RESEARCH ESSAY QUESTIONS-CHOOSE ONE
Reading Guide is attached
1. What structural reforms (if any) should be adopted by States to replace the current system of
ad hoc arbitral tribunals for the resolution of investment disputes? For instance, should there
be a permanent multilateral investment court, an appellate tribunal, or both? Or do you think
that the proposals for incremental reform are preferable?
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2. In May 2020, in the midst of the COVID-19 pandemic, the Columbia Center for Sustainable
Development called for an “immediate moratorium on all arbitration claims by private
corporations against governments using international investment treaties”, as well as a
“permanent restriction on all arbitration claims related to government measures targeting
health, economic, and social dimensions of the pandemic and its effects.” Do you agree that
such a moratorium should be implemented in response to the global pandemic? Why / why
not? Critically discuss.
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3. How should arbitral tribunals deal with investor misconduct, such as illegal or other
“faultworthy” behaviour in the making and operation of the investment, such as the making
of corrupt payments? Should tribunals regard such misconduct of the investor as going to the
question of jurisdiction, or to the admissibility of the claim, or is it an issue of merits or
quantum? Critically discuss.
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4. Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides that, in
interpreting a treaty, there shall be taken into account “any relevant rules of international law
applicable in the relations between the parties”. To what extent does this permit investment
tribunals to have regard to other international obligations, such as human rights or
environmental obligations, in interpreting the provisions of a bilateral investment treaty?
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5. Consider the following statement, by the ICSID tribunal in Gerald International Ltd v Sierra
Leone:
“The Tribunal shares the view expressed by other ICSID tribunals that
provisional measures that concern the sovereign right to conduct criminal
proceedings must be issued with caution.”
– Gerald International Ltd v Sierra Leone (ICSID Case No ARB/19/31, Procedural
Order No 2 of 28 July 2020), para. 147.
Critically discuss. In what circumstances can investment tribunals order a State to refrain
from pursuing domestic criminal proceedings?
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6. In Kingdom of Spain v Infrastructure Services Luxembourg SARL [2021] FCAFC 3, the Full
Court of the Federal Court of Australia held that Article 55 of the ICSID Convention does
not provide for immunity from jurisdiction in proceedings for the recognition of an ICSID
award, and characterised the award creditor’s claim as being one for the recognition of an
ICSID award, rather than for the recognition and enforcement of an ICSID award. Do you
agree with the Full Court of the Federal Court of Australia’s judgment? Why / why not?
Critically discuss.
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7. Critically analyse the decisions and awards of investment tribunals on the MFN clause. Is
there an emerging consensus on how such provisions should be interpreted and applied?
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8. It has been suggested that the system whereby at least two arbitrators are appointed by the
parties should be abandoned in favour of all arbitrator appointments being made by (e.g.) the
relevant arbitral institution. Do you think this would assist in promoting the legitimacy of
investment arbitration? Critically discuss.
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9. Would the world be a better place without ISDS? What concrete alternatives are there to the
present system of investor-State arbitration, and are they viable?
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10. In Vigotop Ltd v Hungary (ICSID Case No ARB/ 11/22, Award of 1 October 2014), the
ICSID tribunal held that a State’s conduct in terminating a contract can amount to
expropriation will depend, inter alia, on whether it “acted in its sovereign capacity” when it
terminated the contract (para. 328ff). Do you agree that this is the correct test, or do you
consider that this may be open to abuse by States wishing to avoid contractual obligations?
Critically discuss.
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