Investor-State Dispute Settlement (ISDS) & Investment Contracts

Books:

bookcoverAre legal agreements designed to protect the interests of foreign investors compromising the ability of governments to protect the environment?

Recent years have seen an explosive increase in investor-state disputes resolved in international arbitration. This is significant not only in terms of the number of disputes that have arisen and the number of states that have been involved, but also in terms of the novel types of dispute that have emerged. Traditionally, investor-state disputes resulted from straightforward incidences of nationalisation or breach of contract. In contrast, modern disputes frequently revolve around government measures taken to further public policy goals, such as the protection of the environment. This book explores the outcomes of several investor-state disputes over environmental policy. In addition to examining the pleadings of parties and decisions of arbitral tribunals in disputes that have been resolved in arbitration, the influence that investment arbitration has had in negotiated outcomes to conflicts is also explored.

Reviews:

  • Prof Robert Lee (Environmental Liability Vol 18/1, 2010) described the book’s central argument as “beautifully conceived and weaved”.
  • Nicolette Butler and Prof Surya Subedi (Journal of World Energy Law and Business, Vol 4/2, 2011) refer to the book as an “inspired work” that “uniquely provides a comprehensive, unbiased analysis” of the relationship between investment law and environmental governance and is “written by an individual with outstanding knowledge of both aspects of the topic.”
  • Prof Kevin Gallagher (Environmental Conservation Vol 38/01, 2011) and singled out the “the highly original documentation of the use of [international investment agreements] to threaten governments into changing policy” as the book’s most important contribution.

Chapters in Books:

“Does the Green Economy Need Investor-State Dispute Settlement?” in K. Miles (ed) Research Handbook on Environment and Investment Law (Cheltenham: Edward Elgar, forthcoming in 2016).

“Regulating Foreign Investment: Methanex Revisited” (with Todd Tucker) in C.L. Lim (ed) Alternative Visions in the International Law on Foreign Investment: Essays in Honour of M. Sornarajah (Cambridge University Press, 2016), 255-288.

“Regulatory Chill and the Threat of Arbitration: A View from Political Science” in C. Brown and K. Miles (eds) Evolution in Investment Treaty Law and Arbitration (Cambridge University Press, 2011), 606-627.

“Reconfiguring Investment Contracts to Promote Sustainable Development” (with Lorenzo Cotula), Yearbook of International Investment Law and Policy 2011/2012: 281-310.

“The Potential Perils of Forest Carbon Contracts for Developing Countries: Cases from Africa”, Journal of Peasant Studies (2012) 39(2): 551-572.

“Challenges to Australia’s National Health Policy from Trade and Investment Agreements” (with Deb Gleeson and Tom Faunce), Medical Journal of Australia, (Feb 2011): 1-3.

“Once BITten, Twice Shy? The Uncertain Future of ‘Shared Sovereignty’ in Investment Treaty Arbitration”, Policy & Society (2011) 11(3): 15-21.

“Too Little, Too Late? International Oversight of Contract Negotiations in Post-Conflict Liberia” (with Jo Ford), International Peacekeeping, (2010) 17(3): 361-376.

“Unilateral Commitments to Investment Protection: Does the Promise of Stability Restrict Environmental Policy Development?” (2008) Yearbook of International Environmental Law 17: 139-167.

“Third-Party Participation in Investment-Environment Disputes: Recent Developments”, Review of European Community and International Environmental Law (2007) 16(2): 230-242.

“Mineral Investment and the Regulation of the Environment in Developing Countries: Lessons from Ghana”, International Environmental Agreements: Politics, Law and Economics (2006) 6(4): 371-394

“What You Don’t Know Can Hurt You: Investor-State Disputes and the Environment”, Global Environmental Politics (2006) 6(4): 73-100.

Online Publications:

Does the Green Economy Need Investor-State Dispute Settlement?”, Investment Treaty News, 27 November 2015.

 “Resisting the Law of Greed”, Green Agenda, 2015

“Foreign Investment Contracts in the Oil & Gas Sector: A Survey of Environmentally Relevant Clauses”, Investment Treaty News (2011) 2(1): 12-15

“Australia’s rejection of investor-state dispute settlement: Four potential contributing factors” (with Pat Ranald), Investment Treaty News 1(4): 6-7 

 “Preserving the right to regulate in the Trans-Pacific Partnership agreement and beyond”, East Asia Forum Quarterly (2011) 3(1): 31-32

Review of The End of Modernity: What the Financial and Environmental Crisis is Really Telling Us, by Stuart Sim”, Sustainability, Science, Practice & Policy (2011) (online book review)

Reports:

“Investment and Investor-State Dispute Settlement”, FTA Issue Brief No. 6, Korea Legislation Research Institute (KLRI), Seoul, 18-38.

“International Investment Developments”, Yearbook of International Environmental Law (2013) 22: 333-342 (year-in-review report).

“International Investment Developments”, Yearbook of International Environmental Law (2012) 21: 313-322 (year-in-review report).

“International Investment Developments”, Yearbook of International Environmental Law (2011) 20: 465-473 (year-in-review report).

“International Investment Developments”, Yearbook of International Environmental Law (2009) 19: 415-421 (year-in-review report).

“International Investment Developments”, Yearbook of International Environmental Law (2008) 18: 355-365 (year-in-review report).