Co-authored with Ivaylo Dimitrov, George Washington University Law School Foreword A recent award rendered in the case of Standard Chartered Bank (Hong Kong) Limited v. Tanzania Electric Supply Company Limited (TANESCO) (ARB/10/20, Award, 12 September 2016) (hereinafter: “SCB HK v. TANESCO”) seems to put an end to a dispute which had sparked lately relating to an arbitral…
Co-authored with: Oleg Temnikov, Wolf Theiss Background In a recent award issued in the case of CEAC Holdings Limited v. Montenegro (ARB/14/8, Award, 26 July 2016) the arbitral tribunal had to decide whether CEAC Holdings Limited (hereinafter: “CEAC”) was a protected investor within the meaning of the applicable Cyprus–Serbia and Montenegro BIT. Under Article 1…
In its judgment of 19 November 2012 in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia), the International Court of Justice (“Court” or “ICJ”) delimited, inter alia, the continental shelf and exclusive economic zone of Nicaragua and the maritime entitlements of the islands of which it was determined to be under Colombian…
and Oleg Temnikov Purpose of security for costs Security for costs falls into the category of provisional measures and is regulated by Article 47 of the ICSID Convention and Arbitration Rule 39. Its purpose is, inter alia to preserve the effectiveness of the award and the integrity of the proceeding by protecting the requesting party’s…
and Oleg Temnikov 1. Approaches to cost allocation There are, generally, two approaches to costs allocation (“CA”), namely: (1) pay your own way (“PYOWA”) whereby the parties share the costs of the proceedings and bear their own legal costs; (2) loser pays or also called “costs follow the event” approach (“CFTEA”) under which the losing…
and Oleg Temnikov Foreword Designation by a State of a constituent subdivision or agency provided for in Article 25, paragraphs 1 and 3, of the ICSID Convention has recently sparked a debate particularly in terms of the manner in which the designation is made and communicated to the Center. This is the subject of the…
and Oleg Temnikov Foreword The recent decision on preliminary objections, dated 17 January 2014, against the application for annulment in Elsamex S.A. v. Honduras (ARB/09/4) brought renewed interest in the procedure for summary dismissal of unmeritorious claims under Rule 41(5) of the ICSID Arbitration Rules. The present post examines shortly this procedure as well as…
and Oleg Temnikov I. Foreword At the end of 2013, the Financial Times reported that a referendum will be held in Berlin on the question whether the State shall take over power supply from the hands of Vattenfall. We use this as an occasion to examine the legal implications in the field of investment arbitration…
and Oleg Temnikov “Put forth your best” by Bill Clennan The contest lasts for moments Though the training’d taken years. It wasn’t winning alone that was worth the work and tears. The applause will be forgotten The prize will be misplaced. But the long hard hours of practice will never be a waste. For in…
and Oleg Temnikov Foreword The tribunal in Mesa Power Group, LLC v. Canada (PCA Case No. 2012-17, Procedural Order No. 2, 18 January 2013) recently stated with regard to bifurcation of proceedings that: “[I]t is good… to let the parties ‘know where they stand’… at an early stage and not to impose the burden of…
Foreword For centuries people have searched for the formula which may give them more gold. It may turn out that some investors have found it. As it will be explained, indirect investments through a chain of intermediary companies hides the risk of multiplication of claims and double recovery. But not according to the tribunal in…
and Oleg Temnikov I. Bureau Veritas v. Republic of Paraguay In the recent Further decision on objections to jurisdiction dated October 9, 2012 the tribunal in Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Paraguay (ICSID Case No. ARB/07/9) dismissed BIVAC’s claim based on violation of the fair and equitable standard by reasoning…
and Oleg Temnikov There is a Taoist fable of the three stupid men who were traveling together from one village to the next. They rested for the night under a banyan tree. In the morning, it turned out that the travelers have forgotten whose shoes are whose. Because none of the three men was able…
Akbar the Great once drew with his royal hand a line in the sand. He then told his wise men that if they wanted to keep their jobs, they must invent a way to make the line shorter without touching any part of it. Wise man after wise man approached the line and stood in…
and Stanka Cherkezova With the finals of the Philip C. Jessup and Willem C. Vis Moot approaching it is a good time to spend a few words on oral advocacy and persuasion which are indispensable to moot-courting and real life career as well. A judge from the International Court of Justice once said that he…
An earlier post examined the general limitations on arbitral discretion. This part will look into the question of actions taken proprio motu and the limits thereto. Functions exercisable proprio motu are perceived as a special case of application of the discretionary powers enjoyed by a tribunal. Actions taken proprio motu must be distinguished from functions…
The problem of arbitral discretion has major implications on the rights of the parties. It is a concept foundational to international arbitration. Yet, it has proven to be so elusive as to escape any definition or treatment in literature. Why is this topic important? In order to answer this question, let us take pre-award interest…
by Inna Uchkunova and Oleg Temnikov Foreword “The whole exercise was great fun and for me, I was then 26 years old, a great eye-opener – I learned a lot.” – Sir Elihu Lauterpacht on his advice given to the Anglo-Iranian Oil Co. in 1954, on which occasion it emerged the idea that “any contract…
The problem of the law applicable to State contracts (i.e. contracts concluded between a foreign national and a State or a state entity) as well as the responsibility of States for the breach of these contracts has entertained the minds of scholars and practitioners ever since the famous PCIJ dictum in the 1929 Serbian Loans…
“Research is formalized curiosity…” – Z. Hurston In what follows I have tried to gather information from publicly available sources regarding some of the questions which have troubled my mind lately. It is hoped that the results would be of interest to the readers. For me, this proved to be one of my most exciting…
Our interest on this topic has been provoked by a reading of the Repsol v. Petroecuador Stay Orders (See ICSID Case No. ARB/01/10, Procedural Order No. 1 (Unofficial translation), 22 December 2005; Procedural Order No. 4 Termination of Stay (Unofficial translation), 22 February 2006) in the context of a research on conditional stay of enforcement…
