BIT provides a non-exhaustive list of property interests that may constitute "investments." By contrast, NAFTA sets forth a more limited and closed list of property interests that may constitute "investments." Neither the 2012 Model BIT nor NAFTA's investment chapter considers goods exported by a foreign company into another NAFTA party's territory to be an "investment." In addition, it appears that, at least under NAFTA, the costs of meeting regulatory requirements of the host country to sell products in that country do not constitute an investment.

Exhaustion of Local Administrative and Judicial Remedies

Neither NAFTA nor the 2012 Model BIT requires exhaustion of local administrative or judicial remedies as a prerequisite to a tribunal's jurisdiction over an ISDS claim against a host country. However, at least under NAFTA, it appears that, as a matter of substantive law , an investor seeking to establish a violation of the minimum standard of treatment obligation based on "denial of justice" by a host country's judiciary must have first exhausted its judicial remedies (i.e., pursued all appeals) unless these remedies are not reasonably available. Tribunals have deemed this requirement to be an element of a "denial of justice" claim under NAFTA Article 1105 (minimum standard of treatment) rather than a jurisdictional prerequisite.

"Forum Shopping" and "Treaty Shopping"

An additional concern of some commentators is that foreign investors will engage in "forum shopping" and "treaty shopping" under ISDS provisions in IIAs. "Forum shopping" generally refers to a practice in which an investor first pursues compensation in either the host country's local courts or before an ISDS tribunal and, if the investor is unhappy with the outcome, then pursues compensation in the other forum. "Treaty shopping" generally refers to a practice in which an investor (typically, a multinational corporation) attempts to benefit from more favorable substantive and procedural rules in a particular IIA by acquiring, establishing, or using an existing subsidiary in order to bring an ISDS claim against a host country under that IIA.

With respect to "forum shopping," U.S. IIAs typically provide that an investor cannot seek local remedies in the form of monetary compensation after consenting to arbitration under the agreement. For example, under the 2012 Model BIT, an investor must, as a condition of pursuing a claim under the ISDS provisions, agree to waive "the right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach ..." except to the extent that the investor seeks interim injunctive relief during the pendency of the arbitration. However, this does not prevent an investor from seeking local remedies in the form of monetary compensation prior to bringing a dispute before an international investment arbitration tribunal.

With regard to "treaty shopping," U.S. IIAs typically contain a provision allowing the host country to deny the benefits of the treaty to an investor of another party (and the investor's investments) if (1) the investor of the other party is an enterprise; (2) non-party investors (i.e., investors from a country not party to the treaty), or investors of the denying party, own or control the enterprise; and (3) the enterprise has "no substantial business activities" in the territory of the other party. In a recent arbitration decision rendered under the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR) and the ICSID Arbitration Rules, the tribunal held that a party to the CAFTA-DR may deny benefits to investors and investments under this type of clause even after the investor's dispute arose, so long as such denial occurred prior to the expiration of the time limit for raising jurisdictional objections. KORUS contains language specifically requiring the denying party to the agreement to notify the investor prior to denying it benefits if practicable.

Procedural Issues in ISDS Cases

In addition to jurisdictional issues, ISDS proceedings have raised questions about the rules governing: (1) the independence and impartiality of arbitrators, including rules addressing their selection and disqualification; (2) the transparency of arbitral proceedings, including access to documents and hearings; (3) early dismissal of frivolous claims; and (4) participation of third parties as amicus curiae ("friends of the court"). This section addresses these questions, as well as whether investment arbitration decisions establish legally binding precedent and whether a party may appeal such decisions.

Selection and Disqualification of Arbitrators

Arbitration rules provide mechanisms to help ensure the independence and impartiality of the arbitrators that hear disputes between investors and states. The methods of selection and disqualification of arbitrators may differ depending on whether the arbitration is conducted under ICSID or UNCITRAL Arbitration Rules, NAFTA, or agreements based on the 2012 Model BIT. Furthermore, the parties may also contract to have the dispute governed by rules other than the ICSID and UNCITRAL Arbitration Rules.

The 2012 Model BIT and NAFTA contain nearly identical procedures for the appointment of arbitrators. The text from Article 1123 of NAFTA, which closely resembles the corresponding 2012 Model BIT provision, provides the following:

[U]nless the disputing parties otherwise agree, the Tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.

Therefore, typically, the tribunal will consist of three arbitrators. Both NAFTA and the 2012 Model BIT also provide that the Secretary-General of ICSID will be the appointing authority if the disputing parties cannot agree on a presiding arbitrator or if a party fails to appoint an arbitrator within a certain amount of time after the claim is submitted for arbitration. Under NAFTA, any arbitrator appointed by the Secretary-General must be chosen from a roster of potential arbitrators established by the parties to the agreement. Further, the appointed arbitrator should not be a national of the disputing parties. However, under the 2012 Model BIT, the Secretary-General decides whom to appoint as the parties do not establish a list of potential arbitrators.

