ISDS tribunals have an unfortunately accurate reputation for being “male, pale, and stale”. A welcome backlash to this state of affairs has arisen, but the discourse has focused almost entirely on one aspect of diversity: gender. For example, the Equal Representation in Arbitration Pledge has garnered over 2900 signatories, who have committed to appointing more…
On 26 May 2018, the Ninth Investment Arbitration Forum took place at the Juridicum of the University of Vienna jointly organized by Prof. Irmgard Marboe of the University of Vienna, Adriana San Román and Herfried Wöss of Wöss & Partners and ICC Austria. The topic of this year’s forum was “Valuation of Damages in Changing…
That investor state tribunals may deal with allegations of corruption in ISDS disputes is well acknowledged. The seminal World Duty Free1) World Duty Free Company Limited and The Republic of Kenya, ICSID Case No. ARB/00/7 (Award dated 4 October 2006). decision involved the payment (in a briefcase) of USD$2 million dollars cash to (the then)…
Introduction Pursuant to Article 47 of the ICSID Convention, an ICSID Tribunal may “recommend any provisional measures which should be taken to preserve the rights of either party”. The use of “recommend” is concerning. Its lack of imperative character triggers a debate on whether ICSID provisional measures have legally binding effect, i.e. require mandatory state…
Without the rights and protections of a treaty, a foreign investor who suffers a wrongful act at the hands of a host State traditionally has no legal standing to pursue an international claim against that State.1) Case Concerning the Barcelona Traction, Light & Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3,…
In the midst of challenges to the very legitimacy of Investor-State Dispute Settlement (ISDS), the International Centre for Settlement of Investment Disputes (ICSID) celebrated its 50th anniversary and embarked on the fourth ICSID Rules amendment process in ICSID history. The previous amendment processes brought notable additions to the ICSID Rules, such as enhanced transparency in…
Critics of the current investor-state arbitration regime may yet have their best days ahead of them. In the midst of tarnished FTA negotiations and in times of political uncertainty, they have captured a global audience. Their message is disconcerting: Investor-State Dispute Settlement (ISDS) is a system designed by and for multinational corporations. It allows faceless…
This Post analyzes the recent award in Fábrica de Vidrios Los Andes, C.A. & Owens-Illinois de Venezuela, C.A. v. Bolivarian Republic of Venezuela (“Favianca”). This is the first award to rely on Article 72 of the ICSID Convention to decline jurisdiction over a claim filed after Venezuela had noticed it would denounce the ICSID Convention…
A court of a Contracting State shall recognize an ICSID award as binding and enforce pecuniary obligations per that award within its territory as if it were a final judgment of the court in that State. The enforcement creditor is not required to obtain a declaration of enforceability (viz. the exequatur). At the same time,…
The latest decision in Bear Creek Mining Corp v Republic of Peru (ICSID Case No. ARB/14/21) presents some interesting takeaways for international investment arbitration case law. This note briefly introduces the case’s relevant facts before addressing the reasoning of the Tribunal in relation to (i) illegality as a bar to investment protection, (ii) indirect expropriation,…
On 15 September 2017, the Chairman of the Administrative Council of the International Centre for Settlement of Investment Disputes (ICSID) designated new members to the Panel of Arbitrators and the Panel of Conciliators. This is momentous. For the first time, the lists contain an equal number of female and male members, and a geographical diversity…
This post is the conclusion of a two-part publication regarding the situation of investors in Ecuador vis-á-vis the country’s efforts to elude the substantive and procedural protections afforded by investor-state dispute settlement (ISDS). The first part consisted of a review of the law applicable to entering and withdrawing from the International Centre for Settlement of…
Recently, it was reported that after 14 years since Zimbabwe had illegally evicted Dutch farmers from their farms, it finally agreed to pay the damages awarded under the ICSID award, which dates back in 2009. In the Funnekotter et al case, the arbitral tribunal rejected Zimbabwe’s necessity defence, which was based on the claimed need…
“BITs and arbitration centers, such as ICSID, are an expression of an unjust moral order”, said Ecuador’s former President, Rafael Correa, back in 2014. Such animadversion led the country to denounce all its bilateral investment treaties (BITs) earlier this year. The Latin American nation’s feud with BITs and the International Centre for Settlement of Investment…
Since the first application for provisional measures suspending criminal proceedings in Tokios Tokelés v. Ukraine (ICSID Case No. ARB/02/18, Order No. 3, 18 January 2005), the number of applications before ICSID tribunals for these types of measures has steadily increased. Recent applications have been widely commented on in the arbitration community, including in this blog….
“And the day came when the risk to remain tight in a bud was more painful than the risk it took to blossom.” (Anaïs Nin) Introduction and background On 12 July 2017, CMS Hong Kong and the Hong Kong International Arbitration Centre (HKIAC) hosted the fourth joint lecture in their quarterly series focusing on the…
The ICSID Tribunal in the case Eskosol S.p.A. in Liquidazione v. Italian Republic (ICSID Case No.ARB/15/50) has recently issued a Decision on Respondent’s Application under Rule 41(5) of the ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules). In 2015, Eskosol filed a Request for Arbitration based on Italy’s claimed violation of the Energy Charter…
In October 2016, the ICSID advised the Member States of the ICSID Convention that it was beginning the fourth amendment process since the enactment of the definitive ICSID Arbitration Rules in 1967. The first amendment to the Rules took place in 1984 and mainly referred to the possibility to resort to national courts for provisional…
Three decades, two wars, one occupation, and multiple democratic elections later, I found myself back in my country of birth, Iraq, in April 2017. I was invited to Baghdad by the Iraq Energy Institute (IEI) as a speaker at the 2017 Iraq Energy Forum (IEF), under the patronage of the Iraq government and the Iraq…
Newspapers, cable television shows, and Twitter are abuzz with claims of “fake news.” Within the past two weeks alone, the U.S. President accused his predecessor of wiretapping his office building, apparently in reliance upon reporting in online news media. More traditional news outlets have responded with innuendo that the Director of the U.S. Federal Bureau…
ICSID tribunals have refused to hear the merits of investment treaty claims if a corrupt act was involved in contract formation, even where that corruption involved state actors. Consequently, the arbitral system—which was designed to ensure the neutral and apolitical resolution of investment disputes, inadvertently incentivizes states to “promote a corruption scheme in order to…
The beginning of 2017 has already been remarkable to contribute to discussions regarding counterclaims in investment arbitration: two recently finalized cases against Latin America states (Urbaser et al. v The Argentine Republic, ICSID Case No ARB/07/26 ; Burlington Resources Inc. v Republic of Ecuador, ICSID Case No. ARB/08/5) provide several noteworthy points for further debates…
New years are a great opportunity to take stock and to prepare for future developments, despite the obvious difficulties in predicting what the main trends will be. This is also the case for 2017. Looking back to 2016 there are two topics that immediately stand out: gender diversity and transparency. Both topics were subject to…
Co-authored with Ivaylo Dimitrov, George Washington University Law School Foreword A recent award rendered in the case of Standard Chartered Bank (Hong Kong) Limited v. Tanzania Electric Supply Company Limited (TANESCO) (ARB/10/20, Award, 12 September 2016) (hereinafter: “SCB HK v. TANESCO”) seems to put an end to a dispute which had sparked lately relating to an arbitral…
