The session on International Investment Disputes of the LIDW 2019 was divided in three panels discussing the hot topics in investment law and the Investor-State Dispute Settlement (ISDS) system: investment protection post-Achmea, interim measures, security for costs, emergency arbitration procedures, and transparency in investment arbitration, as well as the wider issue of ISDS reform. The…

Despite the variety of investment treaty disputes involving assets in the Post-Soviet jurisdictions in Central Asia, assessment of damages in each particular case is often heavily debated by the parties, experts and tribunals. In many instances, selecting an appropriate valuation method is the cornerstone of the tribunal’s decision-making on damages. This article provides an overview…

Reform of Investor-State Dispute Settlement (ISDS) system has become the focus of various initiatives of different international organizations and groups in the past years. Currently, there are various developments taking place at various levels of the ISDS system. For example, (i) the new generation of international investment treaties—in particular, the new Free Trade Agreements signed…

The signing of the Indonesia-Australia Comprehensive Economic Partnership Agreement (“IACEPA“) on 4 March 2019 marked an important milestone for both States (as covered in a post earlier this week). Given that both Indonesia and Australia have their reservations on investor-state dispute settlement (“ISDS“) processes, it is interesting to see that the IACEPA contains a chapter…

Last month, Australia and Indonesia signed the Indonesia-Australia Comprehensive Economic Partnership Agreement (‘IA-CEPA’), containing in Chapter 14 provisions related to the protection of foreign investments. Negotiations of an IA-CEPA were initially announced in 2010, and formally began in September 2012. The negotiations were thereafter suspended, but relaunched in March 2016. Signature and ratification of the…

The conference “What to Do About Corruption Allegations? Debating the Options for Investment Law”, was presented by the ILA American Branch Investment Law Committee and the Georgetown International Arbitration Society, and hosted at Dechert LLP’s Washington D.C. office on 19 February 2019. The conference was dedicated to an in-depth exploration of the proof required for…

The OECD Secretariat launched, in 2018, a “FDI qualities project”. Its objective is to provide governments with a tool kit to attract investment that contributes as much as possible to sustainable development. For that purpose, the project has identified five clusters of “FDI qualities indicators”: productivity-innovation, skills, job quality, gender, and carbon footprint. These indicators…

Most investment treaties do not expressly provide for the appointment of assistants or secretaries to the arbitral tribunal. It is an institutional practice that has been subsequently codified by several arbitral institutions, while some institutions are still silent on the subject. Despite the significant attempts being made, the apprehension that arbitral secretaries may overstep their…

Introduction The Delhi High Court’s recent judgment in Union of India v. Khaitan Holdings (Mauritius) marks the third instance of an Indian court adjudicating upon issues related to arbitration under an international investment treaty. Within these three judgments, courts have fundamentally disagreed on a crucial point – the applicability of the Arbitration and Conciliation Act,…

The year of the pig was off to a good start in Hong Kong at the Investor-State Dispute Settlement (ISDS) Reform Conference organised by the Hong Kong Department of Justice and the Asian Academy of International Law on 13 February 2019. Like the fabled pig, ISDS reform has been slow in coming, and the aim…

Overview On 11 February 2019, Beijing Arbitration Commission/Beijing International Arbitration Center (‘BAC/BIAC’) launched its draft of ‘Beijing Arbitration Commission/Beijing International Arbitration Center International Investment Arbitration Rules’ (the ‘BAC Rules’) for public comments, comprised of its main text and six appendixes. The BAC Rules are the second investment arbitration rules promulgated by a Chinese international arbitration…

On 22 November 2018, the Belgian Ministry of Foreign Affairs, Foreign Trade and Development Cooperation hosted a High Level Event on the Reform of Investment Protection. Distinguished panellists from arbitral institutions, international organisations, academia, civil society, arbitration users and legal practitioners presented diverse views on the need for reform of the system of investor-State dispute…

The CERSA (CNRS- University Paris II Panthéon-Assas) organized its third event in a series of seminars on selected topics in international investment law and investor-state dispute settlement (ISDS) (for the report of the first seminar, see here). The seminar on Topical issues in ISDS: EU Investment Law was held in Paris on 7 February 2019…

At the heart of the debate surrounding Investor-State Dispute Settlement (ISDS) Reform is UNCITRAL Working Group (WG) III.  Until two years ago, WG III was dedicated to discussing issues surrounding online dispute resolution.  But in 2017, in response to several significant awards against states in investment arbitration and corresponding public outcry, the WG III was…

On 22 November 2018, the Belgian Ministry of Foreign Affairs, Foreign Trade and Development Cooperation hosted a High Level Event on the Reform of Investment Protection. Distinguished panellists from arbitral institutions, international organisations, academia, civil society, arbitration users and legal practitioners presented diverse views on the need for reform of the system of investor-State dispute…

Introduction On 14 December 2018, an ICSID committee issued a decision on annulment of the award of Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17 (“Suez 03/17”) in which it declined to uphold the application for annulment from Argentina. This…

Foreign Direct Investment into Africa has increased from $10 billion in 1999 to $41,8 billion in 2017. Makhtar Diop, former World Bank Vice President for the Africa Region, pointed out that “Intra-African investment is also on the rise, creating a virtuous circle”. ICSID statistics also show that the number of newly registered cases involving African…

As an arbitration hub, Hong Kong has an enviable pedigree. The territory boasts a modern workable arbitration law, robust legal system, and a cohesive arbitration community. It is routinely ranked highly in indices of economic freedom; judicial independence; and perceived arbitration friendliness. In the Year of the Dog, Hong Kong’s authorities and institutions have continued…

Over the last couple of decades, arbitration, its practical aspects, but also its very notion, have faced severe attacks from a variety of critics: politicians, members of civil society, users, etc. While arbitration practitioners are actively tackling many areas of reform, the majority of these denunciations appear, for the most part, biased and overly simplistic….

In recent years, a number of arbitral tribunals adjudicating treaty-based investment disputes have been confronted with the question of what to do when the state party to such a dispute alleges that the investors acquired the investment through corrupt means. In some instances, tribunals have applied the defense as a jurisdictional bar, preventing the investors…

Last year was a busy one for arbitration practitioners in Australia and New Zealand, and 2019 looks set to be even busier. In 2018, both countries initiated a range of arbitration reforms, initiatives and negotiations which give insights into the likely general direction of travel for both countries in the coming year. This post focusses…

Young ITA has organised over fifteen successful events this year all over the world including in Sao Paolo, Buenos Aires, Guatemala City, Miami, Washington DC, New York City, London, and India. The first Dubai Young ITA talk took place on Wednesday 5 December 2018. The event hosted by Vinson & Elkins featured two panel discussions…

Very rarely would a single arbitration-related decision produce as significant an impact as the judgment of the Court of Justice of European Union (“EU” and “CJEU” respectively) in the Achmea case did during 2018. We should not doubt that Achmea will remain a cornerstone issue in the world of arbitration for a long period of…

In 2013, China proposed to jointly build the “Belt and Road” Initiative. While the international investment agreements (“IIAs”) proposed to be concluded with China and its counterparties along the “Belt and Road” will provide a robust source of potential investor protections, they must be easily understood among investors, states, and international tribunals. IIAs, as the…