Seven years ago, Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) set off an avalanche that buried most of the European investment arbitration landscape. The BGH’s order of June 3rd 2016 referred to the Court of Justice of the EU (CJEU) a long debated question: Are intra-EU investment arbitrations compatible with EU law? They are not,…
Columbia Arbitration Day (CAD), held on April 14, 2023, enjoyed record attendance levels this year and was held in the historic Low Memorial Library, a fitting venue for the first in-person CAD since before the COVID-19 pandemic. The Judiciary in International Arbitration Proceedings The morning began with a panel moderated by Professor Alejandro Garro…
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…
The current debate on the future of the Investor-State Dispute Settlement (ISDS) system seems not to leave anyone indifferent. Two camps can be discerned in the debate; the first comprising those who would argue that ISDS is in need of reform, and the second those who defend the ISDS system as is. The MOL v….
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 2022 New York Arbitration Week opened on 14 November 2022 with the Joint Colloquium co-organized by AAA-ICDR, ICC, and ICSID. The Colloquium tipped its hat to the Week’s overarching theme “who is in charge?” That is, why and how the objectives and expectations of various parties involved in international arbitration — such as clients,…
Despite the ongoing Russian full-scale invasion of Ukraine and constant terror, Ukrainian courts continue to function and deliver justice. Recently, the Supreme Court has adopted a landmark judgment regarding the enforcement of ICSID awards in Ukraine, which is set to change judicial practice going forward. Our colleagues previously highlighted the deficiencies of the Ukrainian court…
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…
The New York International Arbitration Center’s (“NYIAC”) annual Grand Central Forum took place on 13 July 2022. The event coincided with the 55th session of the United Nations Commission on International Trade Law (“UNCITRAL”) held in New York which, among other topics, focused on the recent fourth draft of the joint ICSID-UNCITRAL Code of Conduct…
Two years since it was published, the draft of the Code of Conduct for Adjudicators in International Investment Disputes is still subject to discussion and refinement by States and other stakeholders participating in the UNCITRAL Working Group III (WG III). This evolving instrument, developed jointly by the ICSID and UNCITRAL Secretariats, is the first attempt…
The debate surrounding the meaning and scope of the term ‘investment’ under the ICSID Convention is a product of the larger tussle between capital exporting and capital importing states, which convened at Washington in the search for a mutually beneficial agreement on foreign investments. It has been argued by Prof. Julian Davis Mortenson that ‘investment’…
On March 21, 2022, the Member States of the International Centre for Settlement of Investment Disputes (“ICSID”) approved a comprehensive reform of its rules and regulations, including the rules of procedure for ICSID arbitration proceedings (“New ICSID Rules”). Drafted over a five-year consultation process and six working papers, this profound amendment aims to “modernize, simplify,…
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)…
It is trite to suggest that the awards rendered under the aegis of the International Centre for Settlement of Investment Disputes (“ICSID”) are insulated from national court review. In the context of recognition and enforcement, national courts are not permitted to examine ICSID arbitral awards. In 2006, 50 years after the ICSID Convention came into force, commentators…
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 17 March 2022, Abu Dhabi witnessed an event which was five years in the making: a joint-conference by ICSID and the Abu Dhabi Global Market (ADGM) titled “Investment Arbitration in the Middle East”. This post recaps some highlights from the event, as well as offering further views and commentary. Event Kick-off and Its…
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,…
In 2021, ICSID conducted an extensive survey of dispute resolution clauses in bilateral investment treaties (BITs), free trade agreements (FTAs) and other treaties (including model treaties). The data set comprised more than 900 treaties, from which nearly 350 clauses were identified for closer analysis. The overarching goal of the survey was to see to what…
Before winning Peru’s presidential race in June 2021, Peruvian President Pedro Castillo vowed to withdraw Peru from the ICSID Convention and to renegotiate several of the country’s Bilateral Investment Treaties (“BIT’s”). According to the then-presidential candidate’s government plan (chapter XXI), ICSID tribunals are biased and “at the service of the multinational companies” in prejudice of…
Introduction On November 2021, an Arbitral Tribunal issued the award in an investment arbitration case commenced by three subsidiaries of Kimberly-Clark against Venezuela. The claims where brought under the BITs between Venezuela and the Netherlands (Dutch BIT), Venezuela and Spain (Spanish BIT), and Venezuela and Belgium (Belgium BIT). The award, which is highly case-specific, established…
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…
Investor-state disputes often involve an interplay of different bodies of international law. In addition to investment law, disputes may invoke issues involving public international law, international human rights law, and international environmental law – and tribunals are faced with the challenges of trying to reconcile the sometimes conflicting rights created under these different bodies of…
The International Convention on the Settlement of Investment Disputes (ICSID Convention) contains two provisions regulating compliance with arbitral awards. Article 53(1) provides that an award shall be binding on the parties. Article 54(1) requires each contracting State to recognise an ICSID award as binding. In this regard, it is common for parties to comply with…
