Investment Arbitration

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

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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

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“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…

Arbitration Awards, Investment Arbitration

(Investment Arbitration Reporter)/ /1 Comment

One of the more intriguing investment arbitration decisions rendered in 2008 has to be the final award in Desert Line Properties (DLP) v. Yemen. In their February 2008 award, a tribunal of three arbitrators held that Yemen denied fair and equitable treatment to an Omani construction company. The claimant turned to ICSID after Yemeni authorities…

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Commercial Arbitration, Investment Arbitration

(Three Crowns LLP)/ /2 Comments
Three Crowns LLP

What could be more basic? Arbitrations begin with each side naming an arbitrator. References are occasionally made to “the fundamental right” to name one’s arbitrator. But there is no such right. Moreover, if it existed, it would certainly not be fundamental. The original concept that legitimates arbitration is that of an arbitrator in whom both…

Arbitrators, Commercial Arbitration, Investment Arbitration, National Arbitration Laws, North America

(Suffolk University Law School)/ /3 Comments
American Society of International Law (ASIL)

American Bar Association’s International Law Section Criticizes the ABA Dispute Resolution Section’s Subcommittee Draft on Arbitrator Disclosure Guidelines It has been interesting to watch the strong reaction to the draft disclosure guidelines and checklist for arbitrators proposed by the Disclosure Subcommittee of the Arbitration Committee of the ABA’s Dispute Resolution Section. Over the last two…

Investment Arbitration

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In recent weeks, there has been widespread condemnation of the Sudanese government’s decision to expel 13 international aid agencies operating in Darfur. The expulsions came, of course, as retaliation for the international arrest warrant issued against Sudanese President Omar Al-Baashir. Most members of the UN Security Council have denounced the expulsions and warned that they…

Europe, Investment Arbitration

(Investment Arbitration Reporter)/ /1 Comment

This week, many are talking about the long-awaited European Court of Justice judgments which have held Sweden and Austria in breach of their European Community Law obligations. (A third case against Finland has been delayed slightly, but will likely be resolved in the same way by the ECJ). According to the ECJ, Austria and Sweden…

Arbitration Awards, Arbitration Proceedings, International Courts, Investment Arbitration

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

On August 14, 2008, while the armed conflict over Abkhazia and South Ossetia between Georgia and Russia was raging, Georgia filed a request for the indication of provisional measures with the International Court of Justice (ICJ) in The Hague in order to preserve its rights under the International Convention on the Elimination of All Forms…

Arbitration Awards, Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, Enforcement, Investment Arbitration, South America

(International Council for Commercial Arbitration)/ /2 Comments
Freshfields Bruckhaus Deringer

In light of interest in the international arbitration community concerning investment treaty cases against Argentina since the 2001 economic crisis, we thought it could be useful to share Freshfields’ working collation. We caution that this is based only on public records and press reports. Corrections are welcome. According to our data, 46 treaty cases have…