Investment Arbitration

Anti-arbitration Injunction, Commercial Arbitration, Investment Arbitration, Parallel Proceedings

(Al Tamimi & Company) and (Paxus LLP)/ /Leave a comment

In November 2022, a contract-based arbitral tribunal issued an anti-arbitration injunction with the aim of enjoining parallel investment treaty proceedings between the parties. This post examines this injunction – which was ignored by the investment-treaty tribunal – and its implications.   Background In March 2020, Patel Engineering Limited (“PEL”), an Indian-incorporated infrastructure and construction service…

European Convention on Human Rights, European Court of Human Rights, Human Rights, Investment Arbitration, Investment Disputes, Public Interest

(City University of Hong Kong/ UMBRA Strategic Legal Solutions)/ /Leave a comment

On 30 November 2022, the Hong Kong International Arbitration Centre (along with the British Institute of International and Comparative Law) organised the 2022 Kaplan Lecture. The lecture was delivered by Robert Spano – a former President and Judge of the European Court of Human Rights (ECtHR) – and focussed on the new frontiers faced by…

Diversity, Investment Arbitration, Investment Disputes, Multilateral Investment Court

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A study published in 2012 revealed that only 15 arbitrators decided 55% of the 450 investor-State dispute settlement (ISDS) cases reported at that time, most of them practitioners from Europe, USA or Canada. This was the case despite the fact that parties from all over the world were involved in those proceedings. To date, according…

Corporate Social Responsibility, Environment, ESG, Investment Arbitration, Investment law, Uncategorized

(Leiden University)/ /Leave a comment

Investor-State dispute settlement (ISDS) has been widely criticized for being a tool in the hands of multinational companies, used to challenge domestic public policy measures even when legitimately adopted in the public interest. Critiques have been notable concerning the asymmetrical nature of international investment agreements (IIAs). While IIAs were concluded to afford protection to foreign…

International Law Weekend, Investment Arbitration, Investment Disputes, ISDS Reform, Regime Interaction, Regime Interaction in Investment Arbitration, VCLT

(Dentons US LLP), (Dechert), and (Dentons)/ /Leave a comment

International Law Weekend (“ILW”), held at Fordham Law School in New York City between October 20-22, 2022, celebrated the centennial anniversary of the American Branch of the International Law Association with a program entitled “The Next 100 Years of International Law.”  It brought together a wide variety of engaging panels and events to explore current…

International Investment Law, International Law, International tribunals, Interpretation, Investment agreements, Investment Arbitration, Investment Disputes, VCLT, VCLT Jubilee

, (Permanent Court of Arbitration)/ /Leave a comment

In the last two decades, the Permanent Court of Arbitration’s (PCA) overall docket has seen a rapid growth in mixed arbitrations between States and private parties. Today, over 180 arbitrations are currently pending before PCA tribunals, of which more than 100 are investor-State disputes brought under bilateral and multilateral investment treaties and national investment laws….

COVID-19, Investment Arbitration, Investment law, Investment protection, World Arbitration Update

, (Nyenrode Business University), and (CREDIMI – University of Burgundy)/ /Leave a comment

The current era of emergencies, which includes climate change, environmental challenges, armed conflicts, and health crises, has a profound impact on foreign direct investment (FDI). A panel held on 27 September 2022 as part of the second edition of the World Arbitration Update (WAU) engaged with the effect of such global emergencies on international investment…

Commercial Arbitration, ICCA Edinburgh 2022, Investment Arbitration, sociology of international arbitration

, (International Council for Commercial Arbitration)/ /Leave a comment

The theme of this year’s ICCA Congress was “Arbitration’s Age of Enlightenment?”, a reference to the Scottish Enlightenment, an age in which the old order was challenged, and new ideas led to innovation in several fields. The ICCA Programme Committee’s formulation of the Congress theme as a question rather than a statement is telling: its…

Environment, ESG, HK Arbitration Week, Investment Arbitration

, (K&L Gates)/ /Leave a comment

On the third day of Hong Kong Arbitration Week 2022, HKIAC hosted a panel as part of the ADR in Asia Conference entitled “Beyond Mere Greenwashing? The Impact of ESG on International Arbitration”. This panel brought together a group of specialists who discussed what environmental, social, and governance (“ESG”) is, how it impacts dispute resolution,…

BIT, International arbitration, Investment Arbitration, Uncategorized

(AnchayilKumar) and (JSA, Advocates & Solicitors)/ /2 Comments

India’s Parliamentary Committee on External Affairs (the “PCEA”) recently submitted two reports to the Parliament relating to bilateral investment treaties (“BITs”). The first report –submitted in December 2021 – contained a broad review of India’s engagement with BITs and made several recommendations. The second report – submitted in July 2022 – took note of the…

Investment Arbitration, Jurisdictional challenge, Latin America, Peru, Waiver

, (Bullard Falla Ezcurra +)/ /Leave a comment
Asociación Latinoamericana de Arbitraje (ALARB)

