Investment Arbitration

Investment Arbitration, Investment protection, NAFTA, Trade

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Mandatory research and development investment requirements (hereinafter ‘R&D Requirements’) may be prohibited under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’). A decision in Mobil Investments Canada Inc. and Murphy Oil Corporation v. Government of Canada (‘Mobil v. Canada’) is highly anticipated after a U.S. website leaked the fact that Canada had lost…

European Law, Investment Arbitration, Jurisdiction, Jurisdiction of the arbitral tribunal

(Linklaters)/ /1 Comment

Investment arbitration under intra-EU investment treaties has been a controversial topic for years. The European Commission has repeatedly expressed the view that arbitration clauses in bilateral investment treaties between EU Member States are in conflict with EU law and therefore inoperative, while arbitral tribunals have, on several occasions, assumed jurisdiction on the basis of such…

BIT, Investment Arbitration, Third party funding

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The saga with Yukos Oil and its nationalization – and the effects on its various related entities – has been ongoing for quite some time. As reported in the news of late (see e.g. Business Wire.com and Cisarbitration.com), in late July an arbitral award was rendered under the auspices of the Stockholm Chamber of Commerce….

ICSID Convention, International arbitration, Investment agreements, Investment Arbitration, Investment protection, Latin America

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In a recent blog post, Gary Born highlighted the current role of the Permanent Court of Arbitration in administering state-to-state arbitrations. Given that the PCA has recently released its Annual Report for 2011, I thought I’d complement Gary’s post with some further information about the PCA’s role in administering investor-to-state arbitrations. It’s useful to set…

BIT, Costs, Europe, European Law, Investment agreements, Investment Arbitration

(Linklaters)/ /1 Comment

With the entry into force of the Lisbon Treaty on 1 December 2009, control of foreign direct investment became an exclusive area of EU competence, or such is the view of the European Commission, a view which is not shared by all EU member States. Since that time, the Commission has embarked upon what it…

ICC Arbitration, International arbitration, Investment Arbitration

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On September 10, 2012, The International Chamber of Commerce (“ICC”) in New York will be hosting the seventh annual conference. Located in New York City, the ICC Conference will be looking at investor-state arbitration, specifically under the rules of the ICC. The ICC has been working hard to build up its profile in the international…

ICSID Convention, International Law, Investment Arbitration

(Essex Court Chambers)/ /2 Comments
Institute for Transnational Arbitration (ITA)

By Martin Hunter and Javier García Olmedo In a previous blog we discussed the concept of plain packaging of tobacco products and the pending investment arbitration claims brought by Philip Morris International (PMI) against Uruguay and Australia. The question raised was whether these anti-tobacco schemes contravene the Agreement on Trade-Related Aspects of Intellectual Property Rights…

ASEAN, Asia-Pacific, Canada, Investment Arbitration, NAFTA, Trade

(University of Arizona James E. Rogers College of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The Obama Administration’s only current regional trade negotiations, the Trans-Pacific Partnership (TPP), continue slowly toward a possible conclusion in 2013, with 12 rounds of negotiations having been completed as of the end of May 2012. A major element of a re-energized American focus on political, security and economic considerations in Asia, the TPP if it…

ASEAN, BIT, Investment agreements, Investment Arbitration, NAFTA, Vienna Convention on the Law of Treaties

(University of Notre Dame)/ /3 Comments
Institute for Transnational Arbitration (ITA)

Investment treaty provisions that allow joint decisions by States Parties to override or control arbitral tribunals’ interpretations of investment treaty standards scarcely appear in international investment agreements. The recently released 2012 United States Model BIT is a rare example. The 2012 version carried over Article 30(3) of the 2004 United States Model BIT, enabling States…

BIT, Investment Arbitration, Investment protection

(Arnold & Porter LLP)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

After a review process that lasted three years, expectations ran high for the revised model U.S. bilateral investment treaty (“BIT”), which was released last month. Stakeholders from many parts of society — the U.S. Congress, environmental organizations, labor groups, business groups, trade associations, academia, the public, and investment experts — weighed in during the review…

Canada, Investment Arbitration

(Notre Dame Law School)/ /1 Comment

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron’s far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties…

Africa, BIT, ICSID Convention, Investment Arbitration

(Mishcon de Reya)/ /1 Comment

On 18 April 2012, South Sudan signed and ratified the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ‘ICSID Convention’). In accordance with Article 68(2) thereof, the Convention entered into force for Sudan thirty days later, i.e. on 18 May 2012. The membership of Africa’s newest republic…