ICSID and UNCITRAL Rules on Disqualification

Neither NAFTA nor the 2012 Model BIT addresses disqualification of arbitrators; however, the ICSID Arbitration Rules or the UNCITRAL Arbitration Rules address this issue. Under the UNCITRAL Arbitration Rules, "[a]ny arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence." Furthermore, arbitrators are required to disclose any reasons that may raise justifiable doubts as to their impartiality both prior to and, if such circumstances arise after the dispute has begun, during the proceedings. In order to disqualify an arbitrator, the challenging party must provide notice of the challenge promptly after the circumstance calling into question the arbitrator's qualifications arises. The notice must be provided to all other parties and all arbitrators on the panel. If all parties agree to the challenge, the arbitrator shall be replaced; if the parties do not agree, then the appointing authority, which under NAFTA and the 2012 Model BIT is the Secretary General of ICSID, shall make a decision on the challenge.

Under the ICSID Convention and ICSID Arbitration Rules, "a party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14." Article 14, in turn, requires arbitrators to be "persons of high moral character and recognized competence ... who may be relied upon to exercise independent judgment." Similar to the UNCITRAL Arbitration Rules, ICSID procedures require arbitrators to disclose to the disputing parties and the Secretary General any prior relationships with the disputing parties, and any other reason why a party may question the arbitrator's independence. A party to the dispute challenges the qualification of an arbitrator by submitting its concerns to the Secretary General; the arbitrator in question has the right to respond to such a submission. At that point, the remaining arbitrators vote on whether the arbitrator in question should be disqualified. If they are unable to reach a determination, or if a majority of arbitrators are challenged, the Chairman of the Administrative Council makes the ultimate decision on disqualification.

Tribunals' Interpretations of Arbitration Rules Concerning Disqualification

Grounds for removal vary from case to case and may appear inconsistent between cases on similar questions regarding an arbitrator's impartiality or independence. For example, while some panels have determined that an arbitrator's participation in a previous tribunal that found against a particular party is not grounds for disqualification, others have reached the opposite conclusion under similar factual circumstances, finding that an arbitrator's participation in a panel that found against the respondent-state on an issue involving similar facts was grounds for disqualification.

It appears that many challenges to an arbitrator's qualifications to sit on a tribunal arise from prior existing relationships between the arbitrators and the disputing parties. For example, one arbitrator, in 2013, was disqualified from Blue Bank v. Venezuela because the arbitrator in question was a partner at a law firm that was representing the claimant in a different ISDS proceeding against Venezuela that dealt with issues similar to the case he was set to decide. However, tribunals have also held that "the mere existence of some professional relationship with a party is not an automatic basis for disqualification of an arbitrator." In one case, the arbitrator in question advised the disputing parties that one of the partners in his law firm had worked for the claimant-company's predecessor on an unrelated tax issue but the panel did not find this relationship warranted disqualification.

However, prior relationships with disputing parties are not the only reason that an arbitrator can be disqualified. Arbitrators can also be removed from a panel if they have biases against the law in dispute or the specific subject at issue. One such example, involving a successful challenge, came when the United States, during a NAFTA arbitration conducted under the UNCITRAL Arbitration Rules, challenged the appointment of an arbitrator who had previously given a speech on the U.S. law at issue in the dispute. The arbitrator, in his speech, referred to the U.S. law in question as "harassment." The ICSID Secretary General, who was authorized to make the final determination on the issue as the appointing authority, informed the arbitrator that ICSID would be issuing an opinion upholding the challenge. In response, the arbitrator resigned and the ICSID did not issue a written opinion on the matter.

In cases where the qualification of an arbitrator has been challenged under the ICSID rules, tribunals have held that the requirement that an arbitrator be able to provide "independent judgment" means that the arbitrator must "be both independent and impartial." At least one tribunal has held that the analysis for independence and impartiality are separate questions. An analysis of independence requires examination of whether the arbitrator has a relationship with one of the disputing parties, while the impartiality of an arbitrator concerns whether he or she is biased toward one of the disputing parties. Therefore, despite differences in language, both the UNCITRAL and ICSID Arbitration Rules require arbitrator independence and impartiality.

Tribunals have differed in their interpretation of the ICSID Convention disqualification language "manifest lack of the qualities required." Some tribunals have interpreted this in a way that imposes a high burden of proof on the party attempting to disqualify an arbitrator. That tribunal noted that in order to show a "manifest lack" of impartiality, the party would have to show a clear or obvious inability for the arbitrator to judge impartially. In a similar vein, another panel provided that "the party challenging an arbitrator must establish facts, of a kind or character as reasonably to give rise to the inference that the person challenged clearly may not be relied upon to exercise independent judgment in the particular case where the challenge is made." On the other hand, other tribunals appear to have interpreted the provision to impose less of a burden on the challenging party. One tribunal stated "if the facts would lead to the raising of some reasonable doubt as to the impartiality of the arbitrator or member ... a challenge by either party would have to be upheld." This tribunal's use of a "reasonable doubt" standard appears to contradict other tribunals' requirement that a party "clearly" or "obviously" demonstrate that an arbitrator would be biased. However, even that tribunal held that the mere appearance of partiality is not enough to disqualify an arbitrator—nor is any mere speculation or inference.

