Tag Archives: Reports & Statistics

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.

New report on investment arbitration

invstatesccnews

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has published a new report prepared by legal counsel Celeste E. Salinas Quero. She describes, among others, the economic sectors involved, the states’ measures most frequently challenged by investors, the outcomes and costs of investment disputes under the SCC Rules.

SCC is a preferred venue for investment arbitrations. Over the past 20 years, the SCC has administered and acted as appointing authority in more than 90 investment arbitrations, both in small-sized and in large-scale disputes.

The report shows that most awards have been rendered in favor of respondent states, with 21% of tribunals declining jurisdiction, 37% denying all of the investor’s claims and 42% of tribunals upholding the investor’s claims in part or in full. As regards costs, the report reveals that while “splitting the baby” is a common approach taken by tribunals, most tribunals allocate and apportion the costs between the parties in a proportion that reflects each party’s relative success and conduct throughout the proceedings.

Read the full article below.

Article: Investor-state disputes at the SCC – by Celeste E. Salinas Quero

ICSID Statistics: Increased Diversity of Arbitrators

National flags of different countryThe ICSID Secretariat has recently published its latest case statistics where it reports that up to 30 June 2016, the number of overall ISDS cases has reached 570 cases.

Overall, most respondent states are countries in Eastern Europe, Central Asia and South America.

Investors involved in overall ICSID cases mostly come from the service industry, where information and communication, finance, service and trade, transportation and tourisms sector together make up 29% of claimants.

As for outcome of the cases, States are successful in the majority of cases. ICSID reports that tribunals have declined jurisdiction in 26% of cases, dismissed all claims in 27% of cases and upheld claims in partial or in full in 46% of cases.

The report also covers cases initiated and completed in ICSID Fiscal Year 2016, which is the period of 1 July 2015 –30 June 2016. In this period, most cases involved investors in power and energy industry, followed by the service sector.

There is an apparent increase in diversity of arbitrators in terms of nationality during the Fiscal Year 2016. During this period, arbitrators, conciliators and ad hoc committee members from South America, Central America and the Carribean, Middle East and North America, Sub-Saharan America, South & East Asia and the Pacific, Eastern Europe and Central Asia made up 39% of cases. This represents a significant improvement compared to just 24% in the previous fiscal year.

Just published: UNCTAD report on ISDS development  

?????????????????????The United Nations Conference on Trade and Development (UNCTAD) has recently published a report on developments of ISDS in 2015. The report addresses ISDS cases initiated in 2015 as well as the statistics on overall ISDS cases from 1987 to 2015.

The report finds that there were 70 ISDS cases initiated in 2015, which brings an overall number of publicly known ISDS cases to 696. Most of the cases initiated in 2015 arose from old bilateral investment treaties dating back in the 1990s.

Investors from developed countries made the most frequent claimants in cases initiated in 2015, with the top three home states of investors being the United Kingdom, Germany and Luxembourg. This is also true when it comes to the home states of claimants in total since 1987, where investors from the United States, the Netherlands and the United Kingdom top the list.

On the state side, Spain was the most frequent respondent state in cases initiated in 2015, followed by Russia, Czech Republic and Ukraine. Overall since 1987, most frequent respondent states in ISDS cases are still developing countries, with Argentina and Venezuela top the list.

As for the matters being disputed, a number of cases initiated in 2015 concerned sustainable development sectors such as infrastructure and climate change mitigation. Approximately 30% of cases were triggered by the regulation of renewable energy producers, all of which were brought against EU member States (Bulgaria, Italy, and Spain).

ISDS tribunals rendered at least 51 decisions in 2015, 31 of which were in the public domain at the time of the writing of the report. This brings the number of concluded cases to 444 by the end of 2015, with 36% of the cases decided in favour of the State, 26% in favour of investors and 26% cases were settled.

JUST PUBLISHED: Predicting the Outcomes of ISDS

StatisticJan2016The research uses data from 159 cases where arbitrators rendered awards that resulted in a determination of damages. The awards examined were those that are publicly-available as of 1 January 2012.

Here are some key findings:

  1. States were successful in 60.4% of the cases, and investors won approximately 39.6% of the cases.
  2. In cases when investors won, they generally obtained roughly one-third of the compensation claimed.
  3. Focusing exclusively on the small subset of cases where investors obtained damages, investors obtained a mean award of US$45.6 million.
  4. For the eight largest claims, only one case was successful.
  5. The vast majority of investors bringing billion-dollar claims obtained nothing.

ICSID Numbers with a Focus on the European Union

The International Center for Settlement of Investment Dispute (ICSID) has released its caseload statistics with a special focus on the European Union. The ICSID is an organization within the World Bank Group, and administers the majority of ISDS cases.

As of March 1, 2014, the ICSID had registered 463 cases under the ICSID Convention and Additional Facility Rules.

The statistics show as follows:

  • Among 463 cases administered by the ICSID, 55 cases or 12% of the cases, involved a member State of the European Union as respondents.
  • Of these 55 cases, 71% were commenced by an investor who was also from an EU member State. In short, the majority are intra-EU cases.
  • Almost a third (27%) of these cases were instituted by individual persons.
  • Sweden, the United Kingdom, Austria, Denmark, Ireland, Luxembourg, Malta, the Netherlands and Portugal are member States that have not been a respondent State in ICSID cases.
  • The EU member States that have appeared most frequent as respondent in ISDS proceedings are Hungary (11 cases) and Romania (9 cases).
  • Investors from an EU member State were involved in 54% of the total of registered ICSID cases. This makes EU investors the most frequent users of ISDS.

The ICSID Caseload – Statistics 2014

The ICSID recently published its latest caseload statistics of ISDS cases since 1972 until 30 June 2014. According to an UNCTAD report, ICSID has administered the majority of ISDS cases, which accounts for 62% of all ISDS cases as per 31 December 2013.

Below are some interesting points from the statistics:

  1. Since 1972 until 30 June 2014, ICSID has registered 464 investment arbitration cases and 9 conciliation cases.
  2. The basis of the ICSID jurisdiction is found not only in bilateral investment treaties or free trade agreements, but also in investment law of host states and investment contracts between investors and host states.
  3. Among all ICSID cases that have been decided by tribunals so far, tribunals have declined jurisdiction in 25% of cases, dismissed all claims in 28% of cases and decided that the claims are manifestly without legal merit in 1% of cases. This means that government prevailed in 54% of cases. In 46% of cases, tribunals have upheld investor’s claims in part or in full.
  4. South American, Eastern European and Central Asian countries remain the mostly-involved State party in ICSID cases, followed by the countries in Sub-Saharan Africa, Middle East and North Africa.

Looking at the latest trend, between 1 July 2013 and 30 June 2014, tribunals declined jurisdiction in 48% of cases and dismissed all claims in 24% of cases. This means that governments prevailed in 72% of cases. In 28% of the cases the investors’ claims have prevailed in part or in full.