On August 5, 2022, the Tribunal hearing the Bacilio Amorrortu v. The Republic of Peru case issued its Partial Award on Jurisdiction, upholding the State’s objection that Mr. Amorrortu did not provide a valid waiver as required by the “No U-Turn Clause” established in article 10.18.2 of the United States – Peru Trade Promotion Agreement…

Arbitrators, Hong Kong, ICCA, ICCA Edinburgh 2022, Investment Arbitration

(CMS) and (Law Society of Scotland)/ /2 Comments

After a gala evening at the National Museum of Scotland filled with Scottish gastronomy and ceilidh dancing, delegates returned to the conference centre for the last day of the ICCA Congress. Renaissance Arbitrator This panel asked: “what can lawyers and arbitrators learn from disciplines outside the law and arbitration?”. That question is particularly timely as…

IBA, Investment Arbitration, Prague Rules, Transparency, Transparency in investment arbitrations

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International arbitration has been regarded as a flexible and efficient dispute resolution mechanism. While this may hold true for most phases of the arbitration, document production (i.e., the phase where a party requests the other party to produce documents that are in the other party’s possession and are relevant to the dispute and material to…

Costa Rica, Fair and Equitable Treatment, ICSID Arbitration, Investment Arbitration, Latin America

(DJ Arbitraje)/ /Leave a comment

On 29 June 2022, an ICSID Tribunal composed of Alexis Mourre, Luis González García and Adolfo Jiménez issued its Final Award in the case brought by Alejandro Diego Díaz Gaspar, a Spanish national, against Costa Rica. The majority of the Tribunal ultimately found minor breaches of the underlying Costa Rica-Spain Bilateral Investment Treaty (the “Treaty”)…

ECT Modernisation, Environment, ESG, EU Law, Investment Arbitration, Investment Disputes, Investment law, Investor-State arbitration, ISDS Reform

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Negotiations towards a modernized Energy Charter Treaty (ECT, Treaty) ended on 24 June 2022, with the States Parties reaching an agreement in principle following discussions towards reform that began in November 2017. While the final text of the modernized Treaty has not yet been published, the Secretariat of the ECT in June issued a public…

Code of Conduct, Conflicts of interest, Disclosure, double hatting, ICSID, Independence and Impartiality, Institutional Rules, Investment Arbitration

(Chaffetz Lindsey LLP) and (Holland & Knight LLP)/ /Leave a comment

The New York International Arbitration Center’s (“NYIAC”) annual Grand Central Forum took place on 13 July 2022. The event coincided with the 55th session of the United Nations Commission on International Trade Law (“UNCITRAL”) held in New York which, among other topics, focused on the recent fourth draft of the joint ICSID-UNCITRAL Code of Conduct…

Canada, Investment Arbitration, NAFTA, USMCA

(University of Ottawa Faculty of law)/ /Leave a comment

This question of first impression under the United States-Mexico-Canada Agreement (USMCA) has been brought to the fore with the spring 2022 publication of the Request for Arbitration (“Request”) submitted by TC Energy Corporation and TransCanada PipeLines Limited against United States (dated November 22, 2021) and the Notice of Intent (“Notice”) submitted by Alberta Petroleum Marketing…

BIT, Fair and Equitable Treatment, ICSID Arbitration, Intra-EU ISDS, Investment Arbitration, Spain

(University of Montreal) and (Ho Chi Minh City University of Law)/ /Leave a comment

The Spanish Cases Saga illustrates the arduous task of balancing the host state’s right to regulate and an investor’s economic interests. This post summarizes the tribunal’s reasoning in Novenergia v. Spain and Stadtwerke München v. Spain regarding FET breaches in the energy sector. The post argues that the latter case adopts a clearer analysis of…

Investment, Investment Arbitration, Investment Disputes, Investment protection, Russia, Ukraine

, (Binder Grösswang)/ /Leave a comment

Following the Russian military invasion of Ukraine, dozens of states imposed sanctions against Russia. In response, Russia imposed or threatened to impose severe countermeasures on foreign investments associated with such “unfriendly states”. In this regard, several news outlets reported that Russia is in the process of implementing legislation that will interfere with foreign investments in…

Interpretation, Investment Arbitration, Investment law, Investment Treaties

(University of Ottawa)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

States have spent the last decade and a half rebalancing the design of their international investment agreements (IIAs). In their new-generation IIAs, states have clarified core protective standards, omitted controversial clauses, and inserted new carve-outs and general exceptions. These reformed treaties, it was hoped, would provide investment tribunals with “new analytical devices for adjudicating disputes…

Arbitration Institutions and Rules, Code of Conduct, Disclosure, ICSID, Investment Arbitration, UNCITRAL

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Two years since it was published, the draft of the Code of Conduct for Adjudicators in International Investment Disputes is still subject to discussion and refinement by States and other stakeholders participating in the UNCITRAