BIT

Applicable Law, BIT, Damages, ICSID Convention, Investment Arbitration, State entity, Treaty, Umbrella clause

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

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…

Arbitration Awards, Arbitrators, BIT, Costs in arbitral proceedings, ICSID Convention, Investment, Investment Arbitration, Jurisdiction

(International Moot Court Competition Association (IMCCA))/ /15 Comments

“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…

BIT

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /1 Comment
WilmerHale

In August 2011, the tribunal in Abaclat and others v Argentina decided (by a majority) that it had jurisdiction over claims brought by approximately 60,000 Italian investors, and that the claims were admissible.[1] The Italian investors claim that Argentina has breached its obligations under the Argentina-Italy bilateral investment treaty (BIT) when it defaulted on and…

BIT, Investment Arbitration, Third party funding

(Conway & Partners)/ /Leave a comment

The saga with Yukos Oil and its nationalization – and the effects on its various related entities – has been ongoing for quite some time. As reported in the news of late (see e.g. Business Wire.com and Cisarbitration.com), in late July an arbitral award was rendered under the auspices of the Stockholm Chamber of Commerce….

BIT, Costs, Europe, European Law, Investment agreements, Investment Arbitration

(Linklaters)/ /1 Comment

With the entry into force of the Lisbon Treaty on 1 December 2009, control of foreign direct investment became an exclusive area of EU competence, or such is the view of the European Commission, a view which is not shared by all EU member States. Since that time, the Commission has embarked upon what it…

ASEAN, BIT, Investment agreements, Investment Arbitration, NAFTA, Vienna Convention on the Law of Treaties

(University of Notre Dame)/ /3 Comments
Institute for Transnational Arbitration (ITA)

Investment treaty provisions that allow joint decisions by States Parties to override or control arbitral tribunals’ interpretations of investment treaty standards scarcely appear in international investment agreements. The recently released 2012 United States Model BIT is a rare example. The 2012 version carried over Article 30(3) of the 2004 United States Model BIT, enabling States…

BIT, International Legal Theory and Teaching

(Notre Dame Law School)/ /Leave a comment

I have just published an article in the Utah Law Review that I wanted to flag for our readers. For the international arbitration community the article is relevant because it compares and contrasts the self-judging WTO security exception with non-self-judging emergency exceptions in various BITs. The focus of the Article is on the WTO security…

BIT, Investment Arbitration, Investment protection

(Arnold & Porter LLP)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

After a review process that lasted three years, expectations ran high for the revised model U.S. bilateral investment treaty (“BIT”), which was released last month. Stakeholders from many parts of society — the U.S. Congress, environmental organizations, labor groups, business groups, trade associations, academia, the public, and investment experts — weighed in during the review…

Africa, BIT, ICSID Convention, Investment Arbitration

(Mishcon de Reya)/ /1 Comment

On 18 April 2012, South Sudan signed and ratified the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ‘ICSID Convention’). In accordance with Article 68(2) thereof, the Convention entered into force for Sudan thirty days later, i.e. on 18 May 2012. The membership of Africa’s newest republic…

Arbitration Act, Arbitration Agreements, Arbitration clause, BIT, Confidentiality, Dispute resolution clause, Investment Arbitration

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

In a judgment dated 25 April 2012 (Lombard North Central plc and another v GATX Corporation [2012] EWHC 1067 (Comm)), Judge Andrew Smith of the English High Court (Commercial Court) underlined the potential risks that might arise from arbitration clauses which have a limited scope. Although this judgment is relevant to a number of different…

BIT, Commercial Arbitration, International Law, Investment agreements, Investment Arbitration, Investment protection

(University of Portsmouth)/ /10 Comments
Institute for Transnational Arbitration (ITA)

The concept of good faith has been a subject of perennial controversy since it was derived from the Roman legal equivalent ‘bonas fides’. Juristic views on and the legal conceptualization of the idea of good faith may often vary across the cultural divides and legal traditions. At a higher level of abstraction there may be…

BIT, Umbrella clause

(Norton Rose Fulbright)/ /Leave a comment
YSIAC

In a recent award that arguably represents a high-water mark for the operation of an umbrella clause in ICSID jurisprudence thus far, a tribunal comprising Stanimir A. Alexandrov (as President), Donald Francis Donovan and Pablo Garcia Mexia held Paraguay liable to SGS Société Générale de Surveillance S.A. (“SGS”) for failing to pay for services rendered….