Transparency of ISDS Proceedings

A common concern regarding ISDS relates to the level of transparency to which arbitration disputes are subject. Similar to the rest of the discussion involving ISDS, the level of public access to tribunal decisions depends on the IIA that the dispute is brought under, and the set of arbitration rules the tribunal follows when presiding over the dispute.

Commentators have noted that NAFTA contains some of the strongest transparency requirements among IIAs that have been entered into over the past decades. The United States, Canada, and Mexico released, through the Free Trade Commission, an interpretation of the NAFTA investment chapter. The interpretation provides:

Each Party agrees to make available to the public in a timely manner all documents submitted to, or issued by, a Chapter Eleven tribunal, subject to redaction of: (i) confidential business information; (ii) information which is privileged or otherwise protected from disclosure under the Party's domestic law; and (iii) information which the Party must withhold pursuant to the relevant arbitral rules, as applied.

Further, NAFTA hearings are often open to the public as the United States has agreed to allow such hearings to be open, subject to exceptions that protect confidential information. Accordingly, the public has some access to the oral and written submissions by the disputing parties, challenges to arbitrators, interim decisions of the tribunals, and awards under NAFTA. These documents are available on the U.S. Department of State website.

The 2012 Model BIT also contains provisions relating to transparency. Article 29 of the 2012 Model BIT, entitled Transparency of Arbitral Proceedings, provides that "pleadings, memorials, and briefs submitted to the tribunal," along with "orders, awards, and decisions of the tribunal" shall be made available to the public. Furthermore, amicus curiae submissions, submissions provided by non-disputing parties to the agreement, and transcripts of hearings may also be made publicly available. Finally, the 2012 Model BIT provides for hearings to be open to the public. All of these transparency provisions are subject to exceptions to protect confidential information, such as trade secrets or essential security interests.

Under the ICSID Arbitration Rules, the transparency provisions are less robust than what the United States has negotiated in recent IIAs, such as the KORUS and CAFTA-DR investment chapters. ICSID provides basic information on its website with regard to each dispute, including the fact that a dispute is being heard, the names of the arbitrators hearing the case, and whether the dispute is ongoing or completed. However, ICSID awards are only made publicly available if both disputing parties consent. Importantly, if the disputing parties do not consent to the publication of the full award decision, ICSID Arbitration Rules still provide for publication of "excerpts of the legal reasoning of the Tribunal." However, commentators have noted that "oral and written submissions of the disputing parties and their experts and witnesses ... almost always remain confidential." It is worth noting that if the United States enters into a dispute that is governed by specific transparency provisions set forth in an IIA, the IIA's transparency provisions would control even if the arbitration is conducted under the ICSID Arbitration Rules.

UNCITRAL amended its Arbitration Rules in 2013 by adding Rules on Transparency in Treaty-Based Investor-State Arbitration (Rules on Transparency). The Rules on Transparency will apply to all arbitrations conducted under treaties governed by UNCITRAL Arbitration Rules that were entered into after April 1, 2014, "unless the Parties to the treaty have agreed otherwise." In order to facilitate states to agree to follow these new transparency rules, states can sign the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, known as the Mauritius Convention on Transparency (Mauritius Convention). The Mauritius Convention opened for signature on March 17, 2015 and provides for the Rules on Transparency to apply to IIAs entered into by both parties prior to April 1, 2014 by stipulating that if both parties have signed the Mauritius Convention, they will be deemed to have agreed to apply the Rules on Transparency to such IIAs. The United States signed the Mauritius Convention on March 17, 2015, but the Senate has yet to ratify it and the Mauritius Convention has yet to enter into force.

The new UNCITRAL Rules on Transparency contain requirements similar to NAFTA and the 2012 Model BIT. The Rules on Transparency require that written statements of the disputing parties, written statements by non-disputing state parties to the treaty, amicus submissions, transcripts of hearings, orders, decisions, and awards be made available to the public. Hearings are also required to be open to the public under the new rules. Importantly, there are exceptions to the publication requirements for confidential information. Prior to the Rules on Transparency, UNCITRAL provided for hearings to be closed to the public, unless the parties agreed otherwise, and did not provide for publication of arbitral materials.

"Frivolous" Claims

A claim in an ISDS case might be considered "frivolous" when "it is clearly insufficient on its face ... and is presumably interposed for mere purposes of delay or to embarrass ..." Frivolous claims may present a concern in investment arbitration because, even if a host country wins an ISDS case, it may spend millions of dollars in costs and attorneys' fees on its defense. Thus, a tribunal should arguably dismiss frivolous claims at an early stage of the proceedings.

Recent U.S. IIAs contain provisions addressing dismissal of frivolous claims and the shifting of costs and attorneys' fees to parties that bring such claims. For example, the 2012 Model BIT sets forth an expedited procedure by which a tribunal may determine as a "preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made ..." The tribunal must assume the truth of the claimant's factual allegations in support of its claim, as set forth in its notice of arbitration or statement of claim, but may consider "any relevant facts not in dispute." The 2012 Model BIT states that the tribunal may award reasonable costs and attorneys' fees to the prevailing party after considering whether the claimant's claim or the respondent's objection was "frivolous." Two recent cases under U.S. IIAs that contain similar language to the 2012 Model BIT regarding "preliminary questions" (CAFTA-DR and the U.S.-Peru Trade Promotion Agreement) suggest that a tribunal may be reluctant to dismiss the investor's claims under these provisions at such an early stage of the proceedings.

