On January 3, 2012 an Ecuador Appeals Court affirmed the $18 billion judgment against Chevron in the long-running battle over environmental damage. (Available in English and the original Spanish here). According to an unofficial English translation of the sixteen page opinion, the Court dismissed all of Chevron’s arguments, including the allegations of fraud. Here is…
Iura novit curia (usually translated as “the court knows the law”) refers to the power and/or obligation of a court to conduct its own legal analysis outside the parties’ pleadings. While there are very few decisions on iura novit curia in the investment treaty arbitration context, a small number of investment treaty arbitral tribunals and…
With the release of the Dissenting Opinion in Abaclat v. Agentina, we now have the benefit of a forceful critique of the majority’s decision that the Abaclat Tribunal has jurisdiction to hear the claims of over 60,000 Italian investors against Argentina under the ICSID Convention and the Argentina-Italy BIT. Professor Georges Abi-Saab’s Dissenting Opinion (the…
Two things are currently unfolding in Africa: significant economic progress and profound political transformation. On the economic front, in the last decade, Africa has been one of the fastest growing continents in the world. Indeed, according to the International Monetary Fund, in the next five years, Africa is expected to be the fastest growing continent,…
At the time the General Assembly of the United Nations was deciding to include in the agenda of its fifty-sixth 1)Resolution A/RES/56/83 – 12 Dec. 2001 GA/9998 session the text of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (The Draft) adopted by the International Law Commission (ILC), the Argentine Republic was…
As Roger Alford mentioned previously, New York University Law School hosted a discussion of the Chevron-Ecuador dispute on October 24th. The event was subject to the Chatham House rules, so my notes below should not be attributed to any particular panelist or audience members. However, in the case of moderator Michael Goldhaber, his views have…
In its 4 August 2011 Decision on Jurisdiction and Admissibility, the majority of the Tribunal in Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic affirmed that it had jurisdiction to hear the claims of over 60,000 Italian investors against Argentina arising out of Argentina’s default on various sovereign…
As we approach the first anniversary of the UK Supreme Court’s landmark decision in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, it is only fitting that we would encounter a case which would cause us to revisit the issue of the proper standard of…
Recent reports of the freezing of Russian government funds at the Stockholm Arbitration Institute may be premature, but it still remains possible that a Swedish bailiff could move to seize such funds. At the time of this writing, a freezing request by German businessman Franz Sedelmayer remained under active review at a Swedish government debt…
In August 2011, the tribunal in Abaclat and others v Argentina decided (by a majority) that it had jurisdiction over claims brought by approximately 60,000 Italian investors, and that the claims were admissible.1)Argentina has in the meantime requested the disqualification of the two arbitrators responsible for the decision and the proceedings are currently suspended. The…
On Monday, October 24, I’ll be participating in a panel discussion at NYU on the The Implications of Chevron v. Ecuador for Investor-State Arbitration. The event will be held at 6 p.m. at Furman Hall 900, 245 Sullivan Street, New York. The event is sponsored by NYU Law School’s Institute for International Law and Justice….
My previous post described years of apparently intractable debate between two opposing camps of international lawyers about what kinds of economic activity should get international investment protections. This post will explain how that dispute was settled for the purpose of ICSID jurisdiction, and with what legal result. As the dispute ground on throughout the final…
My last post described the ongoing controversy about the proper scope of “investment” under Article 25 of the ICSID Convention. The next two posts will draw on my recent article to argue that this controversy should be resolved consistently with the historical understanding of the term. Far from incorporating the limitations exemplified by the Salini…
Article 25 of the ICSID Convention famously limits ICSID jurisdiction to “legal dispute[s] arising directly out of or in relation to an investment.” Uncertainty about the outer limits of this provision erupted into controversy about a decade ago, when Salini Costruttori v. Morocco kicked off a series of cases that imposed sharp limits on the…
In the summer of 2009, an ICSID tribunal ruled that various orders of the Bangladeshi courts that cumulatively denied Saipem (an Italian company) the benefits of an ICC award made in its favour constituted an unlawful expropriation of its investment. It held that the investor was entitled to compensation based upon the value of the…
If you’ve been watching the headlines this month, you may have noticed that the United States of America has launched a novel arbitration against the Republic of Guatemala. The claim alleges that Guatemala is failing to enforce its own labour laws, thus falling afoul of international legal obligations written into the U.S. Free Trade Agreement…
The scope of Most Favoured Nation (MFN) clauses in bilateral investment treaties (BITs) has been a source of rich debate for many years. In sum, the debate centres around whether MFN “treatment” includes only substantive rules for the protection of investments, or if it also extends to procedural protections such as dispute resolution. There have…
Last week I had the pleasure of working with Business Roundtable and a wonderful group of international law scholars–Rudolf Dolzer, Burkhard Hess, Herbert Kronke, Julian Ku, Davis Robinson, Christoph Schreuer, and Janet Walker–on a Second Circuit amicus brief addressing the propriety of antisuit injunctions under international law. The amicus brief addresses an appeal of Judge…
This article provides a brief background on the provision allowing for non-disputing State Party participation under Chapter Ten of the Dominican Republic – Central America – United States Free Trade Agreement (CAFTA-DR), specifically Article 10.20.2, including the relationship between non-disputing State Party submissions and the transparency provisions of CAFTA-DR as well as the implementation of…
The four most recent ICSID disqualification decisions (Universal Compression v. Venezuela, OPIC Karimum v. Venezuela, Tidewater v. Venezuela and Urbaser v. Argentina) have unanimously rejected applications to disqualify arbitrators on ICSID tribunals. This post addresses an issue raised in three of the most recent decisions—disqualification based on repeat appointments by the same party or counsel—and…
In the recent investment treaty case Alps Finance Trade AG v Slovak Republic, an UNCITRAL tribunal had to consider whether Alps had satisfied the obligation contained in Article 9 of the Switzerland-Slovakia BIT which requires that “consultations will take place” and that they “do not result in a solution within six months” before the matter…
As has been chronicled in previous postings, the 2008 decision of an ICSID arbitral tribunal to award $1 Million (US) in “moral damages” to an injured company has been eyed covetously by other investor-claimants in investment treaty disputes. Such sums may be “small change” compared to the more conventional forms of economic compensation claimed for…
This blog post ventures preliminary views on current critiques about ICSID annulments, and sketches out a few ideas that may merit further exploration. Some recent annulment decisions questioned ICSID awards but did not annul them because the high standard for annulment was not met. There are states and investors who now worry that should they…
On 11 March 2011, the UNASUR treaty entered into force. UNASUR (the Union of South American Nations) is a regional organisation that comprises all twelve South American countries: Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela. The entry into force of the treaty is an important development for the international arbitration community given some of the proposals that UNASUR is advancing, particularly in the field of investor-State arbitration.
