Investment Arbitration

Confidentiality and Transparency, Investment Arbitration, Transparency in investment arbitrations, UNCITRAL Transparency Rules

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

On 11 July 2013, the United Nations Commission on International Trade Law (“UNCITRAL”) adopted new Rules on Transparency in Treaty-based Investor-State Arbitration (the “Transparency Rules”), which will come into effect from 1 April 2014. The new rules provide for public access to documents generated during treaty-based investor-state arbitrations (but not commercial arbitrations) brought under the…

Investment Arbitration, Investment protection, Transparency in investment arbitrations, Treaty

(Independent Arbitrator)/ /Leave a comment

Readers of this blog may be interested to know of an opportunity to participate in the creation of a forthcoming special issue of Transnational Dispute Management (TDM), entitled “Reform of Investor-State Dispute Settlement: In Search of A Roadmap.” Co-edited by myself (Arnold & Porter LLP and Georgetown University Law Center) and Anna Joubin-Bret (Cabinet Joubin-Bret…

Confidentiality, Costs, Efficiency, Investment Arbitration, Mediation

(Independent Arbitrator)/ /1 Comment

Getting over the skepticism.  Since the International Bar Association adopted its Rules for Investor-State Mediation last October, there has been an uptick in discussions regarding the topic, including a mock mediation panel presented this spring during the American Society of International Law’s Annual Meeting.  Nonetheless, investor-State mediation still faces skepticism from many arbitration professionals, both…

Annulment, ICSID Convention, Investment Arbitration

(Arnold & Porter LLP)/ /Leave a comment

Article 52(4) of the ICSID Convention identifies the provisions of the Convention that apply, mutatis mutandis, to annulment proceedings:  “[t]he provisions of Articles 41–45, 48, 49, 53 and 54, and of Chapters VI and VII . . . .”  While there is wide agreement that an annulment committee may neither “amend or replace the award…

Arbitration, Conciliation, Confidentiality, Dispute Resolution, Investment Arbitration, Uncategorized

(University of Portsmouth)/ /5 Comments
Institute for Transnational Arbitration (ITA)

Over the last two decades the world has witnessed a spectacular growth of investor-state dispute resolution by arbitration (i.e. from a few dozen in 1992 shooting up to 514 cases by the end of 2012). But that trend could stall in the foreseeable future with the realization of the users that international arbitration (investor-state arbitration,…

BIT, Eastern Europe, Investment Arbitration, Uncategorized

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

The recent Rompetrol Group NV v Romania award provides rare guidance as to the requirements to be satisfied for a successful treaty claim arising from State conduct against individual company officers rather than the claimant investor itself. The investor claimed, inter alia, that the arrest, detention, criminal investigations and wire-tapping of its directors constituted State-sponsored…

Arbitration Institutions and Rules, ICSID Convention, Investment, Investment Arbitration, South America

(Universidad Monteávila (Caracas))/ /Leave a comment

On April 22, 2013, representatives of Members States of the Bolivarian Alliance for the Americas (“ALBA” for its acronym in Spanish) met in Guayaquil, Ecuador. The purpose of the meeting was to discuss the manner in which their interests are affected by the activities carried out by transnational companies, under a reunion known as the…

Arbitral Tribunal, Arbitration Awards, Arbitration Institutions and Rules, Costs in arbitral proceedings, International arbitration, Investment Arbitration, Singapore International Arbitration Centre, Witness

(Wilmer Cutler Pickering Hale and Dorr LLP)/ /Leave a comment
WilmerHale

The Singapore International Arbitration Centre (“SIAC”) has issued new rules that came into force on April 1, 2013. The rules changes are accompanied by new Practice Notes for cases administered by SIAC under its rules and the UNCITRAL rules that also came into force on the same date. While the changes do not reflect a…

BIT, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection

(International Moot Court Competition Association (IMCCA))/ /1 Comment

and Oleg Temnikov I. Bureau Veritas v. Republic of Paraguay In the recent Further decision on objections to jurisdiction dated October 9, 2012 the tribunal in Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Paraguay (ICSID Case No. ARB/07/9) dismissed BIVAC’s claim based on violation of the fair and equitable standard by reasoning…

Applicable Law, BIT, ICSID Convention, Investment, Investment agreements, Investment Arbitration

(Colibra Insurance)/ /Leave a comment

In Part I it was argued that the proper law applicable in the investor-State disputes under Article 42 (1) ICSID Convention depends on the substantive grounds of the investor’s claim. In support of this, I have outlined three factual scenarios and types of claims with evidence from case law. Part I dealt with host State…

Applicable Law, BIT, ICSID Convention, Investment, Investment agreements, Investment Arbitration

(Colibra Insurance)/ /Leave a comment

Rationalizing applicable law in investor-State disputes in absence of express choice of law under Article 42 (1) of ICSID Convention PART I Article 42 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) determines the powers of an arbitral tribunal constituted under the ICSID Convention as…

