The filing of new actions continues in the United States District Court for the District of Columbia (“D.D.C.”) to enforce ICSID awards rendered against Spain. The latest petition was filed on April 24, 2020, by Watkins Holdings S.à.r.l. and Watkins (Ned) B.V., both affiliates of the UK company Bridgepoint Advisers Limited, seeking the enforcement of…
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…
Recent years have seen an uptick in the expansion and enforcement of anti-corruption laws worldwide. In 2017, China amended its Anti-Unfair Competition Law, broadening the scope of bribe recipients covered by the law, and increasing penalties. In 2019, Italy widened its anti-bribery law, No. 3/2019, increasing penalties for both individuals and companies found guilty of…
Africa is in the vanguard of investor obligations in international investment law. As it prepares to seek a continental investment code for the second time, it finds itself at a crossroads. In tracing the emergence and trajectory of investment instruments toward the historic juncture to which Africa presently arrives, one glimpses the promise of a…
Chinese involvement in 5G infrastructure development has been an issue of concern for policy makers globally. This post addresses the question of whether the Chinese multinational Huawei would have an investment claim against the German government were they to prohibit its participation in 5G deployment. Germany is selected as a case study due to the…
The recent case of Itisaluna Iraq LLC and Others v. Republic of Iraq represents the first time that an ICSID tribunal had been constituted under the Agreement on Promotion and Protection and Guarantee of Investments among Member States of the Organization of Islamic Cooperation (the “OIC Agreement”). The tribunal affirmed that the OIC Agreement contains a…
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…
For some time now, the world has seen a rise in proto-nationalism, protectionism, and even nationalization of resources. This paradigm shift when coupled with criticism being leveled against the Investor-State Dispute Settlement (“ISDS”) system for its alleged bias in favor of capital exporting countries, make for a dangerous combination. With the ‘return of the state’…
In less than a decade, the Republic of Côte-d’Ivoire enacted two investment laws (2012 and 2018). The latter one recently amended, reflects the best practices the country has learned from its previous investor-states disputes. On December 18, 2019 the Council of Ministers introduced some amendments to the 2018 Investment Code related inter alia to VAT…
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…
The long-awaited Agreement to terminate intra-EU BITs (bilateral investment treaties) was signed on 5 May 2020 (the “Termination Agreement”). According to the European Commission, the Termination Agreement “implements the March 2018 European Court of Justice judgment (Achmea case), where the Court found that investor-State arbitration clauses in [intra-EU BITs] are incompatible with EU Treaties.” The…
Traditionally, nationality for corporate entities has been regulated by national law, often by reference to whether a corporation has a seat in a country or was incorporated under its laws. However, international investment law has departed from the generally accepted rules of international law on the nationality of corporate persons. Already in the 1960s, the…
The strength of any dispute settlement mechanism will depend upon its consistency with the requirements of independence and impartiality. Disclosures made by adjudicators prior to adjudicating a dispute, and challenges raised against adjudicators during the course of dispute settlement, target a perceived absence of independence or impartiality. The purpose of this post is to juxtapose…
In its unanimous decision in the Micula case the UK Supreme Court on 19 February 2020 made clear that ICSID arbitral awards rendered by tribunals established pursuant to intra-EU BITs could be enforced in the UK. As explained by Guillaume Croisant in his blog post on 20 February, the UK Supreme Court overruled the Court…
In interpreting one of the most contested investment treaty protection standards – fair and equitable treatment – arbitral tribunals have increasingly referred to the necessity for an investor to conduct a due diligence investigation before investing in a host state. Foreign investors have been required to assess not only commercial, but also general socio-political risks….
COVID-19: Background and Impact on Foreign Investment in the Developing Countries As discussed on the Blog previously, the number of confirmed cases of COVID-19, the disease caused by the virus named SARS-CoV-2, continues to rise globally, as shown on this page from the WHO. Today, the virus has already spread in Western Europe and the…
In 2019, the United States (‘U.S.’) made six non-disputing Party submissions in investment treaty arbitrations, three of which took place under the NAFTA (Lion Mexico Consol. L.P. v. Mexico; Vento Motorcycles, Inc. v. Mexico; and Tennant Energy, LLC v. Canada), and one each of which took place under U.S. agreements with Korea, Peru and Panama (Jin Hae…
Extraordinary Times These are extraordinary times in many regards. The spread of novel coronavirus (“COVID-19”), now considered a pandemic, continues to have a significant global impact on several fronts. For States, the pandemic of course presents significant public health challenges. As we are seeing, it also presents significant economic challenges, due to the convergence of…
The aftermath of Achmea Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, defending EU Member States and the European Commission have questioned the validity of the application of the investment arbitration clause in the Energy Charter Treaty (ECT) to intra-EU disputes. Although the motions to challenge jurisdiction on…
On February 4, 2020, ICSID registered a request for arbitration submitted by the company Odebrecth Latinvest Sarl, a Luxembourg-based subsidiary of the Brazilian company Odebrecht SA, against the Republic of Peru (ICSID Case No. ARB/20/04). This post analyzes the background to this dispute, as well as the possible strategies that the parties could use during…
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…
