Denial of Benefits Clause
Loukas Mistelis, Crina Baltag
- Investment, territorial element — Control — Denial of benefits clause — ECT (Energy Charter Treaty) — Burden of proof
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 ‘Denial of benefits’ clauses, while having gained substantial popularity in the past ten prolific years of Investor-State Dispute Settlement (‘ISDS’), are not a common or typical presence in most traditional International Investment Agreements (‘IIAs’), be it in the form of Bilateral Investment Treaties (‘BITs’) or in the form of Free Trade Agreements (‘FTAs’). The United Nations Conference on Trade and Development (‘UNCTAD’) Investment Policy Hub lists 215 IIAs containing a ‘denial of benefits’ clause out of a total number of 2,572 mapped IIAs. 2 This paper...