Aside from provisions in IIAs, the ICSID and UNCITRAL Arbitration Rules contain certain provisions that may allow for early dismissal of frivolous claims. ICSID Rule 41(5) provides that, unless the parties otherwise agree to a different procedure, a party may raise a preliminary objection "no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal" that a claim is "manifestly without legal merit." The rule states that "[t]he Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection." The UNCITRAL Arbitration Rules do not specifically address frivolous claims but do provide the tribunal with broad authority to "conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties' dispute."

Furthermore, as discussed below, the ICSID and UNCITRAL Arbitration Rules leave tribunals with a large degree of discretion in apportioning costs and attorneys' fees, which may allow tribunals to require an investor bringing a frivolous claim to bear most or all of the costs of the arbitration. However, some commentators have argued that the current rules for disposing of frivolous claims are insufficient. They have proposed the creation of a diplomatic screening mechanism in which officials of the investor's home country and the respondent host country could agree to dismiss an investor's claim.

Amicus Curiae Submissions in an ISDS Arbitration

Similar to submissions of amicus briefs to the United States Supreme Court, ISDS arbitration tribunals may allow interested persons, who are not parties to the dispute, to present their views to the tribunal. The rules governing the submission of third-party statements vary depending on whether the arbitration is governed by the ICSID Arbitration Rules, the UNCITRAL Arbitration Rules, or some other arbitration provision. NAFTA is generally silent on amicus submissions but provides that NAFTA parties, even when they are not involved in the particular dispute in question, may "make submissions to a Tribunal on a question of interpretation of this Agreement," while the 2012 Model BIT provides that a non-disputing state that is a party to the treaty "may make oral and written submissions to the tribunal regarding interpretation" of such treaty. The 2012 Model BIT further provides that the presiding arbitration tribunal "shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party."

In contrast, KORUS provides more discretion to the tribunal regarding amicus curiae submissions. It states that, "[a]fter consulting the disputing parties, the tribunal may allow a party or entity that is not a disputing party to file a written amicus curiae submission with the tribunal regarding a matter within the scope of the dispute." It also provides a set of factors to be considered in determining whether to permit an amicus curiae filing including, the extent to which:

the submission would assist the tribunal in determining a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge, or insight that differs from that of the disputing parties; the submission would address a matter within the scope of the dispute; and the third party has a significant interest in the proceeding.

Further, KORUS requires the tribunal to ensure that the submission does not disrupt the proceeding or unduly burden or unfairly prejudice either disputing party, and that the disputing parties are given an opportunity to present their observations on the amicus curiae submission.

Under the ICSID and UNCITRAL Arbitration Rules, allowing submission of amicus briefs seems to be a relatively recent development. It appears that the first instance of an arbitration tribunal accepting amicus briefs during an investor-state arbitration occurred in 2001 in Methanex Corp. v. United States , which was a NAFTA dispute conducted under the UNCITRAL Arbitration Rules. In that case, the tribunal determined that it had the power to allow submission of third-party briefs pursuant to the tribunal's authority under Article 15(1) of the UNCITRAL Arbitration Rules to "conduct the arbitration in such manner as it considers appropriate." Since that case, there have been significant changes to both the ICSID and UNCITRAL Arbitration Rules to provide for third-party submissions.

The ICSID Arbitration Rules were amended in 2006 to permit submission of amicus briefs expressly. ICSID arbitration tribunals have interpreted the ICSID Arbitration Rules in a manner that requires a third-party to ask for leave to provide written statements for the tribunal's consideration. Pursuant to Rule 37, the tribunal must consult with the disputing parties prior to permitting the submission. However, notably, the disputing parties do not have a "veto" power – that is, the tribunal may allow third-party submissions over the objection of a party to the dispute. For example, in Biwater Gauff Ltd. v. United Republic of Tanzania , one of the first tribunals to consider Rule 37 granted permission to five amicus petitioners over the objection of the claimant, Biwater Gauff. When considering whether to grant the petition, the tribunal must consider if the non-party has a significant interest in the proceeding, if the submission would assist the panel in deciding factual or legal issues related to the proceeding, and if the submission would address an issue within the scope of the case. At least some tribunals have held a broad view with regard to the requirement that the submission be within the scope of the dispute at issue. Notably, under the ICSID Arbitration Rules, the grant of permission to provide amicus submissions does not permit the nonparty to attend closed hearings or get access to documents that have not been made publicly available.

The new UNCITRAL Rules on Transparency provisions on third-party submissions, discussed above, are similar to the ICSID rules. The UNCITRAL Rules on Transparency provide clear authority and procedural requirements for accepting written statements from third-parties and non-disputing states that are parties to the treaty in question. A third-party must apply to the tribunal to make a submission, the tribunal must consult with the disputing parties, and the tribunal must consider whether the submission would be able to assist the tribunal in making a determination on the dispute. A notable difference between the UNCITRAL Rules on Transparency and the ICSID Arbitration Rules is that the UNCITRAL Rules on Transparency require third-party submissions to be made public.

