Rusoro Mining Ltd. (“Rusoro”), a Canadian corporation, filed an investment claim against The Bolivarian Republic of Venezuela (“Venezuela”), pursuant to the International Centre for Settlement of Investment Disputes (“ICSID”) Additional Facility Arbitration (“AF”) Rules of April 2006 (Case No. ARB(AF)/12/5). Rusoro claimed that, between 2009 and 2010, Venezuela expropriated its investment over mining rights and…
For the first time under Rule 54(2) of the ICSID 2022 Arbitration Rules, the Tribunal in Ruby River Capital LLC v. Canada (ICSID Case No. ARB/23/5) had to decide on a request for suspension of the proceeding. In its Request for Suspension, Canada asked the Tribunal to suspend the proceeding until the Tribunal in TC…
The Ecuadorian government held a referendum and a public consultation on 21 April 2024. Question D of the referendum asked citizens: “Do you agree that the Ecuadorian State recognizes international arbitration as a method to resolve disputes related to investment, contractual, or commercial matters?” (free translation). The substantive proposal of the question was merely based…
In a decision dated 29 December 2023, the Chilean Court of First Instance upheld an earlier decision dated 7 November 2023, which had granted a pre-judicial conservatory measure in support of a potential ICSID arbitration. The ruling prevents the Telecommunications Regulatory Authority of the Republic of Chile (hereinafter, “Chile“) from calling performance bonds of approximately…
This is the fifth consecutive year that we, either together or separately, have reported on trends at the intersection of human rights and international investment arbitration from the prior year (see prior Blog coverage, here, here, here, and here). As we emphasized last year, developments at this intersection continue directional trends from prior years, but also the aperture for…
Ecuador distanced itself from the International Centre for Settlement of Investment Disputes (“ICSID”) system more than a decade ago. During this period, Ecuador withdrew from all its bilateral investment treaties (“BITs”) and the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention” or “Convention”). In August 2021,…
In a new chapter of Ecuador’s backlash to the Investor-State Dispute Settlement (ISDS) system saga, the Constitutional Court of Ecuador (Court) declared Art. 15.20 of the Ecuador-Costa Rica FTA (FTA, Treaty) unconstitutional. This provision provides for ICSID or UNCITRAL arbitration in case of violation of the substantive protections accorded to foreign investors in the Treaty…
2022 was strongly marked by the change and reform of institutions, treaties, and procedural rules relevant to investor-State dispute settlement (ISDS). This post summarizes the most important institutional and structural reforms that were progressed during 2022 in relation to investment treaty law and ISDS. The focus is on the various reforms pursued under in the…
A seminar on 10 November 2023 during Australian Arbitration Week discussed “Australia’s engagement in the Investor-State Dispute Settlement (ISDS) reform process”. My presentation divided successive governments’ approach into three significant eras over the last decade: anti-ISDS (2011-13), case-by-case ISDS (2014-2021), and uncertainty (since 2022). Some uncertainty has dissipated since the seminar. On 14 November 2022,…
Considering the many ongoing discussions, especially in academia, on the perceived shortcomings, evils and presumable demise of Investor-state Dispute Settlement (ISDS), it is sometimes easy to forget that the system is alive and kicking and we should not be throwing in the towel just yet. Thankfully, last month ICSID published its Annual Report for the…
The British Institute of International and Comparative Law (“BIICL”), and DLA Piper, recently organized an event titled Revised ICSID Arbitration Rules: Key Changes. Following the initial presentation of Martina Polasek (ICSID Secretariat), Prof. Yarik Kryvoi (BIICL), Kate Cervantes-Knox, (DLA Piper), Guglielmo Verdirame KC (Twenty Essex) and Dr. Anthony Sinclair (Quinn Emanuel Urquhart & Sullivan) shared…
There’s a story told of Abraham Lincoln who, during his days as a working lawyer, was riding in a stagecoach from one rural courthouse to another. His companions got to discussing human anatomy, and one of them asked Lincoln, a distinctly tall man himself, how long he thought a man’s legs should be. Long enough,…
