Last week the hearing on jurisdiction and liability in an arbitration between Bilcon of Delaware et al. and the Government of Canada was streamed live on the website of the Permanent Court of Arbitration (‘PCA’). One of the most disputed issues between the parties in this case is the meaning and the scope of the…

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…

Transparency of investment treaty arbitration is back on the radar this week as delegations convene in Vienna for the latest meeting of the UNCITRAL Working Group II on Arbitration and Conciliation. While governments debate the scope and content of new transparency obligations, one issue that has received less attention is a sometimes-seen corollary of greater…

Monday’s New York conference on “Arbitration with States and State Entities under the ICC Rules” got me thinking about the possibility of amicus submissions in investment cases before the ICC or other institutions beyond ICSID. A few musings: Are amicus debates likely to arise in the ICC context? The answer is yes. Although most ICC…

Mandatory research and development investment requirements (hereinafter ‘R&D Requirements’) may be prohibited under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’). A decision in Mobil Investments Canada Inc. and Murphy Oil Corporation v. Government of Canada (‘Mobil v. Canada’) is highly anticipated after a U.S. website leaked the fact that Canada had lost…

The Obama Administration’s only current regional trade negotiations, the Trans-Pacific Partnership (TPP), continue slowly toward a possible conclusion in 2013, with 12 rounds of negotiations having been completed as of the end of May 2012. A major element of a re-energized American focus on political, security and economic considerations in Asia, the TPP if it…

On March 11, 2001, The New York Times published an article entitled “Nafta’s Powerful Little Secret; Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say.” It began, ominously: “Their meetings are secret. Their members are generally unknown. The decisions they reach need not be fully disclosed.” Over the ensuing decade, while NAFTA Chapter Eleven…

Investment treaty provisions that allow joint decisions by States Parties to override or control arbitral tribunals’ interpretations of investment treaty standards scarcely appear in international investment agreements. The recently released 2012 United States Model BIT is a rare example. The 2012 version carried over Article 30(3) of the 2004 United States Model BIT, enabling States…

The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Martinus Nijhoff Publishers, 2012) has just shipped. I am the (proud) editor and a contributor of the book and am delighted to have the opportunity to bring it to the attention of this group. I think it will be of special interest to arbitration practitioners….

As we approach the first anniversary of the UK Supreme Court’s landmark decision in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, it is only fitting that we would encounter a case which would cause us to revisit the issue of the proper standard of…

This article provides a brief background on the provision allowing for non-disputing State Party participation under Chapter Ten of the Dominican Republic – Central America – United States Free Trade Agreement (CAFTA-DR), specifically Article 10.20.2, including the relationship between non-disputing State Party submissions and the transparency provisions of CAFTA-DR as well as the implementation of…

Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010. If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all…

Three different investors, with three different claims, in three different situations, have recently been in the news. All three disputes have a Canadian connection. Two involved claims by foreign investors against Canada, one that settled and one that Canada defeated. The third involves a claim by a Canadian investor against the Democratic Republic of Congo….