Applicable Law, Arbitral Tribunal, Arbitration, Arbitration Awards, Investment agreements, Investment Arbitration, Uncategorized

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At a conference a few years back, a well-known and respected arbitrator was speaking on the topic of predictability and consistency of arbitral decision making in investment treaty arbitration.  The arbitrator asked whether arbitrators should fly solo or in flocks.  He made a strong and persuasive case for the independence of the arbitrator, to fly…

Arbitration, Arbitration Institutions and Rules, BIT, Class arbitration, International arbitration, Investment agreements, Investment Arbitration, Investment protection

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International arbitration has long played an important role in resolving disputes that arise out of political and economic crises.   “Arbitration in Times of Crisis” is the theme of the 9th Annual ITA-ASIL Conference on 28 March 2012 in Washington, D.C. (see program).   The conference will focus on lessons from the past use of arbitral mechanisms…

Arbitration Agreements, Arbitration Institutions and Rules, Arbitration Proceedings, BIT, Class arbitration, Due process, Foreign Investment Law, ICSID Convention, Investment Arbitration

(University of Victoria Faculty of Law)/ /1 Comment

With the release of the Dissenting Opinion in Abaclat v. Agentina, we now have the benefit of a forceful critique of the majority’s decision that the Abaclat Tribunal has jurisdiction to hear the claims of over 60,000 Italian investors against Argentina under the ICSID Convention and the Argentina-Italy BIT.  Professor Georges Abi-Saab’s Dissenting Opinion (the…

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, arbitrators’ conduct, Bias, BIT, Class arbitration, Due process, Efficiency, Foreign Investment Law, Investment agreements, Investment Arbitration, Investment protection, Public Policy

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In its 4 August 2011 Decision on Jurisdiction and Admissibility, the majority of the Tribunal in Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic affirmed that it had jurisdiction to hear the claims of over 60,000 Italian investors against Argentina arising out of Argentina’s default on various sovereign…

Appointment of arbitrators, Arbitration Institutions and Rules, Arbitration Proceedings, BIT, ICSID Convention, Investment Arbitration, Venezuela

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The four most recent ICSID disqualification decisions (Universal Compression v. Venezuela, OPIC Karimum v. Venezuela, Tidewater v. Venezuela and Urbaser v. Argentina) have unanimously rejected applications to disqualify arbitrators on ICSID tribunals.  This post addresses an issue raised in three of the most recent decisions—disqualification based on repeat appointments by the same party or counsel—and…

BIT, Confidentiality and Transparency, Foreign Investment Law, Investment agreements, Investment Arbitration, Investment protection, Transparency in investment arbitrations

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The OECD-hosted Freedom of Investment (FOI) Roundtable is in the process of finalizing a statement regarding the role of international investment in supporting the realization of countries’ green growth objectives.  The draft statement entitled “Harnessing Freedom of Investment for Green Growth” (Draft Statement) and three draft background consultation papers (Draft Papers) are available on the…

BIT, Foreign Investment Law, Investment Arbitration, South America, Venezuela

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Two ICSID tribunals have now weighed in on the much-debated question of whether Art. 22 of Venezuela’s Foreign Investment Law provides Venezuela’s consent to ICSID arbitration. In Decisions on Jurisdiction dated June and December 2010, the Mobil and Cemex tribunals (both presided by the former president of the ICJ, Judge Gilbert Guillaume), rejected investors’ submissions…

Investment Arbitration, Investment protection, Public Policy, Responsibility of States

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On 31 August 2010, a group of over 35 academics (not including the current author), published a Public Statement on the International Investment Regime (Statement).  The preamble to the three-page Statement outlines why the Statement has been issued: We have a shared concern for the harm done to the public welfare by the international investment…

Arbitration Awards, BIT, Investment Arbitration, Jurisdiction

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The 14 July 2010 Award in Saba Fakes v. Turkey (Fakes) is notable because it expressly disapproves of the approach taken by the Tribunal in Phoenix Action v. Czech Republic, which found in its 15 April 2009 Award that good faith and legality are jurisdictional requirements for access to ICSID arbitration. Fakes is a welcome addition to…

Arbitration Agreements, BIT, Investment Arbitration, Investment protection

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27 June 2010 marks the 20th anniversary of investment treaty jurisprudence.  On 27 June 1990, the tribunal in Asian Agricultural Products Ltd. v. Sri Lanka (ICSID Case No. ARB/87/3) (AAPL) dispatched its final award to the parties.  The AAPL tribunal (Dr. Ahmed Sadek El-Kosheri (President), Professor Berthold Goldman and Dr. Samuel Asante) was the first…

