Last month I was privileged to organize a conference at the University of Notre Dame’s London Global Gateway on the topic of UK trade and Brexit. The conference had three sessions: (1) UK trade negotiations with the EU; (2) UK trade negotiations outside the EU; and (3) UK’s post-Brexit status within the WTO. You can…
“Help! I need somebody Help! Not just anybody Help! You know I need someone, help … And now my life has changed in oh so many ways, My independence seems to vanish in the haze …” Help raises a question of need, but does it lead to a loss of the fundamental decision-making power vested…
Investment obligations and investor-State arbitration provisions normally have been negotiated under bilateral investment treaties (BITs), or, more recently, in the larger context of free trade agreements (FTAs). For investment provisions, the movement from BITs to FTAs recently has taken an additional, significant step: the negotiation of such provisions in the even larger context of mega-regional…
Co-authored with: Oleg Temnikov, Wolf Theiss Background In a recent award issued in the case of CEAC Holdings Limited v. Montenegro (ARB/14/8, Award, 26 July 2016) the arbitral tribunal had to decide whether CEAC Holdings Limited (hereinafter: “CEAC”) was a protected investor within the meaning of the applicable Cyprus–Serbia and Montenegro BIT. Under Article 1…
Part I of this two-part blog post summarized the recent judgment of the Singapore Court of Appeal (“SGCA” or the “Court”) in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). This Part II provides some comments on that judgment and its significance, including its impact on future Singapore court…
On 29 September 2016, the Singapore Court of Appeal (“SGCA” or the “Court”) released its much-anticipated judgment in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). In a carefully reasoned decision, Singapore’s apex court reversed a decision of the Singapore High Court, which had previously held that an UNCITRAL…
If James Bond practiced law, it would be international arbitration. Don’t believe me? Just consider how many international arbitration cases could be great plots for a James Bond movie. Take, for example, the case in which an Israeli investor was arrested in Tbilisi and jailed following a cognac-laced sting operation that caught the investor on…
The Trans-Pacific Partnership free trade agreement, signed on 4 February 2016 among 12 Asia-Pacific economies, faces a rocky road to ratification. In the run-up to the US presidential election in November, both Donald Trump and (for now) Hillary Clinton say they are opposed. Yet Australian Prime Minister Turnbull urged President Obama to put the FTA to a vote in Congress…
For more than a decade, Argentina has been living in a permanent crisis, which affected all sectors of the economy and turned out in an avalanche of investment cases, many of them under the ICSID Convention. Thus, Argentina became one of the most active players in the investor-state dispute settlement system, facing almost 60 cases…
Climate change is a serious threat to humankind. The sources of the problem are many, requiring a multidimensional approach to find practical and viable solutions. In the last several years, awareness of the issue has been addressed in the public domain, by international community, and civil society. This publicity has resulted in States taking concrete…
On 7 July 2016, the UNCITRAL Commission adopted a revised and updated version of the UNCITRAL Notes on Organizing Arbitral Proceedings. The 2016 Notes replace a 1996 edition, and aim to flag procedural issues typically associated with arbitral proceedings. They include guidance on matters such as the language(s) of the proceedings, confidentiality and transparency, and…
With the rise of populist politics in the 2016 U.S. presidential election and the Brexit referendum, it is not surprising that trade in general, and the Trans-Pacific Partnership in particular, have become lightning rods for controversy. The proposed treaty’s provisions on trade, investment, and intellectual property have drawn passionate criticism from both old and new…
Introduction On 23 May 2016, CIETAC’s Hong Kong Arbitration Center (CIETAC HKAC) issued for public consultation draft Guidelines for third party funding (the draft Guidelines). Third party funding (TPF) is a hot topic in Hong Kong. The draft Guidelines come in the wake of recent initiatives to clarify the law on TPF in the territory,…
More recent generations of investment treaties tend to include explicit provisions requiring claimants in investor-State arbitrations to submit waivers that – depending on the actual terminology used in these waiver provisions – generally seek to bar them from submitting their claims to other forums, such as through litigation before domestic courts or parallel international proceedings….
When allocating costs, investment arbitration tribunals apply two principles: a “pay your own way” principle which provides that each party pays its own legal costs and they effectively share the costs of the proceedings, and secondly a “costs follow the event” or “loser pays” principle which provides that the losing party bears the costs of…
Gramercy Funds Management LLC, a U.S.-based hedge fund (“Gramercy”), recently filed a notice of arbitration against the Republic of Peru pursuant to the investment chapter of the U.S.-Peru Trade Promotion Agreement (“U.S.-Peru TPA”), seeking USD 1.6 billion in damages. Although Peru announced that it filed an initial response to Gramercy’s notice in early July, the…
As part of its centenary celebrations in January 2017, the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”) will be launching updated rules. Drafts of the revised SCC Arbitration Rules and Rules for Expedited Arbitrations are now available on the SCC website. A public hearing was held in Stockholm on June 9 to discuss the…
The recently published Philipp Morris v Australia award concerning Australia’s plain packaging of cigarettes legislation contains important indications regarding the conditions for the timely structuring of investments in order to be able to initiate investment arbitration proceedings. Background of the case Philip Morris International (PMI), a company incorporated in New York, produces cigarettes and owns…
The Asian economy is considered an engine of global economic growth, accounting for almost two-thirds of forecasted global economic growth for 2016.1)“Asia: Growth Remains Strong, Expected to Ease Only Modesty”, International Monetary Fund Survey Magazine, 3 May 2016, https://www.imf.org/external/pubs/ft/survey/so/2016/CAR050316B.htm. Over the last decade, the flows of foreign investment into and out of Asia have consistently…
YAI TALKS#, a new conversation series launched by the ITA Young Arbitrators Initiative (YAI) under the leadership of YAI chair Montserrat Manzano (Von Wobeser y Sierra, Mexico City) and vice chair Silvia Marchili (King & Spalding, Houston), kicked off on May 12 in Washington, D.C., with a debate on claims by dual nationals against countries…
On 4 April 2016, the Singapore Court of Appeal heard an appeal from Sanum Investments Limited (“Sanum“) (a Macanese company) against the High Court’s decision holding that an arbitral tribunal hearing Sanum’s claim against Laos for expropriation under the China-Laos bilateral investment treaty (the “BIT“) had no jurisdiction. The issue of the tribunal’s jurisdiction turns…
No less than two years ago, in a series of related judgments (the NML Ltd et al. v the Republic of Argentina saga), the French Court of cassation gave greater protection to state immunity from execution.1)G. Travaini, State 1 – Investor 0: Recent French Decisions regarding Sovereign Immunity from Execution, Kluwer Arbitration Blog (27 August…
The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm. On 12 November 2015, in the context of its negotiations for the Transatlantic Trade and Investment Partnership (TTIP) and in a bid to address growing criticism…
The Government of the Republic of India has adopted a revised text of the former 2003 version of its Model Bilateral Investment Treaty (BIT). Having entered into effect in December 2015, this text is intended to serve as a template for negotiations of India’s existing and future investment relations with countries around the world, including…
