The Emergence of the Intergovernmental Trust in International Law

British Yearbook of International Law, 2011

ntergovernmental trust funds are vehicles set up mainly to advance develop- mental objectives. They are composed of capital contributed largely by states. The management of the capital and the objectives of the trust are assigned to a trustee, usually an international organization, such as the UN or the World Bank. The practice of the trusts surveyed in this article unequivocally suggests that the intention of the two principal parties to the trust relationship (i.e. donor and trustee) is to transfer ownership of the trust’s assets to the trustee. The latter’s responsibility is restricted to investing and distributing the trust’s assets to the identified beneficiaries. The understanding is that neither the donors nor the trustee is liable against third parties in respect of any unlawful act committed in connection to the donation or the disbursement of funds. The absolute char- acter of this extra-contractual limitation is dismissed in this article, given that despite the charitable or benevolent nature of the trust’s aims, the disbursement of funds under certain circumstances may be injurious to the interests of states or the international community.

2003

Boston College Law Review, 2018

Third-party funding of international investment arbitration is on the rise. Through TPF funders will cover the legal fees of investors filing claims under investment treaties in exchange for a portion of the arbitral award. Proponents of third-party funding claim that it provides access to justice for parties that normally would not have the funds to arbitrate against state actors. Given that the international investment law that governs these claims is unbalanced, and that funding only flows towards investor-claimants, and at the expense of states and their taxpayers, allowing third-party funding in investment arbitration risks creating unjustifiable wealth transfers from the citizens of target states for the benefit of speculators. Reform is needed to prevent the deleterious effects of third-party funding on developing and newly-industrialized states and on the investment law regime itself.

19 ICSID Rep (Cambridge, University Press, 2021) (eds. Jorge Vinuales and Michael Waibel), 2021

As is well known, the ICSID Convention does not define what “investments” are. Article 25 ICSID Convention, the only provision on the subject matter jurisdiction of ICSID tribunals, merely refers to “investment”. Investment tribunals and the literature have adopted divergent approaches with respect to two specific features of the term “investment”. These two features are: (i) whether “investment” in Article 25 ICSID Convention has an objective meaning, in addition to the definition of investment in the instrument of consent/the investment treaty (the controversy over the objective versus subjective meaning of investment); and (ii) if “investment” has an objective meaning, which elements ought to be used to objectively determine investments (the controversy about objective, or characteristic elements of investments). Specifically, there has been some controversy as to whether an objective element is that the transaction contributes to the host country’s economic development. This study explores both features. It focuses on the second feature because the objective elements that may characterise investments have considerable practical relevance for the jurisdictional determinations of ICSID tribunals. Section II analyses whether “investment” in Article 25 ICSID Convention has an objective meaning, and whether the term “investment” has evolved over time. Section III examines possible objective elements of investments. Section IV considers two special cases whose investment status is unclear considering these two controversies: first, whether financial instruments qualify as investments and, second, whether commercial arbitration awards, investment awards or judgments by national courts in the host country qualify as investments.

Trust and Private International Law

European Review of Private Law

2015

This article treats main approaches to the term ‘investment’ under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and international investment treaties. Discussion of different trends does not only involve a purely theoretical question; it also creates practical consequences due to the role of investment in the determination of the jurisdiction of investment tribunals. After having analysed the method adopted by each approach, this article aims to find the most plausible definition for the term ‘investment’. It suggests that ‘investment’ is defined in investment arbitration as dedication of some assets (element of contribution) according to a plan (element of duration) in order to achieve some benefits (element of risk). This approach would fit to the ordinary economic meaning of the term.

Leiden Journal of International Law, 2011

It is now standard in contemporary international law commentary to note that the latter part of the twentieth century has seen a move away from the traditional understanding of international law as fundamentally based on the consent of states. As just two examples, customary international law has in some contexts become more influential than treaties and human rights obligations are now recognized as often binding states even when they have signed no treaty acknowledging their existence. Treaty interpretation, by contrast, has remained focused upon the parties to a treaty, with even textualist approaches to treaty interpretation justified as the best means of ascertaining the intent of the contracting states. The purpose of the present article is to highlight the existence of a subset of treaties for which even a teleological approach to interpretation fails to capture the central importance for the treaty of entities other than the contracting states. These ‘power-conferring treati...

2019 ESIL Annual Research Forum, 2019

The aim of this paper is to analyse whether and to what extent international investment law (IIL) is capable of contributing to the development of the rule of law within the European Union (EU), as suggested by some practitioners of international arbitration. Arguably, the rise of this argument may be traced back to two sets of events. The first one is the recent rise in importance of the rule of law issue connected to the controversies related to reforms of the judicial system in Poland, as well as developments in Hungary. The second one concerns the so-called “ISDS legitimacy crisis”, reaching far beyond the experts’ debate directly into the realm of politics, as evidenced inter alia by controversies around the (now frozen) project of the Transatlantic Trade and Investment Partnership (TTIP), along with the Comprehensive Economic and Trade Agreement (CETA) and the seminal Court of Justice of European Union (CJEU) Achmea judgment . Conceivably, placing greater emphasis on the ISDS’s alleged beneficial effect on the rule of law in host States could provide the so much needed legitimation boost, by placing IIL into the broader framework of institutional safeguards against the democratic backsliding. Upon closer scrutiny, however, it turns out that due to its systemic flaws, the ISDS-mechanism could hardly be seen as a suitable tool to this end. In particular its detachement from national legal systems and fixation on pecuniary remedies make it much less attractive in this context. This is particularly visible in comparison to European Convention of Human Rights. The possibility of ISDS assisting EU in its rule of law endeavours is further diminished by the fact that, at least from EU's point of view, there are serious doubts as to the Ifulfillment of rule of law criteria by ISDS mechanism itself.