It has been a distinct honour to serve as the Editor-in-Chief of the Journal over the last seven years. In my first editorial, I was commenting on the remarkable evolution that the field of international arbitration has undergone in the last forty years both in terms of practice and scholarship. Arbitration’s evolution has intensified during…
This is the fifth consecutive year that we, either together or separately, have reported on trends at the intersection of human rights and international investment arbitration from the prior year (see prior Blog coverage, here, here, here, and here). As we emphasized last year, developments at this intersection continue directional trends from prior years, but also the aperture for…
This is the fourth consecutive year that we, either together or separately, have reported on trends at the intersection of human rights and international investment arbitration from the prior year (see prior Blog coverage, here, here, and here). As we emphasized last year, developments at this intersection continue directional trends from prior years, but also converge across both…
Civilization is a progress from an indefinite, incoherent homogeneity toward a definite, coherent heterogeneity. Henry Spencer International arbitration professionals are a strikingly homogenous population, as our recent 360 degree overview demonstrated. The demographic markers typically used to arrive at this conclusion are age, race, gender and national origin. While these fundamental indicators merit continued…
As set out in our last blog post on evidentiary issues in international arbitrations, the treatment of evidence within the field of international arbitration is oftentimes inconsistent and even unpredictable from one arbitral tribunal to another, a divide which becomes even more pronounced when considering the different approaches that may be adopted due to a…
Generally, the choice of substantive law applicable to a particular contract will affect the outcome of a case. It is common, however, for the evidentiary and interpretive rules to also have important implications for a case’s outcome. Arbitral rules leave such matters to a tribunal’s discretion that can be exercised in different ways. For instance,…
This is the third consecutive year that we, either together or separately, have reported on trends at the intersection of human rights and international arbitration from the prior year (see prior Blog coverage here and here). As we emphasized last year, the effects of the COVID-19 pandemic on this intersection are likely to remain a…
Globalization has diversified the actors, institutions, norms, and instruments on the international legal stage. With diversification comes increased specialization and, in turn, organization around so-called regimes. The notion that international legal regimes can exist autonomously has long been refuted; indeed, each regime draws from general international law to some degree. If regimes are not autonomous,…
Calls for investor-State dispute settlement (“ISDS”) reform have persisted for some time (see blog coverage here). Competing calls for retaining the status quo, modifying the system, or abandoning the system altogether have each gained traction. With a drastic increase in the number of investment cases being brought, accompanied by the “mega” awards, the international community…
It will come as no surprise to the readers of this blog that the ongoing COVID-19 pandemic has had a significant impact on international arbitration (see blog coverage here). In this post, we take a look back at 2020 to consider the intersection of the pandemic, investment, and human rights. In February 2020, one of…
For a long time, the word ‘environment’ occurred in the realm of arbitration only when disputes between parties had some connection to it. Lately, however, there has been a shift from environment only being a subject-matter specific issue in arbitrations to a more diverse theme of discussion among the global arbitration community. Credit for this…
In this post, we discuss some of the challenges created by the personal jurisdiction requirements under U.S. law (explained below) in enforcement of foreign arbitral awards in the U.S. We also delve into details of hurdles posed by the implementation of the personal jurisdiction standard as enunciated in Daimler AG v. Bauman to recognition and…
Reforms Are Afoot Calls for investor-State dispute settlement (“ISDS”) reform have catalyzed efforts to evolve the regime. Concurrently, the ISDS system continues to wrestle with tensions between an investment regime primarily oriented towards protecting investor rights, and the human rights normative architecture for protection of individual rights and associated State obligations for protection of such rights. ISDS…
On 25 January 2020, India and Brazil signed an investment agreement (the “India-Brazil BIT”). As an agreement that has been signed at the dawn of the new decade, it is symbolic for a few reasons. First, it is a south-south agreement between two large and growing economies. Second, it abandons investor-state arbitration in favor of…
In an industry which thrives on lofty ideals of amicable dispute resolution and open debate, it is startling to observe that the environmental impact involved in the conduct of international arbitrations has received little attention. This is not to suggest that the international arbitration community has completely ignored the issue, but the focus has been…
On 22 March 2019, the Netherlands published its new model BIT (“2019 Dutch Model BIT”). The new model text may well set the scene for a new generation of investment treaties, paving the way with progressive rules on sustainable development and gender empowerment. The 2019 Dutch Model BIT is a refined version of the initial…
