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…

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…

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…

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…

Every now and then the arbitration society witnesses the filing of investor-state disputes in fields previously ‘unharmed’ by the spotlight of investment adjudication. Perhaps the most recent example is the ‘hydraulically fractured’ shale gas dispute against Canada (see Lone Pine v. Canada). In a similar manner, the Vattenfall II dispute over Germany’s nuclear phase-out has…

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…

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…

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…

It has been over two years since the DC Circuit Court of Appeals (“Circuit Court”) vacated an award in a bilateral investment treaty arbitration (BG Group PLC v. Republic of Argentina (UNCITRAL)) concluding that the panel did not have authority to adjudicate the dispute because the claimant had not satisfied a pre-arbitration requirement, namely, litigating…

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…

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…

Foreword For centuries people have searched for the formula which may give them more gold. It may turn out that some investors have found it. As it will be explained, indirect investments through a chain of intermediary companies hides the risk of multiplication of claims and double recovery. But not according to the tribunal in…