Tribunals have understood this to mean that a breach of contract entails a breach of the BIT, with it being possible that the latter breach is pursued before an investment arbitration tribunal. What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state? Some German BITs also offer the investor the choice between the two.
Does the state have an established practice of requiring confidentiality in investment arbitration? German BITs are generally silent as regards confidentiality of pleadings and hearings, and awards or other decisions by tribunals in investment arbitration cases. However, the situation is different under EU FTAs with investment chapters that are currently being negotiated and are supposed to enter into force in the near future see question Under these FTAs, the publication of pleadings and procedural decisions by the tribunal, and the broadcasting of hearings, is envisaged.
In the investment arbitration cases Germany has been involved in so far see question 24 , the state has largely pursued a policy of maintaining confidentiality. That generally means that the existence of the cases and the names of the arbitrators were publicised. In addition, in one case that has already been concluded, the award was published. Nonetheless, it is to be expected that future cases involving Germany will be subjected to greater transparency.
For decades, the German government has provided investment guarantees to German investors investing abroad. These investment guarantees typically cover losses resulting from a number of risks, including:. An BMWi-headed inter-ministerial committee decides whether or not to grant a guarantee to an investor.
An investment must fulfil numerous requirements before an investment guarantee is granted. In particular, the investment has to be a new or a follow-up investment. Moreover, the investment has to be made by a company based in Germany on a long-term basis and an apparent German national interest must be present. The investment must also be viable from an entrepreneurial and economical perspective. Furthermore, the investment needs to have a positive effect on the host country and Germany alike, and it should intensify the relations between the countries.
Legal protection of the investment in the host country is also a necessary requirement for an investment guarantee to be granted. Sufficient legal protection generally requires that there is an investment treaty in place between Germany and the host country. In all cases, the economic and political environment, and the development of the host country, are considered too.
Infsofar as it is publicly known, three investment arbitration cases have been commenced against the German state. The case was settled, with no further details made publicly available. Vattenfall initiated the first case in , with the subject matter being environmental requirements imposed on a coal-fired power plant in Hamburg. The case was settled in by way of a consent award, with the state making no monetary payments.
The second Vattenfall case, initiated in , relates to measures taken by Germany with regard to its nuclear phaseout. The case is ongoing. Do the investment arbitrations involving the state usually concern specific industries or investment sectors? Given the limited number of cases brought against Germany so far see question 24 , there is insufficient information to draw sectoral conclusions. While two of three known cases were brought in the energy sector, those two were also brought by the same investor.
Does the state have a history of using default mechanisms for appointment of arbitral tribunals or does the state have a history of appointing specific arbitrators? In the two Vattenfall cases, Germany exercised its right to appoint an arbitrator, appointing two British nationals, Sir Franklin Berman and Professor Vaughan Lowe, respectively. Judging by the limited information available, it appears that the German state will act promptly and exercise its right to appoint.
Does the state typically defend itself against investment claims? Germany typically defends itself against investment claims, with both internal and external counsel acting in the arbitrations. In the two Vattenfall cases, a team at the Ministry for Economic Affairs and Energy acted as internal counsel. Is the state party to any international agreements regarding enforcement, such as the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards?
This Convention has been in force in Germany since Does the state usually comply voluntarily with investment treaty awards rendered against it? Two of the cases brought against Germany have been settled, whereas the third case is still pending see question However, Germany generally takes its obligations under international law seriously. Consequently, one would expect that Germany would comply with an adverse award if one were to be rendered. If not, does the state appeal to its domestic courts or the courts where the arbitration was seated against unfavourable awards?
Germany has never appealed to its domestic courts or to the courts where the arbitration was seated against an unfavourable investment arbitration award. Give details of any domestic legal provisions that may hinder the enforcement of awards against the state within its territory. The regime for the enforcement of arbitration awards in Germany will depend on whether the arbitration award at issue was rendered pursuant to the ICSID Convention or pursuant to other rules.
Rather, with regard to the pecuniary obligations imposed by an ICSID award, such an award is to be treated like a final judgment of a German court. For commercial arbitration awards against the state or investment arbitration awards rendered otherwise than pursuant to the ICSID Convention, the New York Convention is the most relevant instrument regarding the enforcement in Germany.
Under the New York Convention, enforcement may be refused only if one of the grounds for refusal stated in article V of the New York Convention is present. This may be the case, for example, if the tribunal had no jurisdiction to decide on a case or if fundamental procedural rules have been violated so that one of the parties could not properly present its case. Generally, the threshold for refusing enforcement of a foreign arbitral award is high. Irrespective of whether enforcement is sought pursuant to the ICSID Convention or the New York Convention, rules on sovereign immunity may hinder the enforcement of an award against Germany.
In this respect, the nature of the asset against which enforcement is sought will be decisive. Specifically, enforcement against an asset of the state will be rejected if the asset in question is needed for the fulfilment of public duties. In that context, the question arose whether the dispute resolution clause contained in this BIT was compatible with EU law. According to the ECJ, the dispute resolution clause created a risk that an investment arbitration tribunal would interpret and apply EU law.
At the same time, the ECJ concluded that such a tribunal could not refer questions to the ECJ for preliminary rulings and that such a tribunal is also not subject to the control of a member state court. Another open question is whether the Achmea judgment also indicates that investment arbitration under the ECT is incompatible with EU law in a case involving an EU member state and an investor from another EU member state.
Nevertheless, there is little doubt that the judgment has further accelerated a movement against investment protection under intra-EU BITs. If you would like to learn how Lexology can drive your content marketing strategy forward, please email enquiries lexology.
The quality of the material is very good and the newsfeeds provide concise overviews of recent developments. Back Forward. Share Facebook Twitter Linked In. Follow Please login to follow content. Register now for your free, tailored, daily legal newsfeed service. Germany November 16 Background Foreign investment What is the prevailing attitude towards foreign investment? What are the main sectors for foreign investment in the state? Is there a net inflow or outflow of foreign direct investment?
Investment agreement legislation Describe domestic legislation governing investment agreements with the state or state-owned entities. International legal obligations Investment treaties Identify and give brief details of the bilateral or multilateral investment treaties to which the state is a party, also indicating whether they are in force.
Germany possesses no overseas territories. Investment treaty programme Does the state have an investment treaty programme? Regulation of inbound foreign investment Government investment promotion programmes Does the state have a foreign investment promotion programme? Applicable domestic laws Identify the domestic laws that apply to foreign investors and foreign investment, including any requirements of admission or registration of investments.
The most important case in this regard is the acquisition by a foreign national of 25 per cent or more of the voting rights in a domestic company that produces or develops: weapons; engines or gearboxes for battle tanks and other armoured tracked vehicles; or products with an information technology security function for processing classified governmental files.
In that context, critical infrastructure is defined as facilities or installations, or parts thereof, in the sectors of: energy; information technology and telecommunication; transport and traffic; health; water; food; and finance and insurance. Relevant regulatory agency Identify the state agency that regulates and promotes inbound foreign investment. Relevant dispute agency Identify the state agency that must be served with process in a dispute with a foreign investor.
Articles 2 to 5 provide the substantive protections to be afforded to investors and investments, in particular: the standards of fair and equitable treatment; full protection and security; national as well as most-favoured-nation treatment; protection against discrimination and expropriation without prompt, adequate and effective compensation; and the right to a free transfer of payments.
Preparatory materials Does the state have a central repository of treaty preparatory materials? Scope and coverage What is the typical scope of coverage of investment treaties? Protections What substantive protections are typically available?
Various investment tribunals have held this guarantee to include: protection against the frustration of legitimate expectations; the obligation to provide a transparent and stable business environment; the obligation not to apply arbitrary measures; and a duty on the state to act in good faith. Dispute resolution What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?
Confidentiality Does the state have an established practice of requiring confidentiality in investment arbitration? Insurance Does the state have an investment insurance agency or programme? These investment guarantees typically cover losses resulting from a number of risks, including: direct and indirect expropriation; breach of contract by the state; war and other armed conflict; and revolution and civil disturbance.
