Investment Arbitration

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Investment Arbitration, Legal Practice, Public Policy

(School of International Arbitration, Queen Mary University of London (QMUL))/ /Leave a comment
Institute for Transnational Arbitration (ITA)

One can observe two rather opposing trends. On the one hand there is a steady (and more recently significant) increase in the number of arbitration cases; one the other hand there is a rather systematic criticism expressed by certain voices, predominately in the corporate world.Most well established institutions have recorded a 10% increase in their…

Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

In the latest twist in the ongoing war between foreign investors and the Republic of Argentina, a panel at the International centre for Settlement of Investment Disputes (ICSID) has lifted a stay on a $128 Million arbitral award. US energy company, Sempra, won its arbitration with Argentina in 2007, when arbitrators ruled that measures taken…

Arbitration Awards, Arbitration Proceedings, Investment Arbitration, Jurisdiction

(Debevoise & Plimpton LLP)/ /Leave a comment
American Society of International Law (ASIL)

Article 25 of the ICSID Convention, which draws the outer limits for the exercise of ICSID jurisdiction, does not define the concepts of “nationality” and “investment.” Aaron Broches, the principal author of the Convention, explains that this reflects a deliberate decision by the drafters to leave the choice of what constitutes an investment and who…

Arbitration Proceedings, Investment Arbitration

(University College Cork)/ /Leave a comment

As previously reported, in a decision rendered on 15 April 2009, an ICSID Tribunal declined jurisdiction to hear claims submitted by Phoenix Action Ltd (“Phoenix”) against the Czech Republic. Phoenix, an Israeli company, purchased two Czech companies, Benet Praha and Benet Group, in 2002 while these two companies were involved in ongoing legal disputes. The…

Investment Arbitration, Legal Practice, North America

(Investment Arbitration Reporter)/ /Leave a comment

Following on from Patrick Dumberry’s post, I wanted to offer some information on another pending investor-state dispute where a version of the persistent objector argument has arisen. There is an ongoing discussion in the Grand River Enterprises v. USA NAFTA arbitration, as to whether there is an “emerging” customary international law norm which requires States…

Arbitration Awards, Arbitration Proceedings, International Courts, International Legal Theory and Teaching, Investment Arbitration, Legal Practice, South America, UN and Int’l Organizations

(University of Ottawa Faculty of Law, Civil Law Section)/ /1 Comment

The question of the existence of legal protection for foreign investors under customary international law has always been controversial. States have indeed entered into BITs precisely because of the lack of development of relevant custom rules in the field of international investment law. It is nonetheless largely agreed today that some rules of customary law…

Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

After several months of increasingly angry political rhetoric, and a formal green-light from the country’s Legislature, Ecuadorian President Rafael Correa has made his country the second state to denounce the ICSID Convention in recent years. It’s no secret that ICSID has been singled out for particular opprobrium from some governments in Latin America, and it…

Arbitration Awards, Arbitration Proceedings, Europe, Investment Arbitration, Jurisdiction

(White & Case LLP)/ /Leave a comment
White & Case

In a decision rendered on April 15, 2009, a three-member tribunal composed of Brigitte Stern as chairperson, Andreas Bucher and Juan Fernandez-Armesto rejected Phoenix Action Ltd’s (“Phoenix”) claims against the Czech Republic. By way of background, Phoenix is an Israeli company which purchased two Czech companies, Benet Praha (“BP”) and Benet Group (“BG”), in 2002…

Arbitration Agreements, Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Asia-Pacific, Domestic Courts, Investment Arbitration, Seat of the arbitration

(University of Victoria Faculty of Law)/ /3 Comments

It is well accepted that state responsibility arises under international law for denial of justice. This might occur, for example, where a state court abuses its supervisory function over an international arbitration. In the investment treaty context, a denial of justice by host state courts would normally lead to a fairly straight forward breach of…

Investment Arbitration

(Investment Arbitration Reporter)/ /1 Comment

Over on the always-interesting International Economic Law and Policy Blog, Simon Lester has been musing about the recent controversy over internet-filtering software in China. As has been widely reported in the financial press, computer makers are facing demands to install internet-filtering software (ostensibly to combat the problem of Chinese internet users being exposed to online…

Investment Arbitration, North America, Public Policy

(Crowell & Moring LLP)/ /1 Comment
American Society of International Law (ASIL)

On May 4, 2009, the Obama administration proposed far-reaching measures designed to curb the tax benefits enjoyed by U.S.-based multinational corporations with offshore operations. Based on 2004 figures, those corporations are said to enjoy an effective tax rate of about 2.3% on their foreign revenue. The measures seek to end the practice of U.S. multinationals…

Arbitration Agreements, Europe, Investment Arbitration

(Freshfields Bruckhaus Deringer)/ /Leave a comment
Freshfields Bruckhaus Deringer