Investment Arbitration

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UNCTAD’s most recent note on investment treaty arbitration (Latest Developments in Investor-State Dispute Settlement, IIA Issues Note No. 1 (2010)) provides a useful overview of the growth in investment treaty arbitration and the major jurisprudential developments in 2009.  According to UNCTAD, the total number of known investor-state cases under investment treaties stood at 357 at…

Arbitration Agreements, Arbitration Proceedings, Investment Arbitration

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The principle of good faith arises in investment treaty arbitrations in various contexts. Tribunals, of course, regularly refer to Article 31(1) of the Vienna Convention for the rule that treaties shall be interpreted in good faith. Tribunals have noted that states must perform their treaty obligations in good faith. References to good faith occur in…

Arbitration Proceedings, Investment Arbitration, South America

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In this blog I return to the theme of investor misconduct, albeit in a different context from my previous posts:  host state criminal investigations during investment treaty arbitration proceedings.  This issue has arisen in a number of recent investment treaty arbitrations, most notably in a series of cases against Turkey (Cementownia, Europe Cement and Libananco),…

Arbitration Proceedings, Arbitrators, Energy Charter Treaty, International Courts, Investment Arbitration

(University of Victoria Faculty of Law)/ /3 Comments

I have always found the submission of expert legal opinions on matters of international law to investment treaty tribunals rather odd.  Why are expert opinions needed and what is their status?  To begin, the opinion is submitted to an international arbitration tribunal often comprising leading public international lawyers (and sometimes current or former judges of…

Arbitration Institutions and Rules, Arbitration Proceedings, Investment Arbitration, Other Issues

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Procedural Order No. 3 (Confidentiality Order) dated 27 January 2010 in Giovanna a Beccara and others v. The Argentine Republic (the “Order”) addresses the competing considerations of confidentiality, transparency, public information, equality of the Parties’ rights, and orderly conduct of the proceedings in investment treaty arbitration.  Although the Tribunal’s Order provides a nuanced approach to…

Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, International Courts, Investment Arbitration, Jurisdiction, Public Policy

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In my last post I questioned whether investor misconduct (such as fraud, illegality and corruption) is invariably a jurisdictional issue.  This post focuses on the use of admissibility as a filtering mechanism to screen investor claims.  Although it has been suggested by at least one investment treaty tribunal that the concept of admissibility does not…

Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Jurisdiction, Public Policy

(University of Victoria Faculty of Law)/ /3 Comments

The treatment of investor misconduct in investment treaty arbitration raises a series of complex issues.  Allegations of investor misconduct (such as fraud, illegality and corruption) can arise in the context of the making of an investment, during its operation, or in the investment treaty claim making process.   How should a tribunal address investor misconduct if…

Arbitration Agreements, Investment Arbitration, Jurisdiction

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The Decision on Jurisdiction and Competence (19 June 2009) in Tza Yap Shum v. The Republic of Peru (ICSID Case No. ARB/07/6) is noteworthy as the first publicly available decision involving a claim by a Chinese investor under a Chinese investment treaty. The claim is a tangible reminder of the fact that Chinese investors are…

Arbitration Agreements, Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Jurisdiction

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It is always satisfying for an academic when research interests contribute to teaching. So, as I began teaching first year contracts this year, I read the 8 September 2009 award in Azpetrol International Holdings B.V., Azpetrol Group B.V. and Azpetrol Oil Services Group B.V. v. The Republic of Azerbaijan, ICSID Case No. ARB/06/15 (Azpetrol) with…

Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Asia-Pacific, Domestic Courts, Investment Arbitration, Seat of the arbitration

(University of Victoria Faculty of Law)/ /3 Comments

It is well accepted that state responsibility arises under international law for denial of justice. This might occur, for example, where a state court abuses its supervisory function over an international arbitration. In the investment treaty context, a denial of justice by host state courts would normally lead to a fairly straight forward breach of…

Book Review, International Legal Theory and Teaching, Middle East

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Professor Roger Alford’s recent posting, “The Arbitrator as Diplomat”, discusses the role of “diplomatic arbitration,” a concept with a long historical pedigree. Some of that history (and much more) is contained in the late Professor Douglas M. Johnston’s posthumous opus, The Historical Foundations of World Order: The Tower and the Arena (2008). The book was…

Arbitration Agreements, Arbitration Awards, Investment Arbitration, Jurisdiction

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When does a most-favoured-nation (MFN) treatment clause in an investment treaty confer jurisdiction on an investor-state arbitration tribunal? Most readers will be aware that in a series of decisions investment treaty tribunals have given very different responses to this question. On the one hand, a line of decisions suggests that, unless there is a express…