Investment Arbitration

Environment, Environmental protection, Human Rights, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investor-State arbitration, ISDS

(Georgetown Law) and (Columbia Law School)/ /Leave a comment

This is the sixth 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, here, and here). As we emphasized last year, developments at this intersection continue directional trends from prior years. In particular, the continued reliance…

2024 in Review, International arbitration, Investment Arbitration, Latin America

(Herbert Smith Freehills), (BakerHostetler), and (Barbosa, Müssnich & Aragão Advogados – BMA)/ /Leave a comment

Latin America continues to be a hotspot for investment arbitration. In 2024, investment arbitration in Latin America saw significant activity and notable developments. In addition to seeing a steady increment in arbitration cases, 2024 witnessed important legal reforms and evolving trends that are reshaping the region’s approach to investment and investor-State dispute settlement (“ISDS”). This…

Africa, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection

(Tilburg Law School)/ /Leave a comment

The Patel Engineering Limited (“PEL”) v the Republic of Mozambique tribunal, constituted under the UNCITRAL Arbitration Rules, dealt with pre-investment expenditures and whether such expenditures constitute a protected investment. Investors frequently make expenditures in the preparatory phase of an investment, such as environmental impact assessments, scientific surveys, or financial advice. When are these expenditures considered…

Access to Justice, Achmea, Europe, European Convention on Human Rights, German Federal Constitutional Court, Germany, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment Arbitration, Investor-State arbitration, ISDS

, (Fietta LLP)/ /Leave a comment

On 13 September 2024, the German Constitutional Court (Bundesverfassungsgericht, “BVG” or “the Court”) published two judgments dated 23 July 2024 (available here and here, both in German), accompanied by a press release (here), rejecting as inadmissible two constitutional complaints brought by the claimant in the Eureko (later Achmea) v Slovakia (1) arbitration (“BVG Judgments”).  While other commentators…

Conference, Denial of Benefits, Investment Arbitration, UNCITRAL WG III Series

, (KNOETZL)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

On 23 September 2024, the third ITA Roundtable at an UNCITRAL Working Group III (“UNCITRAL WG III”) session took place at the offices of KNOETZL. Anna Joubin-Bret, Secretary of UNCITRAL, and Jurgita Petkute, Partner at KNOETZL, gave introductory remarks. Dr. Crina Baltag from Stockholm University moderated the discussion of the panel consisting of Lorena Fatás…

Ecuador, Investment Arbitration, Investment Disputes, ISDS, Latin America

(FWO - Ghent University)/ /Leave a comment

On March 27, 2024, an arbitration tribunal issued its Phase II award in the EcuadorTLC v. Ecuador II case (“EcuadorTLC II”), a decision that has flown under the radar of systemic analysis. This case is one of a number of new Ecuadorian arbitration cases (here, here) that have come into the public eye in the…

Achmea, EU Law, German Federal Constitutional Court, International Investment Arbitration, International Investment Law, Intra-EU BITs, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment Arbitration, ISDS

(Schellenberg Wittmer)/ /Leave a comment

On March 6, 2018, the Court of Justice of the European Union (“CJEU”) delivered its (in)famous Achmea judgment (Case C-284/16), which subsequently became synonymous with the demise of investor-state arbitration in bilateral investment treaties between Member States of the European Union (“intra-EU BITs”). In this decision, the CJEU concluded that investor-state arbitration clauses in intra-EU…

Eastern Europe, Foreign Investment Law, Investment Arbitration

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Kosovo Law No. 04/L-220 on Foreign Investment (hereinafter, the “2014 Law on Foreign Investment”), which safeguarded foreign investors as a key element in promoting international economic cooperation and attracting foreign capital, has now been replaced by Law No. 08/L-209 on Sustainable Investments (hereinafter, the “2024 Law on Sustainable Investments”). The purpose of the 2014 Law…

Canada, ICSID, ICSID Arbitration, Investment Arbitration, Investor-State arbitration, NAFTA, Suspension of Proceedings, USMCA

