Introduction This short note briefly touches upon two enforcement issues pertaining to third-party funding in international arbitration, one more ventilated than the other. It is hoped that our comments on these issues will be perceived as an insightful contribution to an already ignited debate, with the caveat that we provide for a discussion rather than…

New Zealand now officially opposes investor-state dispute settlement (ISDS), thanks to the election of a new centre-left Labour-led coalition government that took office in October 2017. In a post-Cabinet press conference on 31 October, Prime Minister Jacinda Adern announced that: “We remain determined to do our utmost to amend the ISDS provisions of TPP. In…

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 first publicly available decision issued under the international arbitration process provided for under the Accord on Fire and Building Safety in Bangladesh (‘Bangladesh Accord’) (note that Roger Alford previously summarized the Bangladesh Accord’s dispute resolution clause here) was issued through the 4 September 2017 Decision on Admissibility Objection in Industrial Global Union and Uni…

Third-party funding remains a hot topic in arbitration, which is understandable considering its complexity and that its accompanying issues often have major implications for arbitral procedure. This fall, the ICCA-Queen Mary Task Force on third-party funding in international arbitration released its “draft,” touching upon a number of contemporary issues vis-á-vis third-party funding, all of which…

After the US election, it was a certainty that in my inbox every morning there was at least one, if not more, email with a discussion on the future of arbitration in our changing society today. And this debate has continued in halls of university law schools to GAR events to law firm seminars. I…

Recently, it was reported that after 14 years since Zimbabwe had illegally evicted Dutch farmers from their farms, it finally agreed to pay the damages awarded under the ICSID award, which dates back in 2009. In the Funnekotter et al case, the arbitral tribunal rejected Zimbabwe’s necessity defence, which was based on the claimed need…

In December 2015, I published an article examining whether there was a trend towards the elimination of umbrella clauses from investment agreements, be they bilateral, multilateral, or model investment treaties. By that time, model bilateral investment treaties (BITs) from the United States, France, Canada, Colombia, and the Southern African Development Community (SADC) and many prominent…

The year 1993 saw a significant political transition in Cambodia through the adoption of democratic principles and free market economy. Since then, many legal reforms have been made in order to attract foreign direct investment, and one of which is providing a legal framework for protecting the investment. To date, the Kingdom has signed a…

The below continues and concludes a two-part post about the Spanish renewable energy cases which have been concluded to date, in particular, the apparently contradictory Eiser and Isolux awards, the former of which was decided in May 2017 and the latter, which (although decided in July 2016) only became public in June 2017.  Part I…

In furtherance of European and national policy directives, Spain enacted in the early years of this century a series of decrees to regulate the production of electricity from renewable sources and provide incentives to producers. In particular, by Royal Decree 661/2007, a generous, production-based remuneration subsidy in the form of a feed-in-tariff (FIT) was put…

As in García-Marquez’s novel, the denunciation of the Ecuadorian bilateral investment treaties (“BITs”) represents a chronicle of a death foretold and the Ecuadorian National Assembly and Ecuador’s President have taken one of the final steps to terminate them. Along the way, the internal termination proceedings have been highly politicized, international investment arbitration has been demonized,…

The recent mention of “judicial economy” in the award in Eli Lilly and Company v. Government of Canada provides an opportunity to consider judicial economy in investor-state arbitration more generally. In its award of March 16, 2017, the Eli Lilly tribunal determined that certain judicial interpretations of Canada’s patent law did not violate the substantive…

In October 2016, the ICSID advised the Member States of the ICSID Convention that it was beginning the fourth amendment process since the enactment of the definitive ICSID Arbitration Rules in 1967. The first amendment to the Rules took place in 1984 and mainly referred to the possibility to resort to national courts for provisional…

As reported in the excellent piece by Alejandro López Ortiz and Gustavo Fernandes in “A Year of Legal Developments for International Arbitration in Latin America”, Bolivia may have taken a step back in State arbitration with the passing of its new act on arbitration in 2015. The article remarks the limitations to arbitrability introduced by…

In early March 2017, the Singapore High Court released a judgment in which it considered an important question of enforcement of investor-state awards. In Josias Van Zyl v Kingdom of Lesotho [2017] SGHCR 2, AR Pereira was asked to decide whether an order to enforce a final award in a treaty dispute administered by the…

NAFTA on the tightrope One of President Donald Trump’s most frequent campaign promises was to “eliminate” the North American Free Trade Agreement (“NAFTA”), which he described as “the worst trade deal maybe ever signed anywhere, but certainly ever signed in this country.” He then softened his tone and stated that he would renegotiate the treaty,…

Newspapers, cable television shows, and Twitter are abuzz with claims of “fake news.” Within the past two weeks alone, the U.S. President accused his predecessor of wiretapping his office building, apparently in reliance upon reporting in online news media. More traditional news outlets have responded with innuendo that the Director of the U.S. Federal Bureau…

Much ink has recently been spilt on the Investor State Dispute Settlement (“ISDS”) system, especially in the light of the Comprehensive Economic and Trade Agreement (“CETA”), and the Transatlantic Trade and Investment Partnership (“TTIP”) (summary of criticism recently collected by G. Kaufmann-Kohler, M. Potesta, at 10, available here). The existence of a potential overlap and…

Investment obligations and investor-State arbitration provisions normally have been negotiated under bilateral investment treaties (BITs), or, more recently, in the larger context of free trade agreements (FTAs). For investment provisions, the movement from BITs to FTAs recently has taken an additional, significant step: the negotiation of such provisions in the even larger context of mega-regional…

In recent weeks, criticism of the TPP has been increasingly focused on the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. Massachusetts Senator Elizabeth Warren initiated the charge against the TPP’s ISDS mechanism, and her attacks were recently supported by more than two hundred economists and law professors, who addressed a letter to…

In recent weeks, it has become clear that the latest lightning rod for TPP criticism is the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. With Massachusetts Senator Elizabeth Warren leading the charge in this new fight, and a recent letter circulated to members of Congress by more than two hundred economists and…

In the past two to three years the critics of investor-to-state dispute settlement (ISDS) have been tremendously successful in setting up an effective propaganda, which has managed to scare and misinform the general public, media, and politicians. This propaganda has not only turned around once pro-ISDS countries like Germany, The Netherlands and France, but has…