The Court of Justice of the European Union (CJEU) ruled that the Investor-State Dispute Settlement mechanism provided for by the Energy Charter Treaty (ECT) (Article 26(2)c) is not applicable to intra-EU disputes (C-741/19). In the same decision, it also decided that the acquisition of a claim arising from an electricity supply contract does not constitute…

On 12 March 2021, Fangda Partners, ASAFO & CO and Delos Dispute Resolution hosted an interactive roundtable on “The Often-Overlooked Value of African Seats for African-Chinese Disputes”. The panelists for the roundtable discussion were Tunde Fagbohunlu SAN , Julia (Zhang) Le Roux, Michael Tam, Olga Boltenko and Peter Po Kwong Yuen, and it was moderated…

The 18th Annual ITA-ASIL Conference, hosted virtually for a half-day on March 23, 2021, discussed ongoing efforts at ICSID and UNCITRAL Working Group III to reform investment arbitration. José Alvarez (New York University School of Law) kicked off the conference by throwing down the gauntlet: procedural reform does not go far enough. In the long…

Since the COVID-19 outbreak, pharmaceutical companies have engaged in a highly competitive and risky vaccine race. In less than 10 months from the declaration of the global pandemic, the vaccine developed by Pfizer-BioNTech received its first regulatory approval, followed by the success stories of other companies. The swiftness of these results was praised as “unprecedented”…

The Investor-State Dispute Settlement regime is at the centre of a long-standing debate, subsequent reform efforts, and, more in general, great innovation. In this context, on 14 May 2021, a LIDW member-hosted event – organised and co-hosted by Clifford Chance, EFILA, Herbert Smith Freehills, Queen Mary University’s School of International Arbitration, and White & Case…

Introduction On April 1st, the new Government Procurement Act (“GPA”) came into force (Law n. 14,133/2021). The new Act brings many positive changes to the processes of tendering and bidding conducted by state entities. Its legal provisions intend to bring greater legal certainty for those who want to invest in large projects in Brazil led…

On November 26, 2020, the #YoungITATalks session took place with the participation of representatives from government offices of different countries: Mairée Uran Bidegain (Chile), María Paula Arenas Quijano (Colombia), Cindy Rayo Zapata (Mexico) and Ricardo Ampuero Llerena (Peru). All panelists are or, at some point, were responsible for organizing and preparing the defense of States…

No doubt, the Energy Charter Treaty (ECT) has become the hottest topic in the investment treaty arbitration world. Not only are EU Member States the most frequent respondent in ECT disputes – for example, the Netherlands has recently received its first ECT claim – but the ECT itself is currently in the middle of a…

Much has been written – on this page and elsewhere – about the future viability of investor-state arbitration based on intra-EU BITs in the aftermath of the CJEU’s Achmea decision. In the authors’ view, the May 2020 Termination Agreement concluded between 23 of the 27 EU Member States with the intention to terminate existing intra-EU…

Negotiations on the Investment Protocol of the African Continental Free Trade Area (AfCFTA) are set to start later this year. An AfCFTA Investment Protocol would provide significant opportunities for African countries. However, the negotiations will be complex, taking place amidst a backdrop of existing African international investment agreements (IIAs) already negotiated at the bilateral and…

The years since 2017 have witnessed a global trend of tightening foreign direct investment (FDI) screening processes. Major economies, including the United States, Germany, France, the United Kingdom, and the European Union have moved towards stricter FDI rules. In all of these cases, security concerns and, in particular, the need to protect cutting-edge technologies against…

Serafín García Armas and Karina García Gruber v. Venezuela and Clorox Spain v. Venezuela are different in many aspects. García Armas relates to dual nationality, while Clorox relates to protected investment. However, they have a common feature: Article 1(2) of the Spain–Venezuela BIT was key to their developments. That article defines investments as “any kind…

In less than a decade, the Republic of Côte-d’Ivoire enacted two investment laws (2012 and 2018). The latter one recently amended, reflects the best practices the country has learned from its previous investor-states disputes. On December 18, 2019 the Council of Ministers introduced some amendments to the 2018 Investment Code related inter alia to VAT…

On March 25, the European Commission issued a set of guidelines addressed to Member States, concerning foreign direct investment (FDI) from third countries and the protection of European critical assets. In face of the current crisis caused by the outbreak of Covid-19, the European Commission calls upon Member States to make full use of their…

The Paris Court of Appeal has recently sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on the interpretation of the Energy Charter Treaty (ECT) in the ongoing Republic of Moldova v. Komstroy case.   A 20-Year-Old Tale The Republic of Moldova v. Komstroy case highlights the contradicting approaches to…

COVID-19: Background and Impact on Foreign Investment in the Developing Countries As discussed on the Blog previously, the number of confirmed cases of COVID-19, the disease caused by the virus named SARS-CoV-2, continues to rise globally, as shown on this page from the WHO. Today, the virus has already spread in Western Europe and the…

In a decision likely to enthuse investors willing to enforce intra-EU ICSID awards in the UK, the UK Supreme Court unanimously held yesterday that the UK’s enforcement obligations under the ICSID Convention could not be affected by the EU duty of sincere co-operation (in this case, the question of whether the award obtained by the…

In 2013 Mexico embarked on a major energy reform by amending its Constitution, thereby allowing the participation of private investors in the exploration and extraction of oil & gas and the generation of electricity, particularly from clean and low-cost energy sources. Subsequently, Certificates of Clean Energy (“CELs“) were introduced on 31 October 2014 to promote…

The growing public interest in investment treaties and investor-State dispute settlement has prompted an increasing number of States to open to public view aspects of investment treaty negotiations. During the negotiation of the Transatlantic Trade and Investment Partnership (‘TTIP’), for example, both the European Union and the United States sought to ‘maximise’ transparency in the…

The Vienna Convention rules for treaty interpretation (VCLT) routinely referred to by all international courts and tribunals are known to be the result of a compromise between different schools of interpretation and therefore notoriously flexible, in my view too flexible for the purposes of modern-day international dispute resolution. Cases are therefore won and lost according…

It is well settled in the practice of ICSID tribunals that the general rule of treaty interpretation embodied in Article 31(1) of the Vienna Convention on the Law of Treaties (“Vienna Convention”) applies to the interpretation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”). While…

Investor-State Dispute Settlement (ISDS) is facing significant opposition in its current form. Whilst some parties are engaged to find new common ground, others have unilaterally implemented measures aimed at ousting investor-state arbitration altogether. Over time, more and more attention has been paid to the International Centre for the Settlement of Investment Disputes (ICSID) and its…

The numerous interpretations of the Full Protection and Security Standard (“FPSS”) have complicated the findings of tribunals for many years. A number of tribunals have found that this standard applies only to physical protection. Meanwhile, other tribunals have extended this standard to cover all types of protection from physical to legal and commercial. Also, more…

Introduction The fourth annual Harbour Lecture took place on 21 October 2019, with hundreds of attendees packed into the Eaton Club, Hong Kong to hear a thought-provoking lecture delivered by Sophie Lamb QC, global co-chair of the international arbitration practice at Latham & Watkins. The theme of this year’s lecture was whether arbitration is sustainable….