Investments that may be covered are: equity participation including participation through holding companies ; investment-like loans ie, shareholder or bank loans that resemble equity ; endowment capital for foreign branches or plant locations of German companies; and rights qualifying as assets in the form of long-term investments eg, concessions, production-sharing agreements for oil and gas, and bonds. Investment arbitration history Number of arbitrations How many known investment treaty arbitrations has the state been involved in?
Industries and sectors Do the investment arbitrations involving the state usually concern specific industries or investment sectors? Selecting arbitrator Does the state have a history of using default mechanisms for appointment of arbitral tribunals or does the state have a history of appointing specific arbitrators?
Defence Does the state typically defend itself against investment claims? Enforcement of awards against the state Enforcement agreements Is the state party to any international agreements regarding enforcement, such as the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards?
Award compliance Does the state usually comply voluntarily with investment treaty awards rendered against it? Unfavourable awards If not, does the state appeal to its domestic courts or the courts where the arbitration was seated against unfavourable awards?
Provisions hindering enforcement Give details of any domestic legal provisions that may hinder the enforcement of awards against the state within its territory. Update and trends Current developments Are there any emerging trends or hot topics in your jurisdiction? Users are kindly asked to report agreements, errors or omissions by using the online contact form.
Individual treaties are mapped by law students from participating universities, under the supervision of their professors and with the overall guidance and coordination of UNCTAD. The mapping of treaty provisions is not exhaustive, has no official or legal status, does not affect the rights and obligations of the contracting parties and is not intended to provide any authoritative or official legal interpretation.
While every effort has been made to ensure accuracy, UNCTAD assumes no responsibility for eventual errors or omissions in the mapping data. In the event of doubt regarding the correctness of mapping results, users are kindly asked to contact us via the online contact form. International Investment Agreements Navigator.
IIA Navigator International investment agreements IIAs are divided into two types: 1 bilateral investment treaties and 2 treaties with investment provisions. To generate a list of treaties that satisfy a certain option under a mapped treaty element, find the element in the mapping structure and select the desired option e. Once a selection is made, the list of treaties is updated automatically, so that only treaties that correspond to the selected option are listed the resulting number of treaties appears in the orange bar above the listed treaties, which also displays the total number of mapped treaties, e.
If more than one option is selected under the same mapped treaty element, the system displays treaties that correspond to at least one of the options selected i. If more than one option is selected under the same additional filter, the system displays treaties that correspond to at least one of the options selected i. To apply a button in both tabs, click the button in the current tab, then switch to the other tabs and click the button again.
Germany - Pakistan BIT Parties 1. Germany 2. Treaty type Bilateral Investment Treaties. Status In force. Treaty full text en. IIA content Mapped. Reference to right to regulate e. Reference to sustainable development. Reference to social investment aspects e. Reference to environmental aspects e. Scope and Definitions. Definition of investment. Type of definition. Limitations to the definition of investment.
Excludes portfolio investment. Excludes other specific assets e. Lists required characteristics of investment. Contains "in accordance with host State laws" requirement. Sets out closed exhaustive list of covered assets. Definition of investor. Definition included. Specifying natural persons covered. Includes permanent residents. Excludes dual nationals. Specifying legal entities covered.
Includes requirement of substantial business activity. Defines ownership and control of legal entities. Denial of benefits DoB. DoB clause included. Content of the DoB clause. Discretionary "Party may deny" or mandatory "benefits shall be denied". Substantive scope of the treaty. Limiting substantive scope of the treaty. Excludes taxation. Excludes subsidies, grants. Excludes government procurement. Excludes other subject matter.
Temporal scope of the treaty. Investments covered. Applies to both pre-existing and post-BIT investments. Disputes covered. Standards of Treatment. National treatment NT. Type of NT clause. Reference to "like circumstances" or similar.
Most-favoured-nation MFN treatment. Type of MFN clause. Exceptions from MFN obligation. Economic integration agreements. Taxation treaties. Procedural issues ISDS. Fair and equitable treatment FET. Type of FET clause. FET qualified. By reference to international law. By listing FET elements exhaustive or indicative list. FET modifiers. Full protection and security.
