Most investment treaties include two arbitral clauses: one permitting investor-state arbitration and another permitting state-to-state arbitration. However, almost no analysis exists about the extent and limits of state-to-state arbitration or how such arbitration interacts with investor-state arbitration conducted under the same treaty. A number of recent cases – including Peru v Chile, Italy v Cuba and Ecuador v United States – are focusing a spotlight on these issues. State-to-state clauses typically permit claims about the “interpretation and/or application” of the treaty. But does this mean that states can bring interpretive claims that would affect ongoing investor-state disputes or bind future investor-state tribunals? Can a home state bring and/or settle a diplomatic protection claim on behalf of its investors, even if those investors do not consent? These and many other questions remain unanswered. To discuss them, we had a conversation with:
– W. Michael Reisman, Yale Law School
– Lee M. Caplan, U.S. Department of State, Office of the Legal Adviser, Office of Economic and Business Affairs
– Andrew Loewenstein, Foley Hoag LLP – Boston, M.A.
– Andrea Bjorklund, Visiting Professor (Guest of the L. Yves Fortier Chair), McGill University Faculty of Law
– Michele Potestà, Graduate Institute, Geneva
– Anthea Roberts, London School of Economics