Whether Investment Arbitration Decisions Establish Legally Binding Precedent

When rendering decisions in ISDS cases, investment arbitration tribunals do not establish legally binding precedent. Thus, investment arbitration tribunals do not have to follow the decisions of prior tribunals in the way that, for example, U.S. federal courts must adhere to the decisions of the U.S. Supreme Court. However, arbitrators serving on ISDS tribunals have noted that a tribunal departing from a holding of a prior tribunal (particularly, in a case brought under the same IIA) may feel inclined to explain its reasoning in detail. As the NAFTA tribunal in the case of Glamis Gold v. United States wrote:

The fact that any particular tribunal need not live with the challenge of applying its reasoning in the case before it to a host of different future disputes (the challenge faced by standing adjudicative bodies) does not mean such a tribunal can ignore that challenge. A case-specific mandate is not license to ignore systemic implications. To the contrary, it arguably makes it all the more important that each tribunal renders its case-specific decision with sensitivity to the position of future tribunals and an awareness of other systemic implications.

Thus, the extent to which investment arbitration tribunals follow precedent remains within each tribunal's discretion. However, some commentators would argue that arbitrators should still take into account the holdings of prior tribunals. As the Glamis Gold tribunal put it, a NAFTA tribunal, "while recognizing that there is no precedential effect given to previous decisions, should communicate its reasons for departing from major trends present in previous decisions, if it chooses to do so." Other commentators argue that there may be some value in evaluating each case on its own merits without being tied to precedent.

Whether Investment Arbitration Decisions May Be Appealed

Currently, U.S. IIAs lack a mechanism under which a disputing party may appeal a decision of an investment arbitration tribunal. Under ICSID Arbitration Rules, a committee may be established to consider annulment of an award on five limited grounds. However, these committees are not supposed to serve as appellate bodies. In addition, in cases in which an investor seeks enforcement of the award in a national court against the host country, it is possible that the court might refuse to recognize or enforce the award, although U.S. law generally permits such refusal only in limited circumstances when, for example, an international treaty governs enforcement of an arbitral award.

The United Nations Conference on Trade and Development (UNCTAD), ICSID, and other commentators have suggested that establishing an international appellate system for ISDS arbitral decisions could improve the overall operation of investment agreements. For example, an appellate mechanism might bring some coherence to inconsistent tribunal decisions, resulting in greater certainty for investors and host countries regarding their rights and obligations under IIAs. However, to date, there does not appear to have been any concrete progress toward establishing such a body. Some observers have noted that including an appeals process could lead to additional delays and costs for disputing parties. In addition, some commentators have questioned whether a global appellate body would be able to reconcile inconsistent decisions based on numerous investment treaties that provide different substantive and procedural rights to investors.

While NAFTA does not mention an appeal process, the 2012 U.S. Model BIT provides that if "an appellate mechanism for reviewing awards rendered by investor-State dispute settlement tribunals is developed in the future under other institutional arrangements, the Parties shall consider whether awards rendered under Article 34 should be subject to that appellate mechanism." The Model BIT also provides that the parties should "strive to ensure" that any appellate process agreed to is transparent.

Interpretations of Substantive Investment Agreement Obligations by Arbitral Tribunals

In addition to establishing some of the procedural rules governing ISDS proceedings, IIAs also set forth substantive obligations that a host country has agreed to undertake with respect to foreign investors and investments within the country's territory. These obligations include (1) according foreign investors a "minimum standard of treatment" under customary international law; (2) expropriating an investment only in limited circumstances and upon payment of adequate compensation; and (3) refraining from discrimination against foreign party investors or investments as compared to domestic investors or investments (or non-party investors or investments).

This section discusses how tribunals deciding cases under U.S. IIAs have interpreted these obligations, which account for most of the claims brought against the United States under U.S. IIAs (see Table 1 ). Notably, U.S. IIAs typically contain other obligations for a host country such as limitations on trade-distorting performance requirements and rules regarding transfer of funds into and out of the host country. In addition, recent U.S. IIAs may also contain obligations pertaining to labor and the environment, as well as exceptions for prudential financial measures, taxation measures, and national security.

Minimum Standard of Treatment

The inclusion of a "minimum standard of treatment" (MST) obligation in IIAs is intended to establish a floor for the standard of treatment accorded by a host country to foreign investments. The MST generally requires "treatment in accordance with international law, including fair and equitable treatment and full protection and security." Scholars analyzing decisions regarding the MST under NAFTA have suggested that the MST may impose obligations on host countries similar to those imposed on the U.S. federal and/or state governments under the Procedural Due Process Clause, Substantive Due Process Clause, Ex Post Facto Law Clause, Equal Protection Clause, Contracts Clause, Administrative Procedure Act, and various constitutional rights confirmed in Supreme Court decisions.

NAFTA Free Trade Commission Interpretation of July 31, 2001

A series of early NAFTA tribunal awards in investment cases caused concerns that tribunals had too quickly found violations of the MST. To address these concerns, the NAFTA Free Trade Commission, which may act on behalf of the three NAFTA parties, issued a binding interpretation on July 31, 2001, under Article 2001 of NAFTA. The interpretation provided the following with regard to the MST:

1. Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party.

2. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.

3. A determination that there has been a breach of another provision of the NAFTA, or of a separate international agreement, does not establish that there has been a breach of Article 1105(1).

The interpretation sought to clarify and reaffirm that the host country's MST obligations depend on the content of customary international law, which, in this case, looks to how other countries have treated aliens in the past out of a sense of legal obligation ( opinio juris ). However, tribunals appear to disagree over what constitutes an authoritative source of customary international law, including whether prior arbitral awards or provisions of other investment treaties may represent authoritative sources. The 2012 Model BIT includes language similar to the NAFTA Free Trade Commission's interpretation.

Thus, despite attempts to clarify the MST obligation by state parties to IIAs and tribunals, its precise content remains unclear, even under NAFTA. For example, tribunals disagree over whether the customary international law standard remains "frozen in time" at the high threshold established in the 1926 case of Neer v. United Mexican States , or whether the standard has evolved over time. However, NAFTA tribunals seem to agree that to violate the MST, a host country does not necessarily have to act in bad faith. It also appears that violations of an investor's "legitimate expectations" regarding host country treatment of its investment may result in a breach of the MST only if the host country created the expectations to induce the investment and the investor relied on the host country's representations. Although NAFTA tribunals appear to be reluctant to find violations of the MST when a host country's regulations protect public health, they may issue inconsistent statements regarding whether it is appropriate to scrutinize the decisions of domestic regulatory agencies with expertise.

"Denial of Justice" Claims

Tribunals determining whether a host country's domestic court decision violates the MST may examine whether a "denial of justice" occurred in which the court's decision "shock[ed] or surprise[d]" the tribunal regarding the "judicial propriety" of the outcome. As noted above, in order to succeed on a claim alleging a MST violation due to a "denial of justice," an investor may have to demonstrate that it exhausted all "reasonably available" judicial remedies in the host country.

Direct and Indirect Expropriation

As noted above, U.S. IIAs protect a variety of property interests. For example, under the 2012 Model BIT, an "investment" may include an enterprise; stock; derivatives; construction contracts; or intellectual property rights. The 2012 Model BIT and other U.S. IIAs prohibit the expropriation of covered investments except: (1) for a public purpose; (2) in a non-discriminatory manner; (3) upon payment of prompt, adequate, and effective compensation; and (4) in accordance with due process of law and the MST. Direct expropriation of an investment occurs when the host country deprives the investor of the value of its investment by, for example, transferring title in the investment to the state. By contrast, an indirect expropriation occurs when the investor retains title to the investment but cannot make economic use of the investment for a significant period of time because, for example, of government regulations that substantially interfere with the investor's use of the investment.

As with tribunals' interpretations of the MST, some observers raised concerns about early NAFTA decisions interpreting the legal standard for indirect expropriation. For example, in Metalclad Corp. v. Mexico , the tribunal wrote that an indirect expropriation includes "not only open, deliberate and acknowledged takings of property, such as outright seizure or formal or obligatory transfer of title in favour of the host State, but also covert or incidental interference with the use of property which has the effect of depriving the owner, in whole or significant part, of the use or reasonably-to-be-expected economic benefit of property even if not necessarily to the obvious benefit of the host State." To address concerns raised by these decisions, the 2012 Model BIT contains an annex that specifically spells out the factors a tribunal must consider when determining whether an indirect expropriation has occurred. These factors mirror those in the U.S. Supreme Court decision in Penn Central , a case that determined the test for regulatory takings under the Fifth Amendment of the U.S. Constitution. The factors consist of:

(i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;

(ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and

(iii) the character of the government action.

An investor's reasonable expectations have played a key role in the outcome of arbitral decisions on expropriation. As with many of the NAFTA tribunal decisions involving the MST, for an indirect expropriation claim to succeed, an investor's reasonable investment-backed expectations must generally result from "targeted" promises made by the host state to the investor regarding treatment of its investment. However, when the law in a particular field is uncertain, the investor may have difficulty establishing that it had reasonable investment-backed expectations regarding regulation of its investment. In addition, when an investor enters a heavily regulated field (e.g., manufacture and sale of tobacco products), it may expect that its investment will be further regulated.

Recent U.S. IIAs have specifically provided that nondiscriminatory regulatory measures generally do not result in indirect expropriations. For example, the 2012 Model BIT states that:

Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations .

National Treatment and Most-Favored Nation Treatment

Nondiscrimination provisions are a common feature of international trade agreements. Generally, such provisions prohibit discrimination against foreign entities as compared to similarly situated domestic entities (national treatment) and proscribe discrimination against foreign entities as compared to similarly situated foreign entities of another country (most favored nation or "MFN" treatment). A measure of a host country (e.g., a law, regulation, or practice) may discriminate against a foreign investor or investment on its face ( de jure discrimination) or when applied to the investor or investment ( de facto discrimination). Some U.S. IIAs require that a host country provide the investor or investment with the better of national treatment or MFN treatment for the full life cycle of the investment.

