Investment Arbitration

2018 In Review, Arbitration, Australia, Investment Arbitration, Investment Treaties, ISDS, ISDS Reform, New Zealand

(Australian National University)/ /Leave a comment

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…

Investment, Investment Arbitration, MENA, Middle East, Organization of Islamic Cooperation, Qatar

(DWF (Middle East) LLP)/ /Leave a comment
Young ITA

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…

2018 In Review, Achmea, Europe, European Commission, International Investment Arbitration, Intra-EU BITs, Investment, Investment Arbitration, Investment protection, ISDS Reform

(Colibra Insurance)/ /Leave a comment

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…

Belt Road Initiative, BIT, China, Investment agreements, Investment Arbitration, Investment Treaties, Investor-State arbitration, ISDS, ISDS Reform

(Southwest University of Political Science and Law, Chongqing, China)/ /Leave a comment

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…

Achmea, CETA, Intra-EU BITs, Investment agreements, Investment Arbitration, Investment law, Investment protection, Investment Treaties, ISDS, ISDS Reform

(NL-Investmentconsulting)/ /Leave a comment

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…

Arbitration, Arbitration Proceedings, Investment Arbitration, Netherlands draft model BIT

(Queritius)/ /Leave a comment

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…

Arbitration, Arbitration Awards, Arbitration Proceedings, Enforcement, International arbitration, Investment Arbitration, New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Public Policy, United States, USA

(Albright StoneBridge Group)/ /Leave a comment

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,…

BIT, ICSID, Investment Arbitration, ISDS Reform, Latin America, USMCA

(Concepción Global, PLLC, Universidad Complutense de Madrid)/ /Leave a comment

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…

Achmea, Croatia, Energy Charter Treaty, Germany, Hungary, Investment Arbitration, Investment Treaties, Slovakia, Spain

(Linklaters LLP) and (Linklaters)/ /Leave a comment

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…

Human Rights, ICSID, ICSID Arbitration, Investment, Investment Arbitration, Investment law, Investment protection, Investment Treaties, Investor, Investor duties, Investor-State arbitration, ISDS

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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…

Africa, Arbitration, Arbitration Awards, Arbitration Proceedings, Corruption, Investment Arbitration, Kenya

, (Hogan Lovells)/ /Leave a comment

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…

Derivate Contracts, Derivative Claims, Investment Arbitration, Investment Treaties, Investor-State arbitration, Multiple parties, NAFTA

(University of Bristol )/ /Leave a comment

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…

Achmea, Investment Arbitration, Investment Treaties, Mediation, Spain

(Galvez Pascual SLP)/ /Leave a comment

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…

Insurance, Investment Arbitration, Investment Treaties, Political Risk Insurance

(Nishith Desai Associates)/ /Leave a comment

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…

Attribution, ICSID Arbitration, ILC Articles on State Responsibility, Investment Arbitration, Investment protection, Investor-State arbitration

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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, Cryptocurrency, Investment Arbitration

(Terrien Avocat) and (Quinn Emanuel Urquhart & Sullivan LLP)/ /Leave a comment

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…

CETA, Investment Arbitration, ISDS, NAFTA, USMCA

(NL-Investmentconsulting)/ /Leave a comment

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…

Canada, Investment Arbitration, Investment protection, Investment Treaties, Investor-State arbitration, ISDS, Mexico, NAFTA, USA, USMCA

, (Vinson & Elkins LLP)/ /Leave a comment
Young ITA

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…

Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, Costs, Costs in arbitral proceedings, International arbitration, Investment Arbitration, Sweden, Third party funding

, , (Roschier Attorneys, Ltd.)/ /Leave a comment

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…

Achmea, Arbitration, BIT, European Union, Investment Arbitration, Principle of proportionality, Slovakia

(University College Cork)/ /1 Comment

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…

Arbitration, Arbitration Awards, Arbitration Proceedings, BIT, Bolivia, Clean Hands Doctrine, General Principles of International Law, International arbitration, Investment Arbitration

, (Aceris Law)/ /Leave a comment

The arbitral tribunal in Glencore Finance (Bermuda) Limited v. Bolivia has recently hinted at its intent to address an old question: What is the doctrine of “clean hands” in investment arbitration? On 31 January 2018, an arbitral tribunal composed of Professor Ricardo Ramírez Hernández, Professor John Gotanda and Professor Philippe Sands issued a Procedural Order…

Commercial Arbitration, Construction arbitration, Dispute, Goverment Procurement, Investment Arbitration, Prevention, regulation, WTO

(TILPA - INTERNATIONAL TRADE AND INVESTMENT LAW)/ /Leave a comment

This is one of the five construction arbitration posts, providing the technical discussion from the SCAI, CAM, TILPA conference in Geneva and Mexico City.  The authors include: Ms Almudena Otero De La Vega (on State enterprises) Ms Tanya Landon & Ms Azal Khan (on evidence), Dr Manuel Arrollo (on multiple procedures), Mr Serge Y. Bodart…

Arbitration, Arbitration Proceedings, ICSID, ICSID Arbitration, ICSID Convention, Investment Arbitration, Mediation, Negotiation

(Albright StoneBridge Group)/ /Leave a comment

In the world of International Arbitration (“IA”), one distinguishes between commercial arbitration and investment arbitration, the latter widely referred to as Investor-State Dispute Settlement or ISDS, as a dispute resolution mechanism based on bilateral treaties, multilateral treaties, and free trade agreements. IA is lauded as the best method for dispute resolution in international trade. This…

India, Injunction, Investment Arbitration

(Wadia Ghandy & Co)/ /2 Comments

A plethora of business transactions today have evolved into complex structures of multi-faceted sub-transactions. Multiple parties enter into several distinct, yet interconnected and interdependent agreements towards achieving a common commercial goal. Every so often, however, one or more of these interconnected agreements will lack an arbitration agreement; whereas the others will contain similar/related arbitration clauses….