Investment protection

Australia, Expropriation, Investment, Investment agreements, Investment protection, ISDS, TPP, Trans-Pacific Partnership, Uruguay

(Allende & Brea)/ /Leave a comment

by Nahila Cortes, American University Washington College of Law Much is being said about the Trans-Pacific Partnership Agreement (“TPP”), the landmark free trade agreement signed by twelve States accounting for 40% of the world trade. Chapter 9, the investment chapter, is an important provision which applies to investors (i.e. a national or company of a…

Ad hoc arbitration, BIT, Dispute Resolution, Investment Arbitration, Investment protection, Investor, ISDS, Jurisdiction, Jurisdiction of the arbitral tribunal, Uncategorized

(Australian National University)/ /Leave a comment

As Mariel Dimsey has observed, a key challenge posed by investment treaties is that – at the point of ratification – they expose States to arbitrations of ‘as-yet-unknown scope and against as-yet-unknown claimants’. Gus van Harten and Martin Loughlin argue that this feature differentiates investment disputes from those heard in other fora, transforming investment disputes into something akin to ‘domestic judicial review of state conduct’….

Arbitration, BIT, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, ISDS

(WongPartnership LLP)/ /1 Comment
YSIAC

“ISDS” (short for “investor-state dispute settlement”) was a less-known acronym some years back. Now, it has been given an increasingly bad name, no doubt fuelled by Vattenfall’s claim against Germany following the shutting down of its nuclear plants after the 2011 Fukushima disaster, tobacco giant Philip Morris’ high profile claims arising from Australia’s plain-labelling laws,…

BIT, Investment, Investment Arbitration, Investment protection, Investor, Poland

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It is not unusual that a foreign investor is put in a situation where the investment has not been infringed yet and no damage has been caused, but an infringement is very likely to happen. The investor is then often left without any available domestic recourse, which is particularly true as regards general legislative measures….

Fair and Equitable Treatment, Investment Arbitration, Investment protection, Investor, Legitimate Expectations

(University of Vienna, Faculty of Law, Section for International Law and International Relations )/ /2 Comments

It comes as no surprise to those familiar with investment treaty law to see the concept of legitimate expectations continuously refined by case law. One of the facets of legitimate expectations, which is most often the topic of intensive debate in the investment treaty arbitration arena, is the analysis of the extent to which representations…

Expropriation, Good Faith, ICSID Arbitration, Investment Arbitration, Investment protection

(D'Empaire Reyna, Abogados)/ /Leave a comment

The Dissenting Opinion of Georges Abi-Saab to the Decision on Jurisdiction and Merits of September 3, 2013 in the case ConocoPhillips, Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30 (hereinafter the “Dissenting Opinion”), raises the issue of whether there is a duty to…

BIT, Investment agreements, Investment Arbitration, Investment protection, Trade, Trans-Pacific Partnership, Transatlantic Trade and Investment Partnership

(Peking University School of Transnational Law)/ /2 Comments
Institute for Transnational Arbitration (ITA)

Given the existence of thousands of international investment agreements, the international investment law regime has been described as “complex and confusing,” “highly fragmented,” and “characterised by overlaps and incoherence”. Two key developments, however, are contributing to the harmonization of that regime. First, a set of major agreements is being negotiated by many of the world’s…

Brazil, Investment agreements, Investment Arbitration, Investment protection, ISDS, Recognition and enforcement of arbitral award

(University of California, Berkeley)/ /Leave a comment

On May 26, 2015, Brazil signed its third investment treaty of 2015 with Mexico. Given the agreements previously signed with Angola and Mozambique, this certainly comes as a confirmation of a new Brazilian attitude towards the regulation of foreign investment. The instrument mostly follows the same model used for the previous two: a Cooperation and…

Arbitration, Energy, Energy Charter Treaty, Investment, Investment Arbitration, Investment protection, Investor, Italy, Russia

(Stockholm University)/ /Leave a comment

No doubt that the last three years have been quite busy for the Energy Charter Treaty (ECT) and for the Energy Charter Conference. The number of investor-state arbitration cases under Article 26 of the ECT doubled in this time span, going from thirty known cases to sixty-eight (as reported on the website of the Energy…

Arbitration, Investment Arbitration, Investment protection, Investor, Mediation

(Washington and Lee University School of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The University of Virginia’s Spring 2014 symposium focused on the topic of international development. One panel focused on the role of international politics in the context of international dispute settlement. With the mandate to examine elements related to both politics and development, I was asked to explore outcomes in investment treaty arbitration (ITA) as a…

European Law, European Union, Investment, Investment Arbitration, Investment protection

(White & Case LLP)/ /Leave a comment

The Higher Regional Court Frankfurt (OLG Frankfurt) has recently strengthened the efficiency of parties’ wills embodied in arbitration agreements. In a crucial decision (OLG Frankfurt am Main, 26 Sch 3/13, Ruling, 18 December 2014), the judges have added clarity to the practical problem of how to resolve friction between an increasingly dense net of treaty…

BIT, CETA, Germany, Investment, Investment agreements, Investment protection, Investor, Transatlantic Trade and Investment Partnership

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /2 Comments
Institute for Transnational Arbitration (ITA)