To establish a national treatment violation under an IIA, one NAFTA tribunal has indicated that a claimant must show that the investors or investments "(i) were accorded treatment by the Respondent with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments; (ii) were in like circumstances with the identified domestic investors or investments; and (iii) received treatment less favourable than that accorded to the identified domestic investors or investments." Similarly, to prove a violation of MFN treatment, the claimant must establish the same criteria, except that "the applicable comparator in step (ii) above is a foreign (non-US based) investor or its investments."

As indicated above, a key element in establishing a violation of these nondiscrimination provisions involves identifying a comparator "in like circumstances" with the claimant or its investment. A tribunal determining whether a comparator is "in like circumstances" with the investor or investment must typically engage in a fact-specific inquiry. At least one NAFTA tribunal has held that the host country must regulate a comparator in the same manner as the claimant or its investment.

One controversy involving the MFN treatment standard is whether an investor may claim that it deserves treatment accorded to foreign investors under provisions in another IIA in force for the host country. In ADF Group Inc ., a Canadian investor argued that it should be able to import the purportedly more favorable MST from the U.S.-Albania BIT and U.S.-Estonia BIT into NAFTA. The tribunal appeared to acknowledge that the investor was entitled to the MST in these BITs; however, it disagreed with the investor that these BITs established a more favorable standard for the investor. In a more recent NAFTA arbitration, a tribunal declined to decide the issue but noted that the NAFTA parties agree that the MFN clause cannot be used in this manner. However, the tribunal proceeded to examine whether the United States' treatment of the NAFTA party investor satisfied U.S. obligations in the U.S.-Jamaica BIT.

ISDS Arbitration Decisions and Their Interplay with U.S. Law

The Constitution governs how federal statutes may be enacted, amended, or repealed. Therefore, in order to amend a duly enacted statute, Congress must follow the processes established in Article I of the Constitution. Because the Constitution is superior to ISDS provisions in BITs and investment chapters in FTAs, such ISDS provisions cannot alter federal law. Although, to date, the United States has yet to lose a claim brought against it under an IIA, if it were to lose a claim in the future, the arbitration panel would not be able to amend, void the application of, or repeal the laws of the United States.

Moreover, the United States has negotiated agreements that limit the remedies that an arbitration tribunal may award. For example, in both NAFTA and the 2012 Model BIT, the ISDS provisions state that a tribunal may award only monetary damages and/or restitution of property. Furthermore, if a tribunal elects to award restitution of property, the respondent state has the option of paying monetary damages in lieu of such restitution. NAFTA and the 2012 Model BIT also provide that an arbitration panel cannot award punitive damages. In addition, by limiting the available remedies, these provisions preclude an arbitration tribunal from requiring amendment, repeal, or passage of any statute or regulation in U.S. law.

However, a tribunal's inability to change the laws or regulations of the United States directly does not mean that arbitration awards cannot be substantial. For example, in Occidental Petroleum Corp. v. Ecuador , the tribunal ordered Ecuador to pay Occidental $1,769,625,000—over 1 billion dollars—in damages. The tribunal rendered that award, which is one of the largest awards in favor of a claimant under ISDS arbitration, after finding that Ecuador violated an investment agreement by expropriating Occidental's property in response to Occidental transferring some of its economic interests under an oil production contract in contravention of Ecuador law. Therefore, although a tribunal lacks authority to alter a U.S. statute directly, some commentators believe that the possibility for such large monetary damages potentially could influence lawmakers and regulators when they consider proposed laws or regulations that may run afoul of IIA obligations. However, other commentators counter that the federal government faces potential monetary damages under its own domestic legal system for claims filed against the government and that most would not consider this practice a threat to democratic principles.

Apportionment of Costs and Attorneys' Fees by Investment Tribunals

Because the costs and fees associated with investment arbitration may amount to millions of dollars, the manner in which a tribunal apportions costs and fees among the disputing parties can have a significant impact on them. ICSID and UNCITRAL rules provide different methods for the apportionment of the tribunal's costs and the parties' fees. Under the ICSID Convention, the tribunal and Secretary-General of ICSID determine the apportionment of the fees and costs borne by the arbitrators, ICSID Secretariat, and disputing parties. The tribunal sets forth in the award the proportion of costs and fees that each party will bear. The ICSID rules do not express a preference for requiring the losing party to bear more of the costs and fees.

By contrast, the UNCITRAL rules establish a more detailed framework for apportionment of arbitration costs and attorneys' fees. Article 40 provides an exhaustive list of the types of expenses that may be eligible for apportionment. Article 41 sets out the rules for determining the fees and expenses of the arbitrators. Attorneys' fees must be "reasonable." With respect to allocation of costs, the UNCITRAL Arbitration Rules appear to leave the tribunal with a large amount of discretion in apportioning the costs of the arbitration. Article 42 of the UNCITRAL rules states the following:

(1) The costs of the arbitration shall in principle be borne by the unsuccessful party or parties. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.

(2) The arbitral tribunal shall in the final award or, if it deems appropriate, in any other award, determine any amount that a party may have to pay to another party as a result of the decision on allocation of costs.

Tribunals apportioning costs under ICSID rules have indicated an inclination to award half of the costs of arbitration to each party when the case presented complex and novel questions.

