Investment protection

Arbitral Award, Arbitration Institutions and Rules, BIT, Enforcement, India, Investment, Investment Arbitration, Investment protection

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and Sapna Jhangiani, Clyde & Co. and Joseph P. Matthews J.D., University of Miami School of Law for Young Arbitration Practitioners It has been some time since the White Industries Australia Limited v Republic of India judgment was rendered against India in 2011. However, there remain several interesting aspects of the case still not widely…

Annulment, ICSID Arbitration, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor

(International Moot Court Competition Association (IMCCA))/ /7 Comments

and Oleg Temnikov Foreword The recent decision on preliminary objections, dated 17 January 2014, against the application for annulment in Elsamex S.A. v. Honduras (ARB/09/4) brought renewed interest in the procedure for summary dismissal of unmeritorious claims under Rule 41(5) of the ICSID Arbitration Rules. The present post examines shortly this procedure as well as…

Arbitration Awards, BIT, Enforcement, ILC Articles on State Responsibility, Investment protection

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The keynote speaker at this year’s ITA Annual Workshop was the Honorable Bernardo Sepúlveda-Amor. Judge Sepúlveda-Amor is Vice President of the International Court of Justice and a professor of international law at El Colegio de México. He has previously served on the United Nations International Law Commission, as Mexico’s Secretary of Foreign Affairs, and as…

Investment agreements, Investment Arbitration, Investment protection, Investor, Turkey

(Curtis, Mallet-Prevost, Colt & Mosle LLP)/ /Leave a comment

Although Turkey has ratified the ICSID Convention as early as in 1988, it was not until the recent decade that its domestic law recognized the possibility to resort to arbitration against the State. Until 2000s, disputes arising between a public authority and a private party were to be resolved in an appeal to administrative courts…

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

(D'Empaire Reyna, Abogados)/ /1 Comment

Over the years Latin American countries have played an increasingly relevant role in the International Centre for Settlement of Investment Disputes (the “ICSID”), with the highest proportion – 27% – of all cases handled by the Centre. Despite the high percentage these same countries have been increasingly expressing their dislike about having to resolve their…

Arbitration Proceedings, BIT, Foreign Investment Law, Investment, Investment Arbitration, Investment protection, Venezuela

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Linklaters

Apropos of a recent decision in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30), this post discusses the potential underlying concerns an arbitral tribunal may consider when deciding whether it can revise earlier decisions within the context of fragmented proceedings. Background The ICSID proceedings in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30) commenced in November 2007…

BIT, Expropriation, Fair and Equitable Treatment, Fair market value, ICSID Convention, International Court of Justice, Investment, Investment Arbitration, Investment protection, Investor, Permanent Court of International Justice

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and Oleg Temnikov I. Foreword At the end of 2013, the Financial Times reported that a referendum will be held in Berlin on the question whether the State shall take over power supply from the hands of Vattenfall. We use this as an occasion to examine the legal implications in the field of investment arbitration…

ICSID Convention, Investment Arbitration, Investment protection, Jurisdiction of the arbitral tribunal, UNCITRAL Arbitration Rules

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Hogan Lovells

By Carmen Núñez-Lagos and Javier García Olmedo In an award rendered on 31 January 2014, an arbitral tribunal constituted under the UNCITRAL Rules declined jurisdiction over the claims brought by one of two claimants against the Plurinational State of Bolivia on the basis of the application of a denial of benefits clause in the US-Bolivia…

BIT, ICSID Convention, Investment protection, Trans-Pacific Partnership

(Clyde & Co. LLP)/ /2 Comments
Clyde & Co.

By Beth Cubitt and Tom French The proposed Trans-Pacific Partnership Agreement (TPPA) – a multi-lateral agreement proposed between a number of countries, currently including Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States and Vietnam (although it is hoped to be an open platform welcoming other countries to participate) – is currently the subject of…

Burden of proof, Corruption, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor

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Factual background On 4 October 2013 the Tribunal constituted under Metal-Tech Ltd.’s claim against Republic of Uzbekistan (G. Kauffman-Kohler, C. von Wobeser, J. Townsend) issued the award on jurisdiction in the ICSID case ARB/10/03. The peculiar factual background of the case has been previously discussed here. The approach taken by the Tribunal in this case…

Consent, Corruption, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Israel

(University of Alberta Faculty of Law)/

On 4 October 2013, an ICSID tribunal rendered its decision in the investment treaty dispute between the Israeli company Metal-Tech Ltd. and Uzbekistan. In the award, the tribunal found that it lacked jurisdiction to hear the parties’ claims and counterclaims brought under the Israel-Uzbekistan BIT and Uzbek law due to corruption related to Metal-Tech’s investment…

