BIT

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

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

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…

BIT, ICSID Convention, Investment agreements, Investment Arbitration

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

My previous post described years of apparently intractable debate between two opposing camps of international lawyers about what kinds of economic activity should get international investment protections. This post will explain how that dispute was settled for the purpose of ICSID jurisdiction, and with what legal result. As the dispute ground on throughout the final…

BIT, ICSID Convention, Investment agreements, Investment Arbitration

(University of Michigan Law School)/ /1 Comment
Institute for Transnational Arbitration (ITA)

My last post described the ongoing controversy about the proper scope of “investment” under Article 25 of the ICSID Convention. The next two posts will draw on my recent article to argue that this controversy should be resolved consistently with the historical understanding of the term. Far from incorporating the limitations exemplified by the Salini…

BIT, Investment agreements, Investment Arbitration

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Article 25 of the ICSID Convention famously limits ICSID jurisdiction to “legal dispute[s] arising directly out of or in relation to an investment.” Uncertainty about the outer limits of this provision erupted into controversy about a decade ago, when Salini Costruttori v. Morocco kicked off a series of cases that imposed sharp limits on the…

BIT

(Notre Dame Law School)/ /Leave a comment

Luke Peterson passed along a tip about this interesting declaration attached to the U.S.-Rwanda Bilateral Investment Treaty: Articles 3 through 10 and other provisions that qualify or create exceptions to these Articles are self-executing. With the exception of these Articles, the Treaty is not self-executing. None of the provisions in this Treaty confers a private…

BIT, International arbitration, Investment Arbitration

(J. Sagar Associates)/ /1 Comment

In the summer of 2009, an ICSID tribunal ruled that various orders of the Bangladeshi courts that cumulatively denied Saipem (an Italian company) the benefits of an ICC award made in its favour constituted an unlawful expropriation of its investment. It held that the investor was entitled to compensation based upon the value of the…

Arbitration, BIT, International arbitration, Investment Arbitration

(Herbert Smith Freehills LLP)/ /2 Comments
Herbert Smith Freehills

The scope of Most Favoured Nation (MFN) clauses in bilateral investment treaties (BITs) has been a source of rich debate for many years. In sum, the debate centres around whether MFN “treatment” includes only substantive rules for the protection of investments, or if it also extends to procedural protections such as dispute resolution. There have…

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

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

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, Investment Arbitration, Pre-arbitration Dispute Settlement Procedures

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

In the recent investment treaty case Alps Finance Trade AG v Slovak Republic, an UNCITRAL tribunal had to consider whether Alps had satisfied the obligation contained in Article 9 of the Switzerland-Slovakia BIT which requires that “consultations will take place” and that they “do not result in a solution within six months” before the matter…

BIT, Compensation for Moral Damages, International Law, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /Leave a comment

As has been chronicled in previous postings, the 2008 decision of an ICSID arbitral tribunal to award $1 Million (US) in “moral damages” to an injured company has been eyed covetously by other investor-claimants in investment treaty disputes. Such sums may be “small change” compared to the more conventional forms of economic compensation claimed for…

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

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

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…

Arbitration Awards, Arbitration Institutions and Rules, BIT, Investment Arbitration, Jurisdiction

(White & Case LLP)/ /1 Comment
White & Case

On December 1, 2010, an ICSID tribunal composed of Sir Franklin Berman (President), Prof. Emmanuel Gaillard, and J. Christopher Thomas, QC, in Global Trading Resource Corp. and Globex International, Inc. v. Ukraine [Disclosure: White & Case LLP was counsel to Ukraine in this case], became the first tribunal ever to dismiss a case under the…

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

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

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…

Africa, Asia-Pacific, BIT, Canada, Energy Charter Treaty, Europe, International arbitration, International Law, Investment agreements, Investment Arbitration, Investment protection, NAFTA, North America, Russia, Set aside an arbitral award, Set aside an international arbitral award, South America

(Investment Arbitration Reporter)/ /Leave a comment

Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010. If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all…

BIT, European Union, Investment Arbitration

(The London School of Economics and Political Science)/ /Leave a comment
YIAG

In July this year, the European Commission published its communication “Towards a comprehensive European international investment policy” (COM(2010) 343 final) and a draft Regulation “establishing transitional arrangements for bilateral investment agreements between Member States and third countries” (2010/0197 (COD)). This initiative is based on the still controversial change brought about by the Lisbon Treaty, by…

Asia-Pacific, BIT, European Law, Investment Arbitration

(Notre Dame Law School)/ /Leave a comment

In the past twenty years the world of investment arbitration has taken the commercial world by storm. There are over 2,750 bilateral investment treaties and almost every one of them has an arbitration provision. Investment arbitration is now a prominent feature of the arbitration landscape. Just as BITs have proliferated in recent years, so too…

BIT, Investment protection

(Notre Dame Law School)/ /1 Comment

Last week I had the privilege to attend an investment arbitration conference and FDI moot court competition at Pepperdine. Kudos to Murdoch University of Australia for winning the competition and my alma mater NYU for winning the highest overall ranking. There was much to ponder in the conference from the likes of Andrea Bjorkland, Todd…

BIT, Europe, European Law, Investment Arbitration, Other Issues, Vienna Convention on the Law of Treaties

(White & Case LLP)/ /2 Comments
White & Case

The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on…

BIT, ICSID Convention, Investment Arbitration, Investment protection, Not-for-profit organizations (NGO)

(Investment Arbitration Reporter)/ /Leave a comment

In a recent post, Lisa Bench Nieuwveld raised an issue which has been discussed from time to time on this blog: the potential for not-for-profit activities to be protected under international investment treaties. There is no doubt that not-for-profit organizations face a barrage of abuse and mistreatment at the hands of host countries, and that…

Africa, BIT, Investment Arbitration

(Freshfields Bruckhaus Deringer LLP)/ /1 Comment
YIAG

Following the controversial land reform programme first introduced by President Robert Mugabe in July 2000, Zimbabwe has found itself in hot water of late, with a number of international disputes being brought by dispossessed farmers against the State. The first of these disputes was mounted at ICSID in 2005 by a group of 13 Dutch…

Arbitration Awards, BIT, Investment Arbitration, Jurisdiction

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

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…

Annulment, BIT, ICSID Convention

(Investment Arbitration Reporter)/ /Leave a comment

Earlier today, an ad-hoc annulment committee at the International Centre for Settlement of Investment Disputes (ICSID) completely annulled a 2007 arbitral award that had been rendered in favour of US energy company, Sempra Energy International. The striking development serves to nullify a US $128 Million (plus interest) award wherein a panel of ICSID arbitrators had…

Arbitration Agreements, BIT, Investment Arbitration, Investment protection

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

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…