A plethora of business transactions today have evolved into complex structures of multi-faceted sub-transactions. Multiple parties enter into several distinct, yet interconnected and interdependent agreements towards achieving a common commercial goal. Every so often, however, one or more of these interconnected agreements will lack an arbitration agreement; whereas the others will contain similar/related arbitration clauses….

Recent events such as the NAFTA re-negotiations have drawn leading newspapers around the world to turn their attention to ISDS tribunals. Often in an effort to make their stories sensational, they speak of “obscure tribunals,” “secret trade court,” and “justice behind closed doors,” most of the time giving it an unfair and biased image. In…

Mexico held its general elections (including presidential election) on July 1st. The Government of the country has shifted from a center-right president, Enrique Peña Nieto from the Partido Revolucionario Institucional (Institutional Revolutionary Party), to the favorite candidate for the recent elections, the left-wing politician Andrés Manuel López Obrador (“AMLO”). AMLO, a member of the Movimiento…

Introduction Security for costs is a controversial territory in international arbitration, especially in investment arbitration. On one side is the respondent State which seeks security for defending a claim with the taxpayers’ resources. However, on the other side, there is the claimant who might become financially incapable of accessing justice if it is asked to…

State Responsibility for State Organ’s Conduct The fact that a state can be held liable for its organs’ conduct is part of a wider notion that sees states as responsible for their internationally wrongful acts. This notion was codified in the ILC Articles of State Responsibility. Article 1 states that “every internationally wrongful act of…

Based on the panel discussion moderated at the 30th Annual ITA Workshop and Annual Meeting, with panelists Lorraine de Germiny, Robert Landicho, and Laura Sinisterra.   While there are more than 3,000 international investment agreements (IIAs), the majority of them fail to provide guidance as to how issues of human rights and environmental protection should…

Also reporting: Chuba Nwokedi (Association for International Arbitration), Mateusz Rys (University of Antwerp), Maryam Salehijam (Ghent University), Anmol Sheth (Association for International Arbitration), Arthur Van Den Bossche (University of Antwerp), Antonia Zydek (University of Strathclyde) It has long been said that investment treaty arbitration is at crossroads. This is probably most true within the European…

The first half of the year has been a rollercoaster when it comes to BITs and ISDS, in particular in Europe. Several developments at various levels can be distinguished with one common denominator: for better or for worse, the European Union (EU) and EU law have become one of the key drivers in shaping international…

On 26 May 2018, the Ninth Investment Arbitration Forum took place at the Juridicum of the University of Vienna jointly organized by Prof. Irmgard Marboe of the University of Vienna, Adriana San Román and Herfried Wöss of Wöss & Partners and ICC Austria. The topic of this year’s forum was “Valuation of Damages in Changing…

In the first part of this article, we discussed the problems of balancing an investor’s intellectual property rights with the sovereign right of a State. Now, we look at how Philip Morris v Uruguay has added to the debate. In 2010 Philip Morris challenged two measures adopted by the government of Uruguay: (1) a “single…

The constructive framework of ISDS was intended to promote investment and growth through the establishment of a stable and predictable atmosphere for investment. However, some have argued that this purpose has been warped to allow a small group of private individuals to rule on public matters. Arbitrations such as CMS v Argentina, Tecmed v Mexico,…

Without the rights and protections of a treaty, a foreign investor who suffers a wrongful act at the hands of a host State traditionally has no legal standing to pursue an international claim against that State. Instead, the investor must rely on the diplomatic intervention of its home State to protect the investor’s interests—a corollary…

Over the past two months, the judgment by the Court of Justice of the European Union (“CJEU”) in Slovak Republic v Achmea BV, hereinafter referred to as “Achmea”, has created much discussion among arbitration practitioners. Its reasoning and implications have already been addressed in several Kluwer Arbitration blog posts, available here, here and here. The…

The explosive development of IT companies offering social platforms (social networking and instant messaging applications) over the past years has gifted us with many tools that we now use on a daily basis. Facebook, LinkedIn, Instagram, What’s App, Skype, Telegram and many others services help us to stay in touch with people all around the…

International arbitration claims are oftentimes bedevilled with the contention that the claimant invoked the option to arbitrate much too early. Sometimes, this contention is no more than a lawyers’ artifice utilised to delay advancing arbitral proceedings. Yet, quite commonly, this contention is true in some cases. In my experience, I have identified a number of…

Consistent decision-making has been an ongoing concern in the way arbitrators approach the issue of treaty shopping and indirect expropriation. The article of Ozlem Susler and Therese Wilson, “Restoring Balance in Investor State Dispute Settlement: Addressing Treaty Shopping and Indirect Expropriation Claims and Consistent Approaches to Decision-Making” , explores two of the apparent concerns of…

[I]t is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. If you sought to distil [the connection between ISDS’s transparency and legitimacy] to a single point, it would be that transparency is a necessary condition of…

The world after the  Achmea v Slovakia decision focuses on the question about the future of ISDS in relation to intra-EU BITs. At the ASIL conference on the 6 April 2018, a representative of the EU observed the decision in the Achmea case as one that was perhaps a natural consequence of the intricacies of…

In the midst of the second edition of the Paris Arbitration Week, Jeantet hosted, on Thursday 12 April 2018, a roundtable on the topic “Arbitrating with States in CEE & CIS”. The speakers of the roundtable were: Cosmin Vasile (Zamfirescu Racoti & Partners), Yas Banifatemi (Shearman & Sterling), Davor Babić (University of Zagreb), Yasmin Mohammad…

After three high-value infrastructure and energy projects cases at ICSID and the Permanent Court of Arbitration, Bosnia and Herzegovina (“BiH”) is now facing a new US$40 million investment treaty claim. This time it involves the privatization of an insurance company – Krajina osiguranje a.d. Banja Luka, based in the Republic of Srpska (one of the…

In the context of the backlash against investor-state dispute settlement (“ISDS”), one of the main criticisms is the asymmetric nature of investment treaties, which impose numerous obligations on the States, but do not seem to hold corporations accountable for the social, environmental and economic consequences of their activities. Some recent developments reflect a redirection away…

Cruising around investment cases against the Caribbean islands is not only a recreational journey.  It is also an informative one.  This article aims at presenting key observations made during this journey. As mentioned in a previous publication, since 1973, the sovereign islands of the Caribbean Sea, have concluded over 140 international investment agreements.  The ICSID…

The CJEU judgement issued in the much-discussed (here and here) C-284/16 Slovak Republic vs. Achmea case has every chance of becoming a game changer in the field of the investment protection regime within the EU. Where does that leave the protection of investors within the EU? The message of the CJEU to those who welcomed…

On 6 March 2018, the Court of Justice of the European Union (“CJEU”) in the case no. C‑284/16 Slovak Republic v. Achmea BV (“Achmea case”) (available here) stated that arbitration agreements concluded between the Member States of the European Union (“EU”) in the so-called intra-EU BITs have an adverse effect on the autonomy of EU…