Recognition and Enforcement of Investment Arbitration Awards Against State Parties by U.S. Courts

Once an investment tribunal has rendered an award in an ISDS case, a respondent state may decide to compensate the investor voluntarily. However, if the state does not do so, an investor may seek to enforce the award against the respondent state in a court with jurisdiction over the state's assets. This section analyzes international treaties and U.S. laws pertaining to the recognition, enforcement, and execution of investment arbitration awards against foreign countries and the United States in U.S. courts.

For purposes of this section, "recognition" of an arbitral award rendered by an investment tribunal under a U.S. IAA involves a U.S. court's domestication of the award so that it is equivalent to a judgment of the courts of the United States. "Enforcement" of an award refers to a court "converting the [award] into a judicial judgment that orders an award debtor to comply with the award, including paying any monetary sum due." "Execution" of a judgment refers to measures taken by the investor when the host country declines to pay compensation in accordance with the judgment.

Recognition and Enforcement of ICSID Convention Awards

The ICSID Convention would appear to limit the ability significantly of an ICSID-member country, such as the United States, to refuse to recognize and enforce an award rendered under the ICSID Convention (i.e., when the investor's home state and the host country are both members of the ICSID Convention and the dispute falls under that Convention). Under ICSID Convention Article 54:

Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.

Furthermore, Article 53 of the ICSID Convention states that the award binds the parties and "shall not be subject to any appeal or to any other remedy except those provided for in this Convention" (e.g., interpretation, revision, or annulment).

When implementing the ICSID Convention in federal law, Congress provided that the award of a tribunal under Chapter IV of the ICSID Convention "shall create a right arising under a treaty of the United States." Any requirement that a party pay compensation under an award "shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States." As commentators have noted, this would appear to establish a limited role for a U.S. court to review an ICSID Convention award.

Recognition and Enforcement of Non-ICSID Convention Awards

For those arbitrations that do not take place under the ICSID Convention (i.e., either the investor's home country, the host country, or both, is not a party to the ICSID Convention), an investor might be able to pursue recognition and enforcement of an award under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) in states party to the convention. There are 154 countries party to this convention, according to UNCITRAL.

The New York Convention, which Congress has implemented in the Federal Arbitration Act (FAA), applies only to recognition and enforcement of awards: (1) "made in the territory of a state" different from the one in which a party seeks recognition and enforcement of the award; or (2) that are considered to be "foreign" awards in the state in which recognition and enforcement is sought. The New York Convention provides that contracting states shall recognize the awards "as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon," subject to certain conditions. The New York Convention supplies somewhat broader means of challenging recognition and enforcement of an award on the grounds that the party seeking to prevent enforcement can show that, for example, the arbitrator exceeded its powers, the responding party was unable to present its case, or recognition or enforcement of the award would be contrary to the public policy of the country where enforcement is sought.

Execution of Arbitral Awards

Although the ICSID and New York conventions, as implemented in federal law, would appear to limit the grounds on which a U.S. court may refuse to recognize and enforce an arbitral award, neither convention purports to affect contracting states' laws regarding the execution of judgments. With respect to execution of a judgment (resulting from recognition and enforcement of an arbitral award) on the assets of a country located in the United States, the ICSID Convention defers to each member-country's laws, which may provide sovereign immunity from execution on certain assets of a foreign country located in the United States. The ICSID Convention provides that "[e]xecution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought." Moreover, Article 55 of the ICSID Convention provides that "[n]othing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution."

Thus, in the case of parties seeking to obtain execution of a judgment on a foreign country's assets in the United States, the protections of the Foreign Sovereign Immunities Act of 1976 (FSIA) could potentially apply. FSIA places limits on the types of property that a federal or state court may order to be seized in satisfaction of a judgment against a foreign country. It also may require the entity seeking execution of a judgment to serve notice on the foreign country prior to execution and to wait until a certain amount of time has elapsed before execution on the country's assets. Generally, enforcement of an arbitral award by execution against U.S. assets of a foreign country is limited to assets of the country used for a "commercial activity in the United States." In addition, certain foreign military and central bank or monetary authority property may retain immunity from execution.

Recognition, Enforcement, and Execution of an ISDS Award Rendered Against the United States

As noted above, an ISDS tribunal has never ordered the United States to pay compensation to an investor in an ISDS case. If the United States lost a case, it seems unlikely that it would refuse to compensate a foreign investor. However, in the unlikely event that it did refuse to pay, an investor could potentially seek recognition of an investment arbitration award rendered against the United States in federal court on the grounds that the United States has waived its sovereign immunity from suit under the Tucker Act and the relevant investment treaty. Assuming that the award qualified for recognition and enforcement under the ICSID Convention, New York Convention, or other relevant treaty, then, as discussed above, it appears that the court would have limited grounds on which to refuse recognition and enforcement of the award. However, even if the investor obtained recognition and enforcement of an award, the United States has not waived its sovereign immunity from execution of the award (now a judgment) under the Tucker Act, and thus the investor would appear to be unable to collect on the judgment if Congress has not appropriated funds for payment of the judgment. However, the United States would still have an international obligation to comply with the judgment.