BIT, Energy Charter Treaty, Investment, Investment agreements, Investment protection

(Stockholm University)/ /Leave a comment

The notion of ‘investment’ has been one of the most controversial issues in arbitral proceedings instituted under the ICSID Convention. The award rendered by the UNCITRAL arbitral tribunal in Romak v. Uzbekistan has brought the issue outside of the ICSID context and concluded that, despite the broad definitions of ‘investment’ in Bilateral Investment Treaties (BITs),…

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

(University of Victoria Faculty of Law)/ /Leave a comment

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…

Anti-suit injunction, BIT, Investment Arbitration, North America

(Notre Dame Law School)/ /3 Comments

Last week was a blockbuster one in the ongoing battle between Chevron and Ecuador. On Wednesday, the arbitral tribunal adjudicating Chevron’s BIT claim issued an Interim Award ordering Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against…

BIT, ICSID Convention, International Law, Investment Arbitration

(Essex Court Chambers)/ /4 Comments
Institute for Transnational Arbitration (ITA)

In February 2010, Philip Morris International (PMI) filed a request for arbitration under the ICSID Convention against the Republic of Uruguay. 1)Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay (ICSID Case No. ARB/10/7). Pending (the Respondent filed a memorial on jurisdiction on September…

Annulment, Anti-arbitration, Appeal, Arbitration, Arbitration Agreements, Arbitration clause, Arbitration Proceedings, BIT, Foreign Investment Law, ICSID Convention, International arbitration, Investment Arbitration, Jurisdiction of the arbitral tribunal, kompetenz-kompetenz, New York Convention, Pre-arbitration Dispute Settlement Procedures, Principle of finality, Set aside an international arbitral award

(Independent Arbitrator)/ /Leave a comment

It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States….

BIT, Foreign Investment Law

(Independent Arbitrator)/ /Leave a comment

The recent decision in Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1) is prompting renewed debate over whether ICSID arbitration, now the leading mechanism for investors to pursue treaty-based claims against host States, may also be used by those States to assert related counterclaims against the investors, allowing all such claims to be settled in…

Annulment, Arbitration Awards, Arbitration Institutions and Rules, arbitrators’ conduct, BIT, Investment agreements, Investment Arbitration

(US Department of State)/ /Leave a comment

Iura novit curia (usually translated as “the court knows the law”) refers to the power and/or obligation of a court to conduct its own legal analysis outside the parties’ pleadings. While there are very few decisions on iura novit curia in the investment treaty arbitration context, a small number of investment treaty arbitral tribunals and…

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…

BIT, Domestic Courts, Enforcement, ICSID Convention

(Editor in Chief, ASA Bulletin; LALIVE)/ /1 Comment

and Sandrine Giroud, Lalive In a decision issued on 23 November 2011, the Swiss Federal Supreme Court gave some welcome guidance on the rules of immunity applicable to the enforcement of ICSID awards in Switzerland (Decision 5A_681/2011 dated 23 November 2011 – The published decision is redacted but mentions the date of the ICSID award…

BIT, Jurisdiction, Russia

(Khrenov & Partners)/ /Leave a comment

Over the past few months, Russia’s outgoing Prime Minister Vladimir Putin has been busy campaigning for foreign investment into various industries of the Russian economy. In a nutshell, the thinking behind the new plan for improving the investment climate in Russia is that easing access to strategic industries for foreign investors will do the trick….