It is not unnoticed that good faith gained relevance in investment treaty arbitration. There is an increasing number of decisions where good faith was relied on by tribunals on the basis of Article 31(1) of the Vienna Convention on the Law of Treaties (“VCLT”), the general rule of interpretation, according to which “[a] treaty shall…
On January 25, 2023 the Grand Chamber of the European Court of Human Rights (ECHR) issued the preliminary decision in the case Ukraine and The Netherlands v. Russia where it clearly stated that certain “areas [of Ukraine] were, from 11 May 2014 and subsequently, under the effective control of the Russian Federation” (para. 695). This…
The year 2022 saw French and Dutch courts upholding arbitration awards which condemned Russia for breaches of the 1998 BIT between Russia and Ukraine (“Russia-Ukraine BIT”) through actions in the Crimea peninsula after its annexation in 2014. The arbitration cases in the context of which the awards were issued (the “Crimea cases”) have a common…
On May 2, 2021, the ICC Austria organized a seminar on investment protection in Russia in light of its limited-scope investment agreements and the ongoing military crisis. The key speakers were Dr. Herfried Wöss, a partner of Woess & Partners LLC and founder of the Investment Arbitration Forum, and Prof. Dr. Nikos Lavranos, Of Counsel at…
The Crimea crisis has received attention by UNCLOS and investment tribunals, as well as by the Swiss Federal Tribunal in appeals and annulment proceedings. However, their analyses have been limited to jurisdiction. The implicated issue was whether the (bilateral) investment treaties (BIT) of the occupying, and a fortiori annexing, State could be applied extraterritorially. These…
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…
Since the annexation of Crimea by the Russian Federation in 2014, a substantial number of investment claims, in particular expropriation claims, have been raised by Ukrainian nationals against the Russian Federation in relation to investments made in Crimea prior to the annexation. In this regard, a fundamental legal issue concerns the applicability of the Agreement…
In a marked departure from its usual closed-doors policy, the Swiss Federal Supreme Court (the “Supreme Court”) recently held public deliberations in two separate appeal proceedings concerning foreign investment arbitrations. In both cases, a public deliberation by all five judges of the first civil chamber was necessitated due to the lack of unanimity among the…
