Arbitration, Arbitration Proceedings, BIT, Investment Arbitration

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This post examines an illustrative case of a successful diplomatic protection claim under an old Bilateral Convention of Establishment (BCE). These were early precursors to Bilateral Investment Treaties (BITs), which aimed to encourage and protect foreign investments. While revisiting Switzerland’s unlawful expropriation of Italian-owned real estates, the post proposes an alternative solution to that case…

Arbitration, Dispute, Dispute Resolution, Dispute Settlement, ICSID, Investment Arbitration, Norway

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Recently, the first-ever treaty-based arbitration against Norway was registered with ICSID. The Request for Arbitration was submitted by a Latvian investor, Mr. Peteris Pildegovics, and his company, SIA North Star. This post provides a background to the dispute, outlines possible claims, elaborates on its ramifications, and predicts further arbitrations. The dispute at hand is similar…

Arbitration Agreement, Arbitration Agreements, Arbitration Awards, Arbitration clause, Claims Trading

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This post examines the admissibility of investment claim assignments based on the notion of Investor-State arbitration where there is no contractual relationship between the disputing parties. To do so, it draws on Jan Paulsson’s famous article titled Arbitration Without Privity.   Contract Assignments, Assignment of Claim and Arbitration Agreements The assignment of international contracts is…

Arbitration, Crimea, Dispute, Dispute Resolution, Investment Arbitration, Investment law, Turkey

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This is a follow-up post that updates on developments in the escalating tensions between Cyprus and Turkey over hydrocarbon explorations in the Mediterranean Sea. In the previous post it was argued that the Italian oil company ENI could launch an arbitration against Turkey under the Italy-Turkey Bilateral Investment Treaty (BIT) in the aftermath of the…

Infrastructure, Investment Arbitration, Italy

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It is our tentative prediction that a recent ruling from the Regional Administrative Court of Tuscany (TAR), which blocked the project to expand Florence Airport’s runaway – and hence, its passenger flow and corollary revenue – may “prepare the ground” for an investment arbitration dispute between Argentinian and Emirati investors and Italy.   Background In…

Agreement in writing, CISG, International arbitration, International Commercial Arbitration, New York Convention, Spain, Supreme Court of Spain

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This post analyzes the problem stemming from the different form requirements established by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“NYC”) and the 1980 United Nations Convention on Contracts for the International Sale of Goods (“CISG”) with respect to the formation of the agreements the two Conventions regulate….

Arbitration, BIT, Double taxation, Intra-EU Investment Arbitration, Tax

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This post aims at highlighting an inconsistency in the law of the European Union (“EU”) in regards to the comparison of the treatment of Bilateral Investment Treaties (“BITs”) and Double Taxation Treaties (“DTTs”) concluded between EU Member States. The inconsistency lies in the diametrically different approaches adopted by EU law and its institutions (“EU Institutions”)…

Achmea, Brexit, Intra-EU Investment Arbitration

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Introduction The approaching BREXIT, in conjunction with the recent Svea Court of Appeal‘s decision upholding largely an intra-European Union (EU) Stockholm Chamber of Commerce (SCC) award against Poland, provides the opportunity to further discuss the ramifications of the preliminary ruling by the Court of Justice of the EU (CJEU) in the Achmea case (Case C-284/16)….

Energy, Energy Charter Treaty, Italy, Oil & Gas

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The Italian Republic – for better or for worse – is cracking down on hydrocarbon explorations and extractions. Kicking off with the regulatory changes recently brought about by the Italian Government, this post gauges their possible consequences for the stakeholders by going through a pending arbitration which may be ripe enough to become a benchmark…

Baseball Arbitration, Final Offer Arbitration, FOA, Issue-by-Issue, Model Arbitration Clause, Whole Package

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A recent post discussed the upsides and downsides of the so-called Final Offer Arbitration (“FOA”)  also known as Baseball Arbitration. In short, in an FOA, instead of crafting an award from scratch, the arbitral tribunal simply has to pick either party’s final offer on the claims and elevate it to the final award, usually without…

Arbitration Agreement, Costs in arbitral proceedings, Expedited arbitration, Final Offer Arbitration, Procedure, Reasoned Awards

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This is an introduction to the so-called “Final Offer Arbitration” (FOA), sometimes also referred to as pendulum or baseball arbitration. FOA is a model of arbitration that originated in the late 1940s and consolidated in the 1970s in the USA to resolve labour disputes in the public sector and the baseball league, hence the name….

