“The problem with money,” wrote the American poet and philosopher Ralph Waldo Emerson, “is that it costs too much.” This may soon ring all too true for some investment treaty arbitration claimants and the third parties that seek to fund their claims. Recent developments suggest that there may be support – albeit embryonic – for…

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…

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.1) This post is a summary of the first panel discussion of the Young ITA Roundtable, 30th Annual ITA Workshop and Annual Meeting: Multiple Proceedings, Multiple Parties, and International Arbitration: What…

Like a chronicle of a death foretold, the  systematic denunciation by Ecuador of the Bilateral Investment Treaties (“BITs”) signed with various states formally began in 2009.  Although, the origin of the complaints goes back to 2008, when the current Constitution of the Republic of Ecuador was enacted and specifically forbid the execution of any 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,…

That investor state tribunals may deal with allegations of corruption in ISDS disputes is well acknowledged. The seminal World Duty Free1) World Duty Free Company Limited and The Republic of Kenya, ICSID Case No. ARB/00/7 (Award dated 4 October 2006). decision involved the payment (in a briefcase) of USD$2 million dollars cash to (the then)…

Introduction Pursuant to Article 47 of the ICSID Convention, an ICSID Tribunal may “recommend any provisional measures which should be taken to preserve the rights of either party”. The use of “recommend” is concerning. Its lack of imperative character triggers a debate on whether ICSID provisional measures have legally binding effect, i.e. require mandatory state…

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.1) Case Concerning the Barcelona Traction, Light & Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3,…

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” ,1)Published in CIArb’s Academic Journal: International Journal of…

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…

This post gives a bird’s eye view of an   imminent investment arbitration and forecasts procedural and/or jurisdictional hurdles to the case, by analyzing the dispute resolution provision and relevant precedents, with the intention of highlighting recurring inconsistencies on a key procedural issue and urging for more predictable outcomes for the benefits of the stakeholders in…

Principles of adverse inferences are applied universally. International law endorses the arbitrator’s inherent authority to draw adverse inferences against a party for unjustified non-compliance with an order to produce information. Moreover, arbitrators can rely on general principles of law when applying adverse inferences as a basis for decisions. The general principle of good faith imposes…

On the second day of the ICCA Sydney 2018 Congress, two separate panels considered ‘Arbitrations Involving Public Bodies and Public Interest Salient Issues’. The first panel, moderated by Professor Stavros Brekoulakis (Queen Mary University of London) focused on ‘the Increasing Participation of Public Entities in International Arbitration.’ The panel comprised of Marie Talašová (Government of…

The morning session of the last day of the ICCA Sydney 2018 Conference on “Potential of Arbitration Involving New Stakeholders” was moderated by Ndanga Kamau and had the insightful contributions of Dr. Campbell McLachlan QC, Prof. Makane Moïse Mbengue and Silvia Marchili. Ndanga Kamau opened the final plenary session by asking the following question: why…

The afternoon session of the second day of the ICCA Sydney 2018 Conference on “New Voices” was moderated by Monty Taylor and had the insightful contributions of Jawad Ahmad, Lucas Bastin, Samantha Lord Hill and Solomon Ebere. Monty Taylor opened the session by noting that not only was this a new initiative for ICCA, but…

The panel on Arbitration Challenged Part I: Reforming Substantive Obligations in Investment Treaties and Conditions of Access to Investment Arbitration, at ICCA Sydney 2018 Conference, was moderated by Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (Canada) and had contributions from speakers Christophe Bondy, Cooley LLP (Canada); Max Bonnell, White…

In the midst of challenges to the very legitimacy of Investor-State Dispute Settlement (ISDS), the International Centre for Settlement of Investment Disputes (ICSID) celebrated its 50th anniversary and embarked on the fourth ICSID Rules amendment process in ICSID history. The previous amendment processes brought notable additions to the ICSID Rules, such as enhanced transparency in…

Introduction The two main reasons why countries generally agree to sign bilateral or multilateral investment treaties (BITs or MITs) are to attract foreign direct investments, while at the same time protecting their own citizens’ investments abroad by reducing political risk. Arguably, there might be multiple added values on top of these reasons for a specific…

Chapter 11: Where Investors Go to Complain NAFTA renegotiations began last year and, with attention once again on this 23-year old trade deal, critics are taking the opportunity to voice their concerns. U.S. President Trump has himself propounded, and indeed campaigned on, an abundance of criticism directed at NAFTA. While no part of NAFTA has…

Debates about the propriety of investor-state dispute settlement (ISDS) were revived by a recent letter by U.S. academics, which urged the abandonment of ISDS in the renegotiated North American Free Trade Agreement (NAFTA). This letter repeated arguments that are familiar from prior ISDS debates, such as that ISDS “grants foreign corporations and investors rights to skirt domestic…

The Opinion delivered on 19 September 2017 by Advocate General Wathelet in the case C-284/16 Achmea has already been widely commented on in the international arbitration community. The views are either critical or approving, but so far, they have mostly been focused on whether a particular legal point made by the Advocate General was right…