Conference: Fifty Years of Bilateral Investment Treaties December 1-3, 2009, Frankfurt Fifty years ago, Germany and the Islamic Republic of Pakistan concluded the first ever bilateral investment treaty. To mark (and celebrate) this important milestone in the development of investment protection, the German Society for the Promotion of Foreign Investments (GFA) and the German Federal…

Arbitration Awards, Arbitration Proceedings, Commercial Arbitration, International Courts, International Legal Theory and Teaching, Investment Arbitration, Legal Practice, Public Policy

(Wayne State University)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

How should tribunals apply investment treaties to measures adopted during times of crisis? Recognizing crisis as the point at which foreign investors become most vulnerable (and therefore require the most protection), should tribunals guard against any temptation to dilute the rigor of external discipline? Conversely, recognizing crisis as the point at which states can lay…

Africa, Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

In recent months, there have been a steady barrage of media reports about so-called “land grabs”. Many believe that we are seeing a new “Scramble for Africa”, as food-scarce countries and private investors alike jostle to lease or purchase vast swathes of agricultural land abroad. There are multiple drivers for such deals: including the perennial…

Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

“A systemic underestimation of the risks associated with bilateral investment treaties”. That’s how Alvaro Galindo put it. Dr. Galindo, is the Ecuadorian lawyer charged with coordinating that country’s defence of a bevy of international arbitration claims. Last week, speaking in his private capacity, he told a conference of the British Institute for International and Comparative…

Arbitration Agreements, Arbitration Awards, Investment Arbitration, Jurisdiction

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

When does a most-favoured-nation (MFN) treatment clause in an investment treaty confer jurisdiction on an investor-state arbitration tribunal? Most readers will be aware that in a series of decisions investment treaty tribunals have given very different responses to this question. On the one hand, a line of decisions suggests that, unless there is a express…

Arbitrators, International Legal Theory and Teaching, Investment Arbitration

(Notre Dame Law School)/ /Leave a comment

We at Kluwer Arbitration blog are most pleased to welcome Andrew Newcombe as our newest contributor. Andrew teaches commercial, international economic and arbitration law at the Faculty of Law, University of Victoria, Canada. His research and writing focuses primarily on investment treaty law and arbitration. In 2004, he established investment treaty arbitration, a resource website…

Europe, European Law, Investment Arbitration, Legislation

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

Germany has introduced an amendment to its Foreign Trade and Payments Act. It is a direct response to increased activities and acquisitions by sovereign wealth funds (SWFs), as they are often perceived to pursue economic as well as political aims. Despite this origin, the legislation does not only apply to SWFs. Instead, it allows the…

Arbitration Institutions and Rules, Arbitration Proceedings, Investment Arbitration, Other Issues

(White & Case LLP)/ /1 Comment
YIAG

Tribunals in investment arbitrations currently impose a fairly consistent set of restrictions to the submissions of amici curiae in proceedings before them, such as short page limits, no access to the arbitral record, etc. The question is whether there are instances where these restrictions need to be tempered.

Arbitration Awards, Investment Arbitration

(Investment Arbitration Reporter)/ /Leave a comment

In a post last month, I offered a few thoughts on the future of moral damages in investment treaty arbitration. One arbitration where I thought we might see an award of moral damages is a case pitting a group of Dutch farmers (Funnekotter, et.al.) against the Government of Zimbabwe. By way of update, I wanted…

Arbitration Institutions and Rules, Arbitration Proceedings, Europe, Investment Arbitration

(Loyola Law School Los Angeles)/ /Leave a comment
American Society of International Law (ASIL)

ICSID arbitration proceedings against Germany (Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG v. Federal Republic of Germany – ICSID On April 17, 2009, the government-owned Swedish energy company Vattenfall initiated Case No. ARB/09/6, reported in IA Reporter, April 2nd, 2009 (Vol. 2, No. 6)). The dispute concerns the construction by…

Investment Arbitration

(Investment Arbitration Reporter)/ /4 Comments

In a post last month, I queried whether not-for-profit organizations could use bilateral investment treaties to challenge abusive treatment by host states. My guess (and that of a colleague with whom I’ve written on this topic) is that such organizations would have little difficulty qualifying as investors under most BITs – and that at least…

Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Investment Arbitration

(Freshfields Bruckhaus Deringer LLP)/ /1 Comment
Freshfields Bruckhaus Deringer

In the early 1990’s, then World Bank Senior Vice President and General Counsel, Ibrahim Shihata, and then ICSID Legal Advisor, Antonio Parra, observed that there “was hardly any case law” on the full protection and security standard. In so doing, Messrs. Shihata and Parra also posited that “[a]rbitrators in future cases will undoubtedly have the…