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…
In the last two decades, the Permanent Court of Arbitration’s (PCA) overall docket has seen a rapid growth in mixed arbitrations between States and private parties. Today, over 180 arbitrations are currently pending before PCA tribunals, of which more than 100 are investor-State disputes brought under bilateral and multilateral investment treaties and national investment laws….
As set out in our last blog post on evidentiary issues in international arbitrations, the treatment of evidence within the field of international arbitration is oftentimes inconsistent and even unpredictable from one arbitral tribunal to another, a divide which becomes even more pronounced when considering the different approaches that may be adopted due to a…
States have spent the last decade and a half rebalancing the design of their international investment agreements (IIAs). In their new-generation IIAs, states have clarified core protective standards, omitted controversial clauses, and inserted new carve-outs and general exceptions. These reformed treaties, it was hoped, would provide investment tribunals with “new analytical devices for adjudicating disputes…
Generally, the choice of substantive law applicable to a particular contract will affect the outcome of a case. It is common, however, for the evidentiary and interpretive rules to also have important implications for a case’s outcome. Arbitral rules leave such matters to a tribunal’s discretion that can be exercised in different ways. For instance,…
In 2011, in an article titled ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’, Professor Stephan Schill reflected on the prior decade of scholarly and practical developments in international investment law (IIL). He referred to the boom in specialised scholarship and the more than 400 investor-State disputes then in existence as reasons…
In 2020, we witnessed a number of interesting developments in the field of investment arbitration in Latin America. From the entry into force of the United States – Mexico – Canada Agreement (USMCA) signed over a year ago, as well as numerous cases and actions still arising from the Odebrecht scandal that became public back…
On 15 July 2020, an UNCITRAL Tribunal rendered a Partial Award on Jurisdiction in a dispute between Mr. Lee-Chin and the Dominican Republic (DR) concerning the alleged expropriation of a landfill in Santo Domingo. The arbitrators had to decide whether the arbitration clause – enshrined in Article XIII, Annex III, of the Caribbean Community-Dominican Republic…
In June 2020, the English High Court of Justice (Mr Butcher J) issued a judgment in Obrascon Huarte Lain SA & Anor v Qatar Foundation for Education, Science and Community Development dealing with an application under ss. 67 and 68(2)(b) of the English Arbitration Act 1996 (the “Arbitration Act”) for the setting aside an Addendum…
Serafín García Armas and Karina García Gruber v. Venezuela and Clorox Spain v. Venezuela are different in many aspects. García Armas relates to dual nationality, while Clorox relates to protected investment. However, they have a common feature: Article 1(2) of the Spain–Venezuela BIT was key to their developments. That article defines investments as “any kind…