Prohibition on unreasonable, arbitrary or discriminatory measures. Scope of measures covered. Refining expropriation clause. Indirect expropriation defined. Carve-out for general regulatory measures. Carve-out for compulsory licenses in conformity with WTO.
Protection from strife. Relative right to compensation comparator. Absolute right to compensation in certain circumstances. Transfer of funds. Includes transfer of funds. Exceptions to the transfer of funds obligation. Balance-of-payments exception.
Other specific exceptions e.
Most of these agreements include an investor-State dispute settlement mechanism, allowing German investors to seek redress for illegal interferences with their investment via international arbitration. This website provides information on the results of past and pending cases involving German investors. Thus, the website includes information on past and pending cases initiated by foreign investors against Germany. Most decisions rendered by investor-State tribunals are publicly available online.
Particularly noteworthy is Investment Treaty Arbitration - run by Professor Andrew Newcombe, this website contains a large number of documents relating to investment disputes. Furthermore, the Digest of International Investment Jurisprudence , another project by the International Investment Law Centre Cologne, provides a systematic collection of statements made by tribunals, sorted by both topics and relevant provisions.
Diese Seite auf Deutsch anzeigen. Fair and equitable treatment FET. Type of FET clause. FET qualified. By reference to international law. By listing FET elements exhaustive or indicative list. FET modifiers.
Full protection and security. Prohibition on unreasonable, arbitrary or discriminatory measures. Scope of measures covered. Refining expropriation clause. Indirect expropriation defined. Carve-out for general regulatory measures. Carve-out for compulsory licenses in conformity with WTO.
Protection from strife. Relative right to compensation comparator. Absolute right to compensation in certain circumstances. Transfer of funds. Includes transfer of funds. Exceptions to the transfer of funds obligation. Balance-of-payments exception. Other specific exceptions e. Prohibition of performance requirements PRs.
Includes prohibition of PRs. Type of PR clause. Umbrella clause. Entry and sojourn of personnel subject to local laws. Senior management nationality. Other Clauses. Directed at States obligation to publish laws and regulations. Directed at investors. Health and environment any mentioning in the text, except preamble. Labour standards any mentioning in the text, except preamble.
Right to regulate any mentioning in the text of this or similar concepts, except preamble. Corporate social responsibility any mentioning in the text, except preamble. Corruption any mentioning in the text, except preamble. Subrogation clause. Investment promotion. Reference to specific promotion activities in text of agreement not preamble.
Essential security exception. Exception included. Exception defined exceptional circumstances described in more detail. Exception self-judging. General public policy exceptions. Public health and environment. Other public policy exceptions e. Prudential carve-out concerns financial measures. Scheduling and reservations in treaty texts and annexes. SSDS included. ISDS included. Alternatives to arbitration. Scope and consent. Scope of claims: general approach chapeau paragraph of ISDS clause.
Limitations to the scope of ISDS. Limitation of provisions subject to ISDS. Exclusion of policy areas from ISDS. Special mechanism for taxation or prudential measures. Type of consent to arbitration. ISDS forum options. Domestic courts of the host State. Other forums.
Relationship between forums. Other specific ISDS features. Limitation period for submission of claims. Provisional measures. Consolidation of claims. Limited remedies specifying available types of remedies. Treaty interpretation. Affirms binding interpretation by contracting parties or their joint committee. Requires certain questions to be submitted to contracting parties renvoi.
Regulates submissions by non-disputing State party. Transparency in arbitral proceedings. Requires documents to be made publicly available. Requires hearings to be open to the public. Regulates amicus curiae submissions by third non-disputing parties. Institutional Issues. Mechanism for consultations between State parties. Institutional framework committee. Treaty Duration, Amendment and Termination.
Treaty duration. Years of initial treaty term. Automatic renewal. Amendment and termination. Unilateral termination. Includes modalities for unilateral termination. Length of notice period.
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