ILC Articles on State Responsibility, Investor-State arbitration, State Responsibility, State Responsibility for Damage

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At a time when Spain is targeted by investment arbitrations (with almost thirty ICSID cases pending against it), the second ICSID-CIAMEN Forum held in Madrid could not be more auspicious.  The event – organized by Marta Lya Martini Briceño and José María Beneyto from the CIAMEN (Centro Internacional de Arbitraje, Mediación y Negociación) with the…

Cyprus, occupation, Oil & Gas, Russia, Turkey, Ukraine

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This post navigates the possibility of expanding the protection of a Bilateral Investment Treaty (BIT) to foreign investments made in the territory of a country, which is partially occupied by the State that is a Contracting Party to that BIT. By taking into account a real-life situation – which may result into an investment arbitration…

Admissibility, Investor-State arbitration, ISDS, Latin America

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This post gives a bird’s eye view of an   imminent investment arbitration and forecasts procedural and/or jurisdictional hurdles to the case, by analyzing the dispute resolution provision and relevant precedents, with the intention of highlighting recurring inconsistencies on a key procedural issue and urging for more predictable outcomes for the benefits of the stakeholders in…

BIT, Investment agreements, Investment Arbitration, Investor-State arbitration, ISDS

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Introduction The two main reasons why countries generally agree to sign bilateral or multilateral investment treaties (BITs or MITs) are to attract foreign direct investments, while at the same time protecting their own citizens’ investments abroad by reducing political risk. Arguably, there might be multiple added values on top of these reasons for a specific…

Damages, Due Diligence, Fair and Equitable Treatment, Legitimate Expectations, Oil & Gas

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Introduction Following the denial by Italian authorities to grant Rockhopper Exploration PLC (a UK upstream company; hereafter, RKH) the production concession for an oil and gas field, in May 2017, the company lodged (jointly with its Italian subsidiary, hereafter collectively referred to as the Claimant) a request for arbitration against Italy with the ICSID by…

ICSID, ICSID Arbitration, Spain

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A court of a Contracting State shall recognize an ICSID award as binding and enforce pecuniary obligations per that award within its territory as if it were a final judgment of the court in that State. The enforcement creditor is not required to obtain a declaration of enforceability (viz. the exequatur). At the same time,…

Arbitration, Energy, Energy Charter Treaty, Intra-EU BITs, Investment Arbitration, Investment protection

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Currently, several dozen arbitral claims have been lodged by investors from an EU Member-State against another EU Member-State based on the Energy Charter Treaty (ECT). These so-called intra-EU ECT-based arbitrations seem to be increasing, despite attempts by the European Commission to halt them. So far, neither the Respondent-States nor the Commission (as amicus curiae) have…

Energy Charter Treaty, Investment, Investment protection, Investor

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In an interesting post published on Kluwer Arbitration Blog by Eric Leikin and Martina Magnarelli, it is described in a very comprehensive manner the state of play as regards the soundness of Respondents and European Commission’s arguments refusing the jurisdiction of arbitral tribunals in intra-EU ECT claims. Among these arguments (all rejected by the tribunal…

Arbitration, Eastern Europe, Fair and Equitable Treatment, Investment, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, Switzerland

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In the 2000s, mortgages in Swiss Franc (CHF) were very popular among consumers in Central, Eastern and Southeastern Europe for the acquisition of both private and commercial properties, as the CHF was a stable and reliable currency and offered lower interest rates than loans in Euro or in local currencies. When on 15 January 2015…