Just like many of us have learned to work remotely these past few months, those leading the efforts to reform international arbitration have also had to endure the constraints imposed by the pandemic. At the first-ever virtual ITA-ASIL conference, held on 24 June 2020, Professor Chiara Giorgetti from the University of Richmond School of Law…

The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host…

In the absence of a uniform standard of compensation under the Energy Charter Treaty (“ECT”), tribunals have been tasked with filling the gap and have done so by exercising an important margin of appreciation for the assessment of damages. Such wide discretion has resulted in divergent approaches in assessing damages. Since the first ECT decision,…

The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…

Throughout this week, our contributors from around the globe have offered insights into the USMCA/CUSMA/T-MEC, which enters into force next week. Our contributors have contextualised USMCA against both regional and global developments. Many of them noted the link between USMCA and NAFTA, between USMCA and regional politics, and between USMCA and broader global trends related…

Reforms Are Afoot Calls for investor-State dispute settlement (“ISDS”) reform have catalyzed efforts to evolve the regime. Concurrently, the ISDS system continues to wrestle with tensions between an investment regime primarily oriented towards protecting investor rights, and the human rights normative architecture for protection of individual rights and associated State obligations for protection of such rights. ISDS…

Whenever litigating against states or sovereign entities – or international organisations for that matter – outside of their home jurisdiction there is a roadblock to consider: immunities. On closer inspection, immunities turn out as two roadblocks: immunity from jurisdiction and immunity from enforcement. Whereas the general assumption is that an agreement to arbitrate waives immunity…

On 25 January 2020, India and Brazil signed an investment agreement  (the “India-Brazil BIT”). As an agreement that has been signed at the dawn of the new decade, it is symbolic for a few reasons. First, it is a south-south agreement between two large and growing economies. Second, it abandons investor-state arbitration in favor of…

A cursory reading of the mandate of Working Group III reveals that the discussion at UNCITRAL of ISDS (Investor-State Dispute Settlement) reform focuses only on procedural aspects of dispute settlement under investment treaties and excludes any substantive aspects. However, the topic of respondent states’ counterclaims, albeit procedural in itself, is so inextricably intertwined with substantive…

Ahead of the thirty-ninth session of UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), the General Assembly Secretariat issued a note on issues to be considered on the topic of security for costs and frivolous claims. Averting frivolous claims has been a recurring topic in the ISDS debate over the past years, not least in…

One of the topics on the agenda of UNCITRAL Working Group III is the establishment of an Appellate Court system. The system of investor-State dispute resolution therefore now faces the fact that WG III is considering, among other matters, the following: the repeal of local law governing the setting aside of an UNCITRAL award giving…

Arbitrators under the Crossfire While investor-state dispute settlement (ISDS) was created with the purported goal of depoliticizing investment disputes, it is currently at the centre of heated political debates. Investment arbitration follows the commercial arbitration paradigm, with disputing parties playing a direct role in the composition of the tribunal. This is perceived as a tool…

During its last resumed 38th session which took place in Vienna from 20–24 January 2020 the UNCITRAL Working Group III discussed in parallel three reform alternatives, based on the notes prepared by the Secretariat. These alternatives suggested the creation of: (i) a stand-alone review or appellate mechanism; (ii) a standing multilateral investment court (MIC); and/or…

Next week was due to be the 39th session of the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III, and its sixth session considering the issue of reform to investor-State dispute settlement (‘ISDS’). The session has since been postponed indefinitely, in light of the current global COVID-19 pandemic. In lieu of Working…

Last month, ICSID published a further Working Paper (WP4) linked to its ongoing reform process, by which it is considering a series of amendments to the ICSID and ICSID Additional Facility Rules. The Working Paper is the fourth in a series of working papers, preceded by Working Papers 1 (August 2018), 2 (March 2019), and…

“Recourse to arbitration has now become a right of the competent ministry with the agreement of the Ministry of Finance. Whereas recourse to arbitration was previously an exception, now, this is a clear confirmation by the government of the importance of arbitration and the government’s commitment to participate in more rapid, cost-effective litigation.” – Saudi…

Consolidation of arbitral proceedings is commonly regarded as a procedural device designed to deal with the challenges associated with complex cases. It is a method that combines multiple proceedings and harmonizes the final outcome of the disputes that bear significant resemblance, thus eradicating the risk of having contradictory awards rendered on a closely related set…

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…

2019 has seen a series of important arbitration-related developments for Australia, New Zealand and the Pacific. This post highlights selected key arbitration developments in these States from the past 12 months. It focuses on several domestic arbitration law reform efforts and on important developments in respect of investor-State arbitration.   Domestic Arbitration: Legal Developments and…

Introduction On 8 May 2019, the Arbitration Amendment Act 2019 (the Amendment Act) came into force.  It amends the Arbitration Act 1996 and is a much watered-down version of the original proposal.  The Amendment Act makes three changes: (i) the insertion of a new waiver sub-clause in Article 16 of Schedule 1 of the Arbitration Act (which…

Introduction: the Arbitration Amendment Act 2019 Arbitration law reform is often portrayed in terms of relentless progress towards enlightenment: towards greater party autonomy, increased efficiency, reduced judicial interference, and more certain enforcement. In important areas of arbitral law and practice, that is an accurate narrative: the acceptance of the principles of Kompetenz-Kompetenz and separability, for…

On 13 November 2018, ICSID will present its new proposed amendments at a major conference in London. This round of amendments aims, among other things, to modernize the ICSID procedure based on case experience, simplify the rules, and make the process increasingly time and cost effective while maintaining due process and a balance between investors…