(Carleton University)/ /Leave a comment

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…

Artificial Intelligence, Investment Arbitration, National Security, Technology

(Herbert Smith Freehills)/ /Leave a comment

The rapid progression of technology is transforming industries and reshaping global geopolitical dynamics. With the rise of generative artificial intelligence (“AI”) and explosive share growth, US tech giants – such as Microsoft, Nvidia, Apple, Alphabet, and Amazon – dominate the list of the world’s most valuable companies. Amid concerns over the influence tech companies wield,…

Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Latin America, Uruguay

(CMS Grau )/ /Leave a comment
Asociación Latinoamericana de Arbitraje (ALARB)

On February 13, 2024, a tribunal comprising of Alexis Mourre, Eduardo Siqueiros and Eduardo Zuleta Jaramillo rendered an award in the case of Latin American Regional Aviation Holding S. de S.R.L. v. Uruguay (ICSID Case No. ARB/19/16), under the Panama – Uruguay bilateral investment treaty (the “Treaty”). The dispute concerned Uruguay’s national airline Pluna, where…

Anti-enforcement Injunction, Energy Charter Treaty, Enforcement, Germany, Injunction, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment Arbitration, Spain

(University of Cologne (International Investment Law Centre))/ /Leave a comment

On 12 April 2024, the Regional Court of Essen (“LG Essen”) dismissed Spain’s request for an anti-enforcement injunction of an intra-EU investor-state arbitration award (2 O 447/22). The LG Essen held that anti-enforcement injunctions are inadmissible because they violate state sovereignty. This blog post will cover the facts and background of the decision, examine the…

Energy, International agreement, Investment Arbitration

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If an international arbitration practitioner hears “renewable energy,” “renewable energy source,” (“RES”) or even “energy transition” disputes, chances are that he or she may think of the Energy Charter Treaty (“ECT”) and the torrent of claims filed by investors against European Union (“EU”) Member States. These claims challenge retroactive regulatory changes to feed-in tariff and…

Denial of Benefits, Energy Charter Treaty, EU Law, European Commission, European Union, Investment Arbitration

, (Pinsent Masons)/ /Leave a comment

The European Commission’s “Proposal for a Council Decision on the partial suspension of the application of the Energy Charter Treaty between the Union and any legal entity that is owned or controlled by citizens or nationals of the Russian Federation or of the Republic of Belarus, and any Investment within the meaning of the Energy…

Constitutional Court, Ecuador, ICSID Arbitration, International arbitration, International Investment Arbitration, Investment Arbitration, Investor-State arbitration, ISDS, Latin America, Trade and investment agreements

, , (Tadir Dispute Resolution)/ /1 Comment

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…

Brexit, ECT Modernisation, ECT Withdrawal, Energy Charter Treaty, England, Investment Arbitration, UK

(Luther Rechtsanwaltsgesellschaft mbH)/ /Leave a comment

At the end of February 2024, the United Kingdom (“UK”)’s Energy Security and Net Zero Minister Graham Stuart announced his country’s decision to withdraw from the Energy Charter Treaty (“ECT”). On 28 May 2024, the Energy Charter Secretariat revealed in a press release that the UK’s formal notification of withdrawal had already been received by…

foreign direct investment, Foreign Investment, Free Trade Agreements, India, Investment, Investment agreements, Investment Arbitration, Investment law, Investment protection, Investment Treaties, Investor, Investor duties, Investor-State arbitration, ISDS, Protection, State-State Dispute Settlement, State-to-state arbitration

(Jindal Global Law School)/ /Leave a comment

It took 16 years of negotiations for India and the European Free Trade Association (“EFTA”)—comprising Switzerland, Norway, Iceland, and Liechtenstein—to clinch a free trade agreement (“FTA”). The newly minted FTA is expected to boost the extant levels of trade between the two countries. The formal name of the signed agreement is the Trade and Economic…

Bonds, Investment Arbitration, Investment Disputes, Investment protection, ISDS, LIDW 2024

(Herbert Smith Freehills)/ /Leave a comment

As part of the 2024 edition of the London International Disputes Week (“LIDW”), Reed Smith LLP hosted a panel on “Bank Collapse and ISDS: Arbitration Strategy and Dramatis Personae”. The panel, moderated by Lucy Winnington-Ingram (Reed Smith), comprised Kathleen Garrett (Reed Smith), Cameron Miles (3 Verulam Buildings), Lorena Fatás Pérez (Ministry of Justice of Spain),…

Arbitration, Energy, Energy Charter Treaty, Energy Dispute, EU Law, European Law, Investment, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, Investor-state tribunals, Italy, Jurisdiction of the arbitral tribunal, Jurisdictional challenge, Renewable energy

(Università degli Studi di Trento)/ /Leave a comment

On March 11, 2024, an ICSID arbitral tribunal (Juan Fernández-Armesto (President), Wendy Miles, Alexis Mourre), rendered an award in Encavis AG and Others v. Italy. The controversy follows some other 14 disputes initiated by EU investors against the Italian State under the Energy Charter Treaty (“ECT”) (some of these discussed here) and falls into the…

Canada, CETA, Europe, European Commission, European Union, Expedited arbitration, Expedited Proceedings, Expropriation, Fair and Equitable Treatment, FET, International Investment Arbitration, International Investment Law, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, ISDS

(Clifford Chance)/ /Leave a comment

Although parts of CETA have been provisionally applied since 21 September 2017, the parts not subject to provisional application – including the investment chapter (CETA’s Chapter Eight) which covers investment protection and dispute resolution – are still pending domestic ratification procedures in 10 EU Member States. In parallel, CETA’s framework for investment protection and dispute…

Access to Justice, Albania, Arbitral Award, Arbitration, Enforcement, European Court of Human Rights, Foreign arbitral awards, Investment Arbitration, Investment Disputes, Investor-State arbitration, Investor-state tribunals, ISDS, Recognition, Recognition and enforcement of arbitral award

, (Fietta LLP)/ /Leave a comment

On 5 March 2024, the European Court of Human Rights (“ECtHR” or “the Court”) delivered its judgment in Iliria S.R.L. v. Albania (“Iliria”), a case concerning a complaint under Article 6(1) of the European Convention on Human Rights (“ECHR” or “the Convention”) relating to a more than 17-year delay in the conclusion of recognition (exequatur) proceedings…

Achmea, BIT, CJEU, Domestic Courts, ECT Withdrawal, Energy Charter Treaty, Europe, foreign direct investment, Foreign Investment, International arbitration, Intra-EU Investment Arbitration, Investment Arbitration

, (Clifford Chance)/ /Leave a comment

On 25 April 2024, the European Federation for Investment Law and Arbitration (“EFILA”) held its 9th Annual Conference at Clifford Chance in Frankfurt. The conference was opened by the Chair of the Executive Board of EFILA, Mirjam van de Hel (NautaDutilh) who underscored the importance of discussing the impact of geopolitical uncertainties on international arbitration…

Climate change, Investment Arbitration, Investor-State arbitration

(Climate Change Counsel)/ /Leave a comment

On 24 April 2024, the European Parliament voted for the EU to withdraw from the Energy Charter Treaty (“ECT”). Three days earlier, Ecuador had voted to keep the country’s constitutional ban on investor-state arbitration. These events mark the last chapters in the increasingly turbulent tale of investment treaties and investor-state arbitration. Over the past few…

CJEU, Corruption, Enforcement, Immunity, Intra-EU ISDS, Investment Arbitration, Paris Arbitration Week, Public Policy

, , (Curtis, Mallet-Prevost, Colt & Mosle LLP)/ /Leave a comment

As part of 2024 Paris Arbitration Week, Curtis, Mallet-Prevost, Colt & Mosle LLP hosted a webinar on “Swords and Shields: Navigating Current Trends in Enforcing Arbitral Awards.” The event featured Sebastiano Nessi, Loujaine Kahaleh, and Juan Perla, and was moderated by Geoffroy Lyonnet. The panel examined recent trends in the enforcement of arbitral awards, starting…