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.
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…
