Foreign Direct Investment into Africa has increased from $10 billion in 19991)UNCTAD, World Investment Report (2000), p. 40. to $41,8 billion in 2017.2)UNCTAD, World Investment Report (2018), p. 38. Makhtar Diop, former World Bank Vice President for the Africa Region, pointed out that “Intra-African investment is also on the rise, creating a virtuous circle”.3)M. Diop,…
As an arbitration hub, Hong Kong has an enviable pedigree. The territory boasts a modern workable arbitration law, robust legal system, and a cohesive arbitration community. It is routinely ranked highly in indices of economic freedom; judicial independence; and perceived arbitration friendliness. In the Year of the Dog, Hong Kong’s authorities and institutions have continued…
Over the last couple of decades, arbitration, its practical aspects, but also its very notion, have faced severe attacks from a variety of critics: politicians, members of civil society, users, etc. While arbitration practitioners are actively tackling many areas of reform, the majority of these denunciations appear, for the most part, biased and overly simplistic….
In recent years, a number of arbitral tribunals adjudicating treaty-based investment disputes have been confronted with the question of what to do when the state party to such a dispute alleges that the investors acquired the investment through corrupt means. In some instances, tribunals have applied the defense as a jurisdictional bar, preventing the investors…
Last year was a busy one for arbitration practitioners in Australia and New Zealand, and 2019 looks set to be even busier. In 2018, both countries initiated a range of arbitration reforms, initiatives and negotiations which give insights into the likely general direction of travel for both countries in the coming year. This post focusses…
Young ITA has organised over fifteen successful events this year all over the world including in Sao Paolo, Buenos Aires, Guatemala City, Miami, Washington DC, New York City, London, and India. The first Dubai Young ITA talk took place on Wednesday 5 December 2018. The event hosted by Vinson & Elkins featured two panel discussions…
Very rarely would a single arbitration-related decision produce as significant an impact as the judgment of the Court of Justice of European Union (“EU” and “CJEU” respectively) in the Achmea case did during 2018. We should not doubt that Achmea will remain a cornerstone issue in the world of arbitration for a long period of…
In 2013, China proposed to jointly build the “Belt and Road” Initiative. While the international investment agreements (“IIAs”) proposed to be concluded with China and its counterparties along the “Belt and Road” will provide a robust source of potential investor protections, they must be easily understood among investors, states, and international tribunals. IIAs, as the…
While the jury is still out on whether winter is coming or has already arrived regarding ISDS and investment treaties, I would rather turn to agriculture and use the metaphor of sowing the seeds and harvesting. Since July 2010, when the European Commission published its very first Communication on ISDS and investment treaties, it has…
Commensalism of IIL Critique While the popular criticism of investment arbitration provides fertile ground for the academic proposals for ISDS reform, the latter hardly shape the development of (investment) law and even less so, its popular perception. Reform proposals are usually firmly grounded in positive law, and as such they are inherently constrained. Alternatively, general…
The decision made in the case of Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum & Natural Gas (Civ. Action No. 16-140 (D.D.C. 7 June 2018)) (“Hardy case”) is yet another decision in a string of outcomes under the New York Convention proving that the repeated adagio “if it ain’t broken,…
The CERSA (CNRS-University Paris II Pantheon-Assas) organises a series of seminars on select topics in international investment law and investor-state dispute settlement (ISDS). The purpose of these seminars is to discuss and debate such topics bringing together academics, practitioners and policymakers in a small international group in Paris. The conference about Topical issues in ISDS: Latin…
The Court of Justice of the European Union’s (CJEU) judgment in Slovak Republic v. Achmea B.V. (Achmea) on arbitration under intra-EU BITs has been broadly discussed (on this blog, see e.g. here, here, here, here, here, here and here). Nine months after the Court’s ruling, some tribunals have had the opportunity to react. Food for…
Introduction The assessment of human rights within an investment arbitration framework, typical for the investor-state dispute resolution (ISDS) mechanism, is one of the topics which has gained significant momentum in the past years, and has led even to the establishment of a Working Group on International Arbitration of Business and Human Rights. Arbitral tribunals often…
For AfricArb It is twelve years since an ICSID tribunal dismissed World Duty Free’s claim against the Republic of Kenya for breach of a lease agreement signed in 1989. As is well known, the claimant obtained the contract with a $2 million bribe to former President Moi, and the tribunal held, inter alia, that it…
The last decade has seen multiparty arbitration emerge as a contentious issue in investment treaty arbitration. Beginning with Abaclat v Argentina, investment tribunals have grappled with whether similarly-situated, but otherwise unrelated investors with distinct investments, can bundle their claims in a single arbitration. While decisions on this issue continue to evolve, a new ground for…
Introduction Unquestionably, Spain captures the highest percentage of arbitration procedures for cuts applied to renewable energies, accumulating almost thirty ongoing lawsuits from foreign investors, with claims pending in the ICSID, in the SCC and in the ICC arbitrations. Spain as the respondent was successful in the first two arbitrations, but these were unique cases and…
Introduction Political Risk Insurance (PRI) was discussed as a concept here. In fact, an earlier post discussed PRI as an alternative to investment treaty arbitration (ITA) for investors. The interaction between PRI and ITA is a germane field of study as both are risk mitigation strategies for investors and in some instances an investor can…
In the recently published award in Georg Gavrilovic and Gavrilovic d.o.o. v. Republic of Croatia (ICSID Case No. ARB/12/39)1) Georg Gavrilovic and Gavrilovic d.o.o. v. Republic of Croatia (ICSID Case No. ARB/12/39), Award, dated 26 July 2018. the tribunal considered whether the notion of attribution extends to the non-wrongful conduct of various State or State-linked…
Blockchain and cryptocurrencies (including bitcoin) have garnered significant attention in legal scholarship over the last few years, mirroring and to some extent anticipating on the public debate over the impact of blockchain technology on the new world economic landscape and the adequate level of regulatory response to such impact – Is a cryptocurrency taxable income…
Zooming out from the excellent analysis of Robert Landicho and Andrea Cohen on the specific changes that the USMCA as the intended successor of NAFTA will bring for investment protection and ISDS, this contribution will place the USMCA in a global perspective, in particular regarding the efforts of the EU to replace ISDS system with…
President Trump’s October 1, 2018 announcement that the United States, Canada, and Mexico have reached an agreement to replace the 1994 North American Free Trade Agreement (NAFTA) marks a veritable sea change in investor-state dispute settlement in the region. Previous and prospective users of NAFTA’s dispute resolution procedures will immediately note that this new free-trade…
Introduction Despite a rapid emergence at a global stage, third-party funding (TPF) appears yet as unfamiliar to businesses in the Nordic region. According to a survey included in the 2018 edition of the Roschier Disputes Index, merely 5 per cent of the Nordic companies have used TPF for financing litigation or enforcement proceedings. Arguably, these…
Introduction The judgment of the Court of Justice of the European Union (CJEU) in Case C-284/16, Slovak Republic v. Achmea B.V. (Achmea) has attracted much comment in many fora, including the Kluwer Arbitration Blog (See e.g., articles authored by Florian Stefan, Clement Fouchard and Marc Krestin, and Vivek Kapoor). This is not surprising. The CJEU…
