Investment Arbitration

ICSID Arbitration, ICSID Convention, International Court of Justice, Investment Arbitration, Precedent, Vienna Convention on the Law of Treaties

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It is well settled that there is no rule of precedent in investment arbitration and arbitrators are not bound by decisions rendered by previous tribunals. Nevertheless, investment arbitration practice shows that previous decisions are often observed and followed. Disputing parties and arbitrators devote significant attention to previous decisions and on several occasions arbitral tribunals rely…

Arbitration, BIT, Canada, Foreign Investment Law, ICSID Arbitration, ICSID Convention, Investment Arbitration, Middle East, Uncategorized, United Arab Emirates

(Blanke Arbitration LLC)/ /Leave a comment

In an Award on Jurisdiction rendered earlier this year under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) in ICSID Case No. ARB/11/7 – National Gas S.A.E. v. Arab Republic of Egypt (a copy of which is electronically available on the official Investment Treaty Arbitration…

Ad hoc arbitration, Annulment, Arbitral Award, Arbitral seat, Arbitration Awards, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection, Public Policy

(Mechantaf Law)/ /Leave a comment

In one of the very rare decisions issued by courts in the Arab world applying the provisions of the Unified Agreement for the Investment of Arab Capital in the Arab States (the “UAIAC”), the Cairo Court of Appeal has revived in its decision dated February 5, 2014, the principle of finality of arbitration awards, by…

ICSID Arbitration, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor

(Max Planck Institute for Comparative Public Law and International Law)/ /4 Comments

Paraphrasing Churchill, investment arbitration is the worst form of foreign investment dispute resolution, except for all the others. Post-Suez, governments are more civilised than to employ gunboat diplomacy for their own investors, and local courts are inherently partial. Achieving neutrality is the objective, and the only means: investment arbitration. This is the conventional wisdom for…

ICSID Arbitration, ICSID Convention, International Court of Justice, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Treaty, Treaty Interpretation, Vienna Convention on the Law of Treaties

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One of the recurrent controversial issues in the investment arbitration practice relates to the application of the general rule of treaty interpretation of the Vienna Convention on the Law of Treaties in the interpretation of the provisions of the ICSID Convention and of investment treaties in general. Thomas Wälde in one of his last writings…

International Law, Investment Arbitration, NAFTA, Res Judicata

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The recently published Award in Apotex Holdings Inc. and Apotex Inc. v. United States of America (Apotex III Award) is the first NAFTA award to apply the doctrine of res judicata. The Apotex III Tribunal confirmed that the operative part, together with the underlying reasoning, of an earlier award determined that Apotex’s abbreviated new drug…

ICSID Arbitration, ILC Articles on State Responsibility, Investment, Investment Arbitration, Investment protection, Investor, Moral Damages

(University of the Pacific, McGeorge School of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Let’s get this straight: When awarded to persons, including foreign investors, moral damages are compensatory in nature. They are not discretionary. They are not symbolic. They are not exemplary. They are not punitive. Rather, as the commentary to the ILC Draft Articles 36 and 37 on State Responsibility notes, “[c]ompensable personal injury encompasses not only…

Arbitration Agreements, BIT, Investment, Investment Arbitration

(Hogan Lovells)/ /1 Comment
Hogan Lovells

On 29 September 2014, the European Commission (EC) and the US initiated the seventh round of negotiations for the conclusion of the Transatlantic Trade and Investment Partnership (the TTIP).1)Delegation of the European Union to the United States, “7th Round of TTIP Negotiations”. Available at:https://www.euintheus.org/press-media/7th-round-transatlantic-trade-and-investment-partnership-ttip-negotiations/ The negotiations began in July 2013 after the EC received its…

Hearings, Investment Arbitration, NAFTA, Non-Disputing NAFTA Parties

(Wayne State University)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Procedural orders rarely become the subject of blog posts, much less the impetus for concerted action among states anxious to control the strategic space on which investment treaty arbitrations unfold. However, a series of orders in Detroit International Bridge Company v. Canada generated controversy when the tribunal steadfastly excluded representatives of the United States from…

BIT, Expropriation, Fair and Equitable Treatment, Investment, Investment Arbitration, Investor, Most Favoured Nation (MFN), Switzerland, Treaty, UNCITRAL Transparency Rules

(Homburger), (Quinn Emanuel Urquhart & Sullivan), and (Homburger )/ /Leave a comment
ArbitralWomen

The views expressed in this article are those of the authors alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the authors’ respective law firms. While the press has been full lately of a reported backlash against investment arbitration, Switzerland has been making quiet progress in its efforts to update…

Arbitration, Energy, Investment Arbitration

(Bocconi University)/ /1 Comment
Arbitrator Intelligence

A few weeks ago, the day before the Obama Administration and the EU announced dramatic new sanctions against Russia, an international tribunal announced a $50 billion award against Russia in favor of a group of oil investors. The current violence engulfing Iraq has multiple satellite arbitration disputes over oil sales to Turkey. Recent violence on…

ICSID Convention, Investment Arbitration, Transparency in investment arbitrations, UNCITRAL Rules on Transparency

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Transparency is one of the hot topics in international law. With governance functions increasingly shifting from the domestic to the international level, transparency is demanded, as Andrea Bianchi and Anne Peters show in their new seminal study, in order to compensate for the lack of a full-fledged international system of checks and balances. Transparency promises…

BIT, Investment, Investment Arbitration, Jurisdiction, Most Favoured Nation (MFN)

(Herbert Smith Freehills)/ /Leave a comment
Herbert Smith Freehills

The debate regarding the extent to which most favoured nation (‘MFN’) clauses in bilateral investment treaties (‘BITs’) can expand the scope of application of such treaties is a well-established and evolving dialogue in investment treaty jurisprudence. However, while the issues around the extension of substantive and procedural protections in BITs have received considerable attention, the…

Australia, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor

(University of Sydney & Williams Trade Law)/ /Leave a comment

Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration). India announced a review in 2013, partly in the wake of the successful claim from an Australian mining investor, although the impact in practice is hard to discern or predict – especially under the…

Exhaustion of Local Remedies, International Law, Investment, Investment Arbitration, Investment protection, Investor, NAFTA

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

In its Award on Jurisdiction and Admissibility, a unanimous tribunal in Apotex, Inc. v. United States dismissed a Canadian manufacturer’s claims that the United States judiciary had violated NAFTA by mis-applying a regulatory time period. Most of the reaction to Apotex has focused on the tribunal’s decision that the claimant’s activities in the United States—and…

ICSID Arbitration, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Latin America

(Pinheiro Neto Advogados)/ /Leave a comment

Investment arbitration is a crucial and sensitive dispute-resolution method, notably because the treatment given to foreign investment matters may materially affect the economic and social realities of a country or region, particularly those in development. In the last decade, however, as already reported and addressed in this blog by, among many others, Vanessa Giraud and…

ICSID Arbitration, Investment Arbitration, Latin America

(González-Bueno & Asociados)/ /Leave a comment

By Carlos González–Bueno and Laura Lozano, González-Bueno & Asociados, Madrid. It is commonly understood that Latin American countries have played an important dominant role as respondents in ICSID cases. This has led to the withdrawal from the ICSID Convention by several Latin American countries. Interestingly, however, according to recent ICSID statistics, cases filed against Latin…

Arbitral Award, Arbitration Institutions and Rules, BIT, Enforcement, India, Investment, Investment Arbitration, Investment protection

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and Sapna Jhangiani, Clyde & Co. and Joseph P. Matthews J.D., University of Miami School of Law for Young Arbitration Practitioners It has been some time since the White Industries Australia Limited v Republic of India judgment was rendered against India in 2011. However, there remain several interesting aspects of the case still not widely…

Annulment, ICSID Arbitration, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor

(International Moot Court Competition Association (IMCCA))/ /7 Comments

and Oleg Temnikov Foreword The recent decision on preliminary objections, dated 17 January 2014, against the application for annulment in Elsamex S.A. v. Honduras (ARB/09/4) brought renewed interest in the procedure for summary dismissal of unmeritorious claims under Rule 41(5) of the ICSID Arbitration Rules. The present post examines shortly this procedure as well as…

Investment agreements, Investment Arbitration, Investment protection, Investor, Turkey

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

Although Turkey has ratified the ICSID Convention as early as in 1988, it was not until the recent decade that its domestic law recognized the possibility to resort to arbitration against the State. Until 2000s, disputes arising between a public authority and a private party were to be resolved in an appeal to administrative courts…

Energy, Investment, Investment Arbitration, Investor

(Quinn Emanuel Urquhart & Sullivan, LLP)/ /Leave a comment

Every now and then the arbitration society witnesses the filing of investor-state disputes in fields previously ‘unharmed’ by the spotlight of investment adjudication. Perhaps the most recent example is the ‘hydraulically fractured’ shale gas dispute against Canada (see Lone Pine v. Canada). In a similar manner, the Vattenfall II dispute over Germany’s nuclear phase-out has…

Investment Arbitration, Latin America

(The Center for American and International Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

For more information about ITAFOR, click here. To subscribe to ITAFOR, click here. The Institute for Transnational Arbitration (ITA), the Asociación Latinoamericana de Arbitraje (ALARB) and the Comitê Brasileiro de Arbitragem (CBAr), are pleased to announce the launch of a new online forum for the discussion of pertinent legal issues relating to arbitration of Latin…

ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Latin America

(D'Empaire Reyna, Abogados)/ /1 Comment

Over the years Latin American countries have played an increasingly relevant role in the International Centre for Settlement of Investment Disputes (the “ICSID”), with the highest proportion – 27% – of all cases handled by the Centre. Despite the high percentage these same countries have been increasingly expressing their dislike about having to resolve their…

Investment, Investment Arbitration, Settlement

(Covington and Burling LLP)/ /Leave a comment

On February 27, 2014, Repsol S.A., Repsol Capital S.L. and Repsol Butano S.A. (collectively, ‘Repsol’), entered into a settlement agreement with Argentina, whereby Argentina agreed to pay Repsol $5 billion in USD denominated bonds as compensation for the expropriation of Repsol’s fifty-one percent shareholding in YPF S.A. and YPF Gas (the ‘Settlement Agreement’). Under the…