On 29 June 2022, an ICSID Tribunal composed of Alexis Mourre, Luis González García and Adolfo Jiménez issued its Final Award in the case brought by Alejandro Diego Díaz Gaspar, a Spanish national, against Costa Rica. The majority of the Tribunal ultimately found minor breaches of the underlying Costa Rica-Spain Bilateral Investment Treaty (the “Treaty”)…
The Spanish Cases Saga illustrates the arduous task of balancing the host state’s right to regulate and an investor’s economic interests. This post summarizes the tribunal’s reasoning in Novenergia v. Spain and Stadtwerke München v. Spain regarding FET breaches in the energy sector. The post argues that the latter case adopts a clearer analysis of…
On 21 March 2022, the Administrative Council of the International Centre for Settlement of Investment Disputes , or ICSID, approved extensive amendments of ICSID’s Regulations and Rules. The Regulations and Rules prominently include the rules of procedure for arbitration proceedings initiated under the constituent treaty of ICSID, the 1965 Convention on the Settlement of Investment…
The investor-State dispute settlement system (ISDS) is increasingly confronted with disputes related to climate-related measures. Consequently, this fora has been described as the new frontier in climate-change disputes, as tribunals are slowly becoming a de facto source of climate policy making that directly impacts the regulatory landscape. This blog post discusses the following issues: (i)…
Environmental concerns now play an increasing role in investment disputes. In this regard, this post analyses the interpretation of an environmental carve-out in an investment treaty in the decision on jurisdiction and liability in Eco Oro Minerals Corp. (“Eco Oro”) v. Colombia. Background and Award This dispute arose from Colombia’s measures adopted in connection…
On January 20, 2022, ICSID concluded a five-year consultative process leading to the publication of a set of amended rules for ICSID and ICSID (Additional Facility) proceedings. On March 21, 2022, ICSID announced that its Member States had approved these amendments. Accordingly, the 2022 ICSID Regulations and Rules will come into effect on July 1,…
On January 20, 2022, ICSID submitted its amended rules to the Administrative Council for a vote, marking the end of the five-year-old process of modernizing the ICSID Rules. ICSID members are expected to cast a vote on the amended rules by March 21, 2022, and if approved, the rules will enter into force on July…
Bilateral investment treaties depend upon international arbitration as the mechanism to resolve disputes between sovereign states and investors. Although offering obvious advantages over litigation before national courts, investors are not immune from the risk of proceedings becoming destabilized by external factors. A recent example involved Air Canada, the country’s flag carrier, and the Bolivarian Republic…
In the first week of November 2021, Seoul, once again, connected leading ADR practitioners, legal professionals, and scholars from different corners of the world through the Seoul ADR Festival 2021 (“SAF”). The SAF’s main flagship event was the 10th Asia-Pacific ADR Virtual Conference. Co-hosted by the UNCITRAL, Korea’s Ministry of Justice, KCAB INTERNATIONAL, the International…
ISDS has faced harsh criticism from environmental groups as being inimical to the protection of the environment. This post argues that environmental protection is an emerging jus cogens norm, and thus, an arising erga omnes obligation, which investment tribunals must recognize as such. Additionally, it explores the legal consequences of applying this public international law…
On April 19, 2021, the Secretariats of the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL) released the second draft of the Code of Conduct for Adjudicators in International Investment Disputes, a key feature of the Investor-State Dispute Settlement (ISDS) reform process which is presently under…
On 5-6 November 2020, reputable arbitration practitioners joined together for the 9th Asia Pacific ADR Conference and shared their experiences and insights on the latest developments in the arbitration landscape. Due to the ongoing COVID-19 pandemic, the annual conference took place virtually. It successfully attracted approximately 15,000 participants across 50 countries. The event was co-hosted…