Arbitration Act, Arbitration Agreements, Arbitration clause, BIT, Confidentiality, Dispute resolution clause, Investment Arbitration

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Herbert Smith Freehills

In a judgment dated 25 April 2012 (Lombard North Central plc and another v GATX Corporation [2012] EWHC 1067 (Comm)), Judge Andrew Smith of the English High Court (Commercial Court) underlined the potential risks that might arise from arbitration clauses which have a limited scope. Although this judgment is relevant to a number of different…

Arbitration, Investment Arbitration, Latin America

(Von Wobeser y Sierra, S.C.)/ /4 Comments

For almost 20 years, Mexico has been at the forefront of Latin-American arbitration practice. It has been widely recognized both in terms of the quality and sophistication of its practitioners, its modern legal framework (since 1993 based on the UNCITRAL Model Law on International Commercial Arbitration) and for its arbitration friendly judiciary. According to statistics…

Investment agreements, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /2 Comments

This week, Spanish energy firm Repsol put Argentina on notice of an arbitration claim under the Spain-Argentina bilateral investment treaty. The development comes as no surprise, as Repsol had been threatening for some weeks to take such a course if Argentina persisted in nationalizing the bulk of Repsol’s 57% stake in the Argentine firm YPF….

Arbitration Proceedings, Commercial Arbitration, Investment Arbitration, Section 1782 Discovery

(Notre Dame Law School)/ /2 Comments

When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the U.S. statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to…

BIT, Commercial Arbitration, International Law, Investment agreements, Investment Arbitration, Investment protection

(University of Portsmouth)/ /10 Comments
Institute for Transnational Arbitration (ITA)

The concept of good faith has been a subject of perennial controversy since it was derived from the Roman legal equivalent ‘bonas fides’. Juristic views on and the legal conceptualization of the idea of good faith may often vary across the cultural divides and legal traditions. At a higher level of abstraction there may be…

Arbitration Awards, Domestic Courts, Enforcement, Investment Arbitration

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White Industries Australia Limited v. Republic of India (White v. India) is the latest in a growing line of cases where international investors have successfully resorted to investment treaty arbitration to recover sums owed under international commercial arbitral awards where there have been extensive delays enforcing those awards in domestic courts. However, the potential scope…

International arbitration, Investment Arbitration

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

The Annual Meeting of the American Society of International Law is next week (March 28 – 31) at the Fairmont Hotel in Washington, DC. (register here.) I have the honor to co-chair the meeting with Cymie Payne and Harlan Cohen and, together with a wonderful Program Committee, we put together a great program centered around…

Arbitration, Arbitration Institutions and Rules, BIT, Class arbitration, International arbitration, Investment agreements, Investment Arbitration, Investment protection

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

International arbitration has long played an important role in resolving disputes that arise out of political and economic crises.   “Arbitration in Times of Crisis” is the theme of the 9th Annual ITA-ASIL Conference on 28 March 2012 in Washington, D.C. (see program).   The conference will focus on lessons from the past use of arbitral mechanisms…

Domestic Courts, International arbitration, Investment Arbitration

(Legaleidescope)/ /1 Comment

It appears that the Supreme Court of Pakistan is gradually paying attention to developments in International Arbitration and to the negative remarks the Court received in the past for its hostility towards international arbitration proceedings. Without any stretch, the Supreme Court of Pakistan is widely quoted around the world as the case in point for…

Anti-suit injunction, BIT, Investment Arbitration, North America

(Notre Dame Law School)/ /3 Comments

Last week was a blockbuster one in the ongoing battle between Chevron and Ecuador. On Wednesday, the arbitral tribunal adjudicating Chevron’s BIT claim issued an Interim Award ordering Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against…

BIT, ICSID Convention, International Law, Investment Arbitration

(Essex Court Chambers)/ /4 Comments
Institute for Transnational Arbitration (ITA)

In February 2010, Philip Morris International (PMI) filed a request for arbitration under the ICSID Convention against the Republic of Uruguay. 1)Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay (ICSID Case No. ARB/10/7). Pending (the Respondent filed a memorial on jurisdiction on September…

Annulment, Anti-arbitration, Appeal, Arbitration, Arbitration Agreements, Arbitration clause, Arbitration Proceedings, BIT, Foreign Investment Law, ICSID Convention, International arbitration, Investment Arbitration, Jurisdiction of the arbitral tribunal, kompetenz-kompetenz, New York Convention, Pre-arbitration Dispute Settlement Procedures, Principle of finality, Set aside an international arbitral award

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It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States….