Germany’s position on international investment law and investor-State arbitration is attracting increasing attention since the signing of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) in September 2014 has been deferred, inter alia, because of opposition from Sigmar Gabriel, Germany’s Federal Minister for Economic Affairs and Energy. Is Germany, the country that not only has…

BIT, Investment Arbitration, Investment protection, Res Judicata, Settlement

(Herbert Smith Freehills)/ /Leave a comment

What are the effects of a settlement agreement between the locally incorporated company and the host state on the foreign shareholder’s pending BIT claim? Two views have emerged under investment treaty arbitration case law. The first view, adopted in Sempra v. Argentina (ICSID Case No. ARB/02/16) and Hochtief v. Argentina (ICSID Case No. ARB/07/31) decisions, holds…

BIT, Foreign Investment Law, Human Rights, ICSID Arbitration, International arbitration, Investment Arbitration, Investment protection, State Responsibility for Damage, Transatlantic Trade and Investment Partnership, Treaty Interpretation, UK

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A recent seminar delivered under the Chatham House Rule considered the usefulness of an analogy between Investment Treaty Arbitration (ITA) and domestic public law, with a view to critiquing perceived imbalances in the former. The content of the seminar was grounded in the speaker’s background in ITA and public law litigation including domestic judicial review…

BIT, Energy Charter Treaty, European Commission, European Law, European Union, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, ISDS

(NL-Investmentconsulting)/ /1 Comment

The Inaugural Conference of the European Federation for Investment Law and Arbitration (EFILA) took place on Friday, 23 January 2015, in the Senate House of the Queen Mary University of London. 160 participants ranging from academics, arbitrators, arbitration institutions, companies, lawyers to NGOs reviewed a full day long the EU’s first 5 years of European…

BIT, European Court of Human Rights, Investment, Investment protection, Investor, Lis Pendens

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Although a bilateral investment treaty (“BIT”) arbitration and an application made before the European Court of Human Rights (“the Court”) could, at first glance, present opposite objectives, investors alleging a violation of their rights by a State may be inclined to make use of both remedies. As it will be elaborated below, the case law…

Investment, Investment Arbitration, Investment protection, Investor, Transatlantic Trade and Investment Partnership

(Baker Botts LLP)/ /Leave a comment

That was the assessment of Constantine Partasides QC, founding partner of Three Crowns, during his keynote address to the joint ITA-IEL conference. According to Mr. Partasides, there is a developing consensus among states that it is acceptable, and even virtuous, to challenge investor-state arbitration as an infringement on the rights of the public to pass…

Ad hoc arbitration, Annulment, Arbitral Award, Arbitral seat, Arbitration Awards, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection, Public Policy

(Baker & McKenzie)/ /Leave a comment

In one of the very rare decisions issued by courts in the Arab world applying the provisions of the Unified Agreement for the Investment of Arab Capital in the Arab States (the “UAIAC”), the Cairo Court of Appeal has revived in its decision dated February 5, 2014, the principle of finality of arbitration awards, by…

ICSID Arbitration, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor

(Max Planck Institute for Comparative Public Law and International Law)/ /4 Comments

Paraphrasing Churchill, investment arbitration is the worst form of foreign investment dispute resolution, except for all the others. Post-Suez, governments are more civilised than to employ gunboat diplomacy for their own investors, and local courts are inherently partial. Achieving neutrality is the objective, and the only means: investment arbitration. This is the conventional wisdom for…

ICSID Arbitration, ICSID Convention, International Court of Justice, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Treaty, Treaty Interpretation, Vienna Convention on the Law of Treaties

(Tribe Arbitration and St Mary's University)/ /Leave a comment

One of the recurrent controversial issues in the investment arbitration practice relates to the application of the general rule of treaty interpretation of the Vienna Convention on the Law of Treaties in the interpretation of the provisions of the ICSID Convention and of investment treaties in general. Thomas Wälde in one of his last writings…

ICSID Arbitration, ILC Articles on State Responsibility, Investment, Investment Arbitration, Investment protection, Investor, Moral Damages

(University of the Pacific, McGeorge School of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Let’s get this straight: When awarded to persons, including foreign investors, moral damages are compensatory in nature. They are not discretionary. They are not symbolic. They are not exemplary. They are not punitive. Rather, as the commentary to the ILC Draft Articles 36 and 37 on State Responsibility notes, “[c]ompensable personal injury encompasses not only…

Australia, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor

(University of Sydney & Williams Trade Law)/ /Leave a comment

Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration). India announced a review in 2013, partly in the wake of the successful claim from an Australian mining investor, although the impact in practice is hard to discern or predict – especially under the…

Exhaustion of Local Remedies, International Law, Investment, Investment Arbitration, Investment protection, Investor, NAFTA

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

In its Award on Jurisdiction and Admissibility, a unanimous tribunal in Apotex, Inc. v. United States dismissed a Canadian manufacturer’s claims that the United States judiciary had violated NAFTA by mis-applying a regulatory time period. Most of the reaction to Apotex has focused on the tribunal’s decision that the claimant’s activities in the United States—and…

ICSID Arbitration, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Latin America

(Pinheiro Neto Advogados)/ /Leave a comment

Investment arbitration is a crucial and sensitive dispute-resolution method, notably because the treatment given to foreign investment matters may materially affect the economic and social realities of a country or region, particularly those in development. In the last decade, however, as already reported and addressed in this blog by, among many others, Vanessa Giraud and…