Category Archives: UNCTAD

Morocco and Nigeria sign new investment treaty

BloggIn December 2016, Morocco and Nigeria signed a new investment treaty, which will enter into force once it has been ratified by both countries’ parliaments. The treaty is in many ways an ambitious update of the content often seen in older treaties, and as such a good illustration of the new “generation” of investment protection.

The majority of investment treaties are relatively old: most were negotiated in the 20th century. Many states have expressed concerns over the content of these treaties and reacted by drafting new “model agreements”, renegotiate existing treaties or even terminate old treaties entirely.

The new Morocco-Nigeria treaty is longer than the average older treaty. Among the more innovative features are a clear role for sustainable development, limits and clarifications to the substantive investment protection, as well obligations on the investor (and not only on the host state).

With respect to dispute resolution, both ISDS and state-state arbitration is available. For ISDS, an investor can choose between ICSID and UNCITRAL. In the latter case, the dispute will automatically be covered by the UNCITRAL Transparency Rules, but it is also made clear by Article 10(5) that every dispute shall be characterized by extensive transparency.

The treaty is available here. That two African states decide to sign a bilateral investment treaty is not only an expression of support for such deals: it also shows the path forward in the balancing of investment protection and state interests, in a manner compatible with sustainable development.

 

UNCTAD updates ISDS statistics for 2016

Blogg_v9United Nation Conference on Trade and Development (UNCTAD) is the UN body responsible for investment issues. It regularly publishes reports and analyses about ISDS, as well as on about general investment treaty trends, including an annual update on recent developments. We have written about the reports from 2014 and 2015, but recently UNCTAD also updated its database with information from 2016.

 

Examples of statistics from this latest development include:

  • There were 62 new ISDS cases in 2016, a relatively high number compared to earlier years, with the exception of 2015, when 74 cases were initiated.
  • Colombia, India and Spain were the most frequent respondent states (with four cases each) but the cases were spread over 49 different host states.
  • The United States and the Netherlands were the most common investor nationalities.
  • Roughly two thirds of the cases were brought under bilateral treaties, but 10 were based on the multilateral Energy Charter Treaty.

All UNCTAD data, including the updates from 2016, are available in a searchable database here.