On March 15, 2011 the Advocate General (“AG”) issued its opinion on an interesting matter which considers the relationship between EU law, a contract preceding the Republic of Slovakia’s accession into the EU and the Energy Charter Treaty and Investment Arbitration Agreement (essentially, a bilateral investment treaty applicable here). The dispute involves a contract dated…
The OECD-hosted Freedom of Investment (FOI) Roundtable is in the process of finalizing a statement regarding the role of international investment in supporting the realization of countries’ green growth objectives. The draft statement entitled “Harnessing Freedom of Investment for Green Growth” (Draft Statement) and three draft background consultation papers (Draft Papers) are available on the…
As I discussed yesterday, an Ecuador Court has issued an $8.6 billion judgment against Chevron. I just got off a press conference call with plaintiff’s chief lawyer in Ecuador, Pablo Fajardo. He stated that the plaintiffs will seek enforcement of the Lago Agrio judgment throughout the world as soon as the Ecuador appeals process is…
Today an Ecuador court fined Chevron $8.6 billion for environmental damage. According to the Wall Street Journal, $5.4 billion of that is to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat individuals injured by the pollution, $600 million to restore polluted waters, $200 million to restore…
On December 1, 2010, an ICSID tribunal composed of Sir Franklin Berman (President), Prof. Emmanuel Gaillard, and J. Christopher Thomas, QC, in Global Trading Resource Corp. and Globex International, Inc. v. Ukraine [Disclosure: White & Case LLP was counsel to Ukraine in this case], became the first tribunal ever to dismiss a case under the…
Two ICSID tribunals have now weighed in on the much-debated question of whether Art. 22 of Venezuela’s Foreign Investment Law provides Venezuela’s consent to ICSID arbitration. In Decisions on Jurisdiction dated June and December 2010, the Mobil and Cemex tribunals (both presided by the former president of the ICJ, Judge Gilbert Guillaume), rejected investors’ submissions…
Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010. If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all…
In July this year, the European Commission published its communication “Towards a comprehensive European international investment policy” (COM(2010) 343 final) and a draft Regulation “establishing transitional arrangements for bilateral investment agreements between Member States and third countries” (2010/0197 (COD)). This initiative is based on the still controversial change brought about by the Lisbon Treaty, by…
In the past twenty years the world of investment arbitration has taken the commercial world by storm. There are over 2,750 bilateral investment treaties and almost every one of them has an arbitration provision. Investment arbitration is now a prominent feature of the arbitration landscape. Just as BITs have proliferated in recent years, so too…
Several months ago, I drew attention on this blog to Uruguayan press reports which hinted that Uruguay might be prepared to compromise in the face of an arbitral claim filed by Phillip Morris International. (For background on the claim, see this Investment Arbitration Reporter account.) Following the flurry of Uruguayan press coverage, I spent a…
In his April 2010 inaugural lecture as holder of the Michael R. Klein’s Chair at the Miami University, Jan Paulsson advocated a fundamental change in the culture and practice of international commercial arbitration (Moral Hazard in International Arbitration, Miami, 29 April 2010, see also on this blog). In a nutshell, his views can be summarized…
The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on…
Three different investors, with three different claims, in three different situations, have recently been in the news. All three disputes have a Canadian connection. Two involved claims by foreign investors against Canada, one that settled and one that Canada defeated. The third involves a claim by a Canadian investor against the Democratic Republic of Congo….
In a recent post, Lisa Bench Nieuwveld raised an issue which has been discussed from time to time on this blog: the potential for not-for-profit activities to be protected under international investment treaties. There is no doubt that not-for-profit organizations face a barrage of abuse and mistreatment at the hands of host countries, and that…
On 31 August 2010, a group of over 35 academics (not including the current author), published a Public Statement on the International Investment Regime (Statement). The preamble to the three-page Statement outlines why the Statement has been issued: We have a shared concern for the harm done to the public welfare by the international investment…
It is rather interesting to read in the news about how some governments have chosen to “fund” their own government. One government went so far as to simply clear out the checking accounts of small businesses and not-for-profit organizations (“NGOs”). Another government, not necessarily seeking funding but presumably disagreeing with the purpose and/or presence of…
Following the controversial land reform programme first introduced by President Robert Mugabe in July 2000, Zimbabwe has found itself in hot water of late, with a number of international disputes being brought by dispossessed farmers against the State. The first of these disputes was mounted at ICSID in 2005 by a group of 13 Dutch…
The 14 July 2010 Award in Saba Fakes v. Turkey (Fakes) is notable because it expressly disapproves of the approach taken by the Tribunal in Phoenix Action v. Czech Republic, which found in its 15 April 2009 Award that good faith and legality are jurisdictional requirements for access to ICSID arbitration. Fakes is a welcome addition to…
A string of mainstream media reports are suggesting that Uruguay is looking to compromise with Philip Morris International in relation to a sensitive international arbitration. On Tuesday, The UK-based Guardian newspaper reported that Uruguay has promised to water down anti-smoking laws after pressure from the tobacco giant Philip Morris, prompting accusations of corporate bullying. More…
27 June 2010 marks the 20th anniversary of investment treaty jurisprudence. On 27 June 1990, the tribunal in Asian Agricultural Products Ltd. v. Sri Lanka (ICSID Case No. ARB/87/3) (AAPL) dispatched its final award to the parties. The AAPL tribunal (Dr. Ahmed Sadek El-Kosheri (President), Professor Berthold Goldman and Dr. Samuel Asante) was the first…
I spent some time in Namibia and South Africa last December looking into the impact of bilateral investment treaties on land reform. I don’t do a lot of field trips, and my wife harboured some suspicion that this “research venture” was merely a tidy excuse to trade the New York winter for the Southern African…
The preliminary hearings in the Pacific Rim v. El Salvador CAFTA arbitration went off without a hitch at the start of this week. I’d like to report that I hung on every word via the live webcast that had been arranged by the International Centre for Settlement of Investment Disputes. However, I spent my Monday…
UNCTAD’s most recent note on investment treaty arbitration (Latest Developments in Investor-State Dispute Settlement, IIA Issues Note No. 1 (2010)) provides a useful overview of the growth in investment treaty arbitration and the major jurisprudential developments in 2009. According to UNCTAD, the total number of known investor-state cases under investment treaties stood at 357 at…
At the recent Northwestern Law School conference on the Israeli-Arab Dispute and International Law I had the good fortune to address one of the few bright spots in current Arab-Israeli relations. Most international law scholars of the Arab-Israeli conflict seem to know little about international trade, and focus almost exclusively on the laws of war…