BIT, Europe, Investment Arbitration, Investment protection

(Perréard de Boccard)/ /Leave a comment

Last year at about the same period, I reported on two major events that had been taking place in the world of Intra- and Extra-EU BITs, the Regulation establishing transitional arrangements for bilateral investments agreements between Member States and Third Countries, on the one hand, and the Electrabel decision, on the other. See blog of…

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

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The “contribution of assets” requirement of the Salini test was often overlooked by commentators and tribunals, probably due to its “I-know-it-when-I-see-it” nature. The recent award in KT Asia Investment Group B.V. v Republic of Kazakhstan, however, demonstrates that a failure to meet the contribution requirement may put to rest a claim of an offshore company…

BIT, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor, UNCITRAL Arbitration Rules

(LAWIN)/ /1 Comment

and Rapolas Kasparavičius, LAWIN An abundant number of agreements have been and will be concluded between states and investors operating under the bilateral investment regime and even a larger number of negotiations will fail before reaching the final stage of signature. An investor may spend large sums of money with the aim of concluding an…

ASEAN, Asia-Pacific, Enforcement, International arbitration, Investment protection, New York Convention

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By Jelita Pandjaitan and Steven Pettigrove of Linklaters, and Nicola Nygh of Allens Linklaters. On 15 July 2013, Myanmar formally acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).  The New York Convention obliges Myanmar’s Courts to give effect to contractual provisions which provide for…

Investment Arbitration, Investment protection, Transparency in investment arbitrations, Treaty

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Readers of this blog may be interested to know of an opportunity to participate in the creation of a forthcoming special issue of Transnational Dispute Management (TDM), entitled “Reform of Investor-State Dispute Settlement: In Search of A Roadmap.” Co-edited by myself (Arnold & Porter LLP and Georgetown University Law Center) and Anna Joubin-Bret (Cabinet Joubin-Bret…

Asia-Pacific, Investment protection, Trade, Trans-Pacific Partnership, United States

(University of Arizona James E. Rogers College of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

“America’s important security alliances across the Pacific need an economic underpinning.”  Ambassador Robert Zoellick, May 1, 2013 To use one of the Obama Administration’s favorite terms, the entry of Japan in April 2013 into the three-year-old Trans-Pacific Partnership (TPP) negotiations later this year is a “game-changer.”  Prior to Japan’s commitment as the 12th TPP partner,…

BIT, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection

(International Moot Court Competition Association (IMCCA))/ /1 Comment

and Oleg Temnikov I. Bureau Veritas v. Republic of Paraguay In the recent Further decision on objections to jurisdiction dated October 9, 2012 the tribunal in Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Paraguay (ICSID Case No. ARB/07/9) dismissed BIVAC’s claim based on violation of the fair and equitable standard by reasoning…

BIT, ICSID Convention, International Law, Investment, Investment agreements, Investment Arbitration, Investment protection, Jurisdiction, Treaty Shopping

(International Moot Court Competition Association (IMCCA))/ /1 Comment

Akbar the Great once drew with his royal hand a line in the sand. He then told his wise men that if they wanted to keep their jobs, they must invent a way to make the line shorter without touching any part of it. Wise man after wise man approached the line and stood in…

Africa, Arbitration, Arbitrators, Investment protection

(Lazareff Le Bars)/ /Leave a comment

Over the past decade, Africa has emerged as a leading center of economic growth. From mining and manufacturing, to banking and telecoms, nearly every industry is witnessing rapid expansion in Africa, driven by both African enterprises and businesses from around the world. Naturally, an increase in international commerce has resulted in an attendant increase in…

Foreign Investment Law, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection

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In an earlier post, I’d highlighted five notable legal highlights from 2012. Below, and somewhat belatedly, I offer my post-mortem on some key policy developments from 2012. 1. Venezuela and South Africa beat a retreat Venezuela’s exit from ICSID was perhaps the most visible policy story of 2012. The move could bolster the caseload of…

Asia-Pacific, Foreign Investment Law, Investment, Investment Arbitration, Investment protection, Legislation

(Mishcon de Reya)/ /Leave a comment

On 2 November 2012, President Thein Sein approved, after several months of intense debate between Parliament and the Government, Myanmar’s new Foreign Investment Law (‘FIL’ or ‘the Law’).  The new Law revises the framework for foreign investment in Myanmar which had been in place since a military coup in 1988. Considering the country’s abundant natural…

CAFTA, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, NAFTA, Trans-Pacific Partnership

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As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context. Threats to Public Interest Policy For a growing array of…

ICSID Convention, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection, Trans-Pacific Partnership

(Public Citizen)/ /1 Comment

Trans-Pacific Partnership (TPP) negotiations have become the territory where a brewing perfect storm over investor-state dispute resolution (ISDR) is making landfall. The June 2012 leak of the draft TPP Investment Chapter text added energy, but much more is fueling this tempest. In general the ISDR system is coming under increased scrutiny. Public and policymaker concerns…