In a recent post , Andrew Newcombe queried whether investor misconduct should be dealt with by arbitrators not as a jurisdictional issue, but rather at the merits, damages or costs phase. His post was published as I was wading through 100’s of pages of old international claims commission awards (for reasons too obscure to get…
By Federico Campolieti* and Nicholas Lawn** Introduction In a recent decision related to the ICSID case Perenco Ecuador Limited v. The Republic of Ecuador [1], the Secretary-General of the Permanent Court of Arbitration at The Hague (“PCA”) has upheld a challenge against a leading arbitrator, Judge Charles N. Brower, on the basis that from the…
The treatment of investor misconduct in investment treaty arbitration raises a series of complex issues. Allegations of investor misconduct (such as fraud, illegality and corruption) can arise in the context of the making of an investment, during its operation, or in the investment treaty claim making process. How should a tribunal address investor misconduct if…
Handicapping investor-state arbitration cases is a tough business. Indeed, it’s difficult to predict when decisions will come down – much less what they will say. The following somewhat-hastily-cobbled-together list constitutes my best guess as to the 10 most notable awards which may come down in 2010. I won’t hazard a guess as to what’s in…
As a political slogan, re-Belizeanization was supposed to have a brief shelf life. When the Government of Belize announced last August the “re-Belizeanization” of the tiny Central American country’s dominant telecommunications company, Belize Telemedia Limited, the government disavowed any intention to embark upon a broader programme of economic nationalization. “It is not part of any…
Agency as a mechanism for compelling a non-signatory to join arbitral proceedings By Hanna Roos for YIAG International investors, and those who advise them, continue to be vexed by the question of when a non-signatory, such as a sovereign state, can be compelled to join arbitral proceedings. A typical scenario involves a private investor who…
When mapping the present trajectory of investment treaties, common themes include the “rebalancing” or “recalibration” of substantive disciplines, concepts that signal a retreat from the high-water mark of investor protection and a reorientation towards the preservation of regulatory space for host states. Generally, this phenomenon takes two forms: preparation of new model treaties (the prospective…
Until recently, no arbitral tribunal had found an investor’s claim under a BIT to be barred by a fork-in-the-road clause. Previous tribunals have found that for a fork-in-the-road clause to apply, the same dispute between the same parties must have been submitted to the local courts before resort to international arbitration and have drawn clear…
When I last visited South Africa in 2006, there was much talk of a potential bilateral investment treaty between SA and Zimbabwe. Three years later, as I make another visit to the region, the long-promised deal has just been sewn up. But, despite much clamouring for a protective pact – particularly from South Africans with…
The concept of “moral damage” as long been recognised at international law. Article 31 of the International Law Commission (“I.L.C.”)’s Articles on State Responsibility provides that a State must make full reparation for any “injury” caused to another State by an internationally wrongful act and defines “injury” as “any damage, whether material or moral, caused…
On September 9th, 2009, an intriguing editorial penned by Jeffrey Golden, a special US Counsel and global derivatives senior partner at Allen & Overy LLP, appeared on the Financial Times. It was titled “We Need a World Financial Court with Specialist Judges”. The reason why I bring this article to the attention of the readers…
My colleague Trey Childress has a nice summary of the recent decision by a federal court in Florida in Osorio v. Dole Food Company to refuse to enforce a $97 million Nicaraguan judgment. Here’s the key excerpt of the decision: “the evidence before the Court is that the judgment in this case did not arise…
The Decision on Jurisdiction and Competence (19 June 2009) in Tza Yap Shum v. The Republic of Peru (ICSID Case No. ARB/07/6) is noteworthy as the first publicly available decision involving a claim by a Chinese investor under a Chinese investment treaty. The claim is a tangible reminder of the fact that Chinese investors are…
In one of the most recent NAFTA awards, Glamis Gold v. United States, the United States (“US”) raised objections to the tribunal’s “subject matter jurisdiction” against Glamis’ claims of expropriation under NAFTA Chapter 11. The US argued that the Canadian mining company’s claims based on recently passed California legislation were not “ripe” because the legislative…
International arbitration is an odd world of the elite and pampered celebrities and the quiet and unassuming masses. On the one hand there is the glamorous world of investment arbitration. She may be the new kid on the block, but she gets all the attention from the paparazzi. On the other hand, there is the…
Earlier this year, the ICSID ad hoc committee in the Sempra v. Argentina annulment proceedings decided to continue the stay of the enforcement of the tribunal’s award in that case for the duration of the annulment proceedings on the condition that Argentina pay USD 75 million into an escrow account. After Argentina failed to make…
It is always satisfying for an academic when research interests contribute to teaching. So, as I began teaching first year contracts this year, I read the 8 September 2009 award in Azpetrol International Holdings B.V., Azpetrol Group B.V. and Azpetrol Oil Services Group B.V. v. The Republic of Azerbaijan, ICSID Case No. ARB/06/15 (Azpetrol) with…
For those wondering what the state of the art looks like in the realm of bilateral investment treaty arbitration, you could do worse than browse the Notice of Arbitration filed yesterday in the Chevron v. Ecuador case.
While litigation and arbitration both entail binding adjudication, the traditional functions of judges and arbitrators diverge in fundamental respects. While judges resolve individual disputes, they also serve a number of secondary functions. For example, in the process of deciding cases, they also supply guidance to parties in future disputes, uphold the public interest, and contribute…
In 2006, the ICSID Arbitration Rules were amended to allow a party to make a preliminary objection to claims that are “manifestly without legal merit.” The procedure for this objection is embodied in Rule 41(5). An ICSID Tribunal composed of Dr. Briner (President), Professor Stern and Professor Böckstiegel, in Brandes Investment Partners, LP v. Venezuela…
In modern treaties, a fair and equitable treatment standard (hereinafter “FaETS”) is to be provided to foreign investors and investments by the host state. In the past, the FaETS had been viewed as merely a sub-category of the international minimum standard. However, recent practice and international case law has started taking the view that the…
The recent ICSID arbitration award in Europe Cement Investment & Trade S.A. v. Turkey raise interesting questions of how to regulate fraud in international arbitration. Here is the key holding of the tribunal with respect to fraud regarding an alleged ownership interest in the relevant companies.
For many years, no broad international consensus emerged on the existing protection for foreign investors as a result of differences of approaches between developed and developing States. As a result of this perceived lack of established customary principles, States concluded thousands of bilateral investment treaties in the 1990s for the promotion and the protection of…
One set of international arbitrations which don’t get enough attention are the series of claims mounted under NAFTA Chapter 11 by US investors in the Mexican sweetener industry. A group of agri-business heavyweights, including Cargill, Archer Daniels Midland, Tate & Lyle have all invoked NAFTA’s investment protections in order to challenge a Mexican tax levied…
