In preparation for the 42nd session of the UNCITRAL Working Group III (“Working Group”) in February 2022, the UNCITRAL Secretariat issued a note on “Standing Multilateral Mechanism: Selection and Appointment of ISDS Tribunal Members and Related Matters” (“Note”), dated December 8, 2021. The Note builds on several Working Group reports that addressed the selection and appointment…

The OIC Investment Agreement (the “Agreement”), a multilateral instrument among certain members of the Organization of Islamic Cooperation, remains a potent tool for investment protection within the bloc. This post surveys developments concerning the Agreement since the authors’ last updates in late 2019 and 2020. In particular, the post provides an update on the ongoing…

On January 13, 2023 the Sandra Day O’Connor College of Law at Arizona State University hosted the 5th annual Schiefelbein Global Dispute Resolution Conference.  Like previous iterations of this conference, the innovative program featured top lawyers, internationally recognized mediators, academics, and leaders of arbitration institutions discussing timely issues in international dispute resolution. This year’s conference…

In November 2022, a contract-based arbitral tribunal issued an anti-arbitration injunction with the aim of enjoining parallel investment treaty proceedings between the parties. This post examines this injunction – which was ignored by the investment-treaty tribunal – and its implications.   Background In March 2020, Patel Engineering Limited (“PEL”), an Indian-incorporated infrastructure and construction service…

On 30 November 2022, the Hong Kong International Arbitration Centre (along with the British Institute of International and Comparative Law) organised the 2022 Kaplan Lecture. The lecture was delivered by Robert Spano – a former President and Judge of the European Court of Human Rights (ECtHR) – and focussed on the new frontiers faced by…

A study published in 2012 revealed that only 15 arbitrators decided 55% of the 450 investor-State dispute settlement (ISDS) cases reported at that time, most of them practitioners from Europe, USA or Canada. This was the case despite the fact that parties from all over the world were involved in those proceedings. To date, according…

Investor-State dispute settlement (ISDS) has been widely criticized for being a tool in the hands of multinational companies, used to challenge domestic public policy measures even when legitimately adopted in the public interest. Critiques have been notable concerning the asymmetrical nature of international investment agreements (IIAs). While IIAs were concluded to afford protection to foreign…

International Law Weekend (“ILW”), held at Fordham Law School in New York City between October 20-22, 2022, celebrated the centennial anniversary of the American Branch of the International Law Association with a program entitled “The Next 100 Years of International Law.”  It brought together a wide variety of engaging panels and events to explore current…

In the last two decades, the Permanent Court of Arbitration’s (PCA) overall docket has seen a rapid growth in mixed arbitrations between States and private parties. Today, over 180 arbitrations are currently pending before PCA tribunals, of which more than 100 are investor-State disputes brought under bilateral and multilateral investment treaties and national investment laws….

The current era of emergencies, which includes climate change, environmental challenges, armed conflicts, and health crises, has a profound impact on foreign direct investment (FDI). A panel held on 27 September 2022 as part of the second edition of the World Arbitration Update (WAU) engaged with the effect of such global emergencies on international investment…

The theme of this year’s ICCA Congress was “Arbitration’s Age of Enlightenment?”, a reference to the Scottish Enlightenment, an age in which the old order was challenged, and new ideas led to innovation in several fields. The ICCA Programme Committee’s formulation of the Congress theme as a question rather than a statement is telling: its…

On the third day of Hong Kong Arbitration Week 2022, HKIAC hosted a panel as part of the ADR in Asia Conference entitled “Beyond Mere Greenwashing? The Impact of ESG on International Arbitration”. This panel brought together a group of specialists who discussed what environmental, social, and governance (“ESG”) is, how it impacts dispute resolution,…

India’s Parliamentary Committee on External Affairs (the “PCEA”) recently submitted two reports to the Parliament relating to bilateral investment treaties (“BITs”). The first report –submitted in December 2021 – contained a broad review of India’s engagement with BITs and made several recommendations. The second report – submitted in July 2022 – took note of the…

On August 5, 2022, the Tribunal hearing the Bacilio Amorrortu v. The Republic of Peru case issued its Partial Award on Jurisdiction, upholding the State’s objection that Mr. Amorrortu did not provide a valid waiver as required by the “No U-Turn Clause” established in article 10.18.2 of the United States – Peru Trade Promotion Agreement…

After a gala evening at the National Museum of Scotland filled with Scottish gastronomy and ceilidh dancing, delegates returned to the conference centre for the last day of the ICCA Congress. Renaissance Arbitrator This panel asked: “what can lawyers and arbitrators learn from disciplines outside the law and arbitration?”. That question is particularly timely as…

International arbitration has been regarded as a flexible and efficient dispute resolution mechanism. While this may hold true for most phases of the arbitration, document production (i.e., the phase where a party requests the other party to produce documents that are in the other party’s possession and are relevant to the dispute and material to…

On 29 June 2022, an ICSID Tribunal composed of Alexis Mourre, Luis González García and Adolfo Jiménez issued its Final Award in the case brought by Alejandro Diego Díaz Gaspar, a Spanish national, against Costa Rica. The majority of the Tribunal ultimately found minor breaches of the underlying Costa Rica-Spain Bilateral Investment Treaty (the “Treaty”)…

Negotiations towards a modernized Energy Charter Treaty (ECT, Treaty) ended on 24 June 2022, with the States Parties reaching an agreement in principle following discussions towards reform that began in November 2017. While the final text of the modernized Treaty has not yet been published, the Secretariat of the ECT in June issued a public…

The New York International Arbitration Center’s (“NYIAC”) annual Grand Central Forum took place on 13 July 2022. The event coincided with the 55th session of the United Nations Commission on International Trade Law (“UNCITRAL”) held in New York which, among other topics, focused on the recent fourth draft of the joint ICSID-UNCITRAL Code of Conduct…

This question of first impression under the United States-Mexico-Canada Agreement (USMCA) has been brought to the fore with the spring 2022 publication of the Request for Arbitration (“Request”) submitted by TC Energy Corporation and TransCanada PipeLines Limited against United States (dated November 22, 2021) and the Notice of Intent (“Notice”) submitted by Alberta Petroleum Marketing…

The Spanish Cases Saga illustrates the arduous task of balancing the host state’s right to regulate and an investor’s economic interests. This post summarizes the tribunal’s reasoning in Novenergia v. Spain and Stadtwerke München v. Spain regarding FET breaches in the energy sector. The post argues that the latter case adopts a clearer analysis of…

Following the Russian military invasion of Ukraine, dozens of states imposed sanctions against Russia. In response, Russia imposed or threatened to impose severe countermeasures on foreign investments associated with such “unfriendly states”. In this regard, several news outlets reported that Russia is in the process of implementing legislation that will interfere with foreign investments in…

States have spent the last decade and a half rebalancing the design of their international investment agreements (IIAs). In their new-generation IIAs, states have clarified core protective standards, omitted controversial clauses, and inserted new carve-outs and general exceptions. These reformed treaties, it was hoped, would provide investment tribunals with “new analytical devices for adjudicating disputes…

Two years since it was published, the draft of the Code of Conduct for Adjudicators in International Investment Disputes is still subject to discussion and refinement by States and other stakeholders participating in the UNCITRAL Working Group III (WG III). This evolving instrument, developed jointly by the ICSID and UNCITRAL Secretariats, is the first attempt…