BIT, ICSID Convention, Investment, Investment Arbitration

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

and Oleg Temnikov There is a Taoist fable of the three stupid men who were traveling together from one village to the next. They rested for the night under a banyan tree. In the morning, it turned out that the travelers have forgotten whose shoes are whose. Because none of the three men was able…

Applicable Law, Arbitral Tribunal, Arbitration, Arbitration Awards, Investment agreements, Investment Arbitration, Uncategorized

(University of Victoria Faculty of Law)/ /Leave a comment

At a conference a few years back, a well-known and respected arbitrator was speaking on the topic of predictability and consistency of arbitral decision making in investment treaty arbitration.  The arbitrator asked whether arbitrators should fly solo or in flocks.  He made a strong and persuasive case for the independence of the arbitrator, to fly…

BIT, Consent, Damages, Dispute, Investment Arbitration, Uncategorized

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

On February 6, 2013, Achmea (a Dutch insurer, better known by its former name, Eureko) initiated UNCITRAL arbitration proceedings against the Slovak Republic on the basis of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic (the “Netherlands-Slovakia BIT“) [The Agreement on…

BIT, ICSID Convention, International Law, Investment, Investment agreements, Investment Arbitration, Investment protection, Jurisdiction, Treaty Shopping

(International Moot Court Competition Association (IMCCA))/ /1 Comment

Akbar the Great once drew with his royal hand a line in the sand. He then told his wise men that if they wanted to keep their jobs, they must invent a way to make the line shorter without touching any part of it. Wise man after wise man approached the line and stood in…

Evidence, International Courts, Investment Arbitration, North America, Section 1782 Discovery

(Notre Dame Law School)/ /Leave a comment

I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within…

Annulment, Arbitration Institutions and Rules, Arbitration Proceedings, arbitrators’ conduct, ICSID Convention, Investment Arbitration

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

An earlier post examined the general limitations on arbitral discretion. This part will look into the question of actions taken proprio motu and the limits thereto. Functions exercisable proprio motu are perceived as a special case of application of the discretionary powers enjoyed by a tribunal. Actions taken proprio motu must be distinguished from functions…

Foreign Investment Law, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /Leave a comment

In an earlier post, I’d highlighted five notable legal highlights from 2012. Below, and somewhat belatedly, I offer my post-mortem on some key policy developments from 2012. 1. Venezuela and South Africa beat a retreat Venezuela’s exit from ICSID was perhaps the most visible policy story of 2012. The move could bolster the caseload of…

Annulment, Arbitration Institutions and Rules, Arbitration Proceedings, arbitrators’ conduct, Damages, ICSID Convention, Investment Arbitration

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

The problem of arbitral discretion has major implications on the rights of the parties. It is a concept foundational to international arbitration. Yet, it has proven to be so elusive as to escape any definition or treatment in literature. Why is this topic important? In order to answer this question, let us take pre-award interest…

Asia-Pacific, Foreign Investment Law, Investment, Investment Arbitration, Investment protection, Legislation

(Mishcon de Reya)/ /Leave a comment

On 2 November 2012, President Thein Sein approved, after several months of intense debate between Parliament and the Government, Myanmar’s new Foreign Investment Law (‘FIL’ or ‘the Law’).  The new Law revises the framework for foreign investment in Myanmar which had been in place since a military coup in 1988. Considering the country’s abundant natural…

Foreign Investment Law, Investment agreements, Investment Arbitration, Umbrella clause

(Arnold & Porter LLP)/ /Leave a comment

by Patricio Grané and Brian Bombassaro The year 2012 brought eight new investor-state arbitration decisions on umbrella clauses.1)(1) Société Générale de Surveillance S.A. v. Republic of Paraguay, ICSID Case No. ARB/07/29, Award (Feb. 10, 2012), (2) EDF International S.A., SAUR International S.A. and Leon Participaciones Argentinas S.A. v. Argentine Republic, ICSID Case No. ARB/03/23, Award…

CAFTA, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, NAFTA, Trans-Pacific Partnership

(Public Citizen)/ /Leave a comment

As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context. Threats to Public Interest Policy For a growing array of…

ICSID Convention, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection, Trans-Pacific Partnership

(Public Citizen)/ /1 Comment

Trans-Pacific Partnership (TPP) negotiations have become the territory where a brewing perfect storm over investor-state dispute resolution (ISDR) is making landfall. The June 2012 leak of the draft TPP Investment Chapter text added energy, but much more is fueling this tempest. In general the ISDR system is coming under increased scrutiny. Public and policymaker concerns…

Arbitrators, Foreign Investment Law, Investment Arbitration, Third party funding, Treaty

(Corporate Europe Observatory )/ /4 Comments

By Pia Eberhardt, Corporate Europe Observatory, and Cecilia Olivet, Transnational Institute At the end of November, Corporate Europe Observatory and the Transnational Institute published Profiting from Injustice, a report that looks at the role of law firms, arbitrators and third-party funders in investment treaty arbitration. In it, we argued that the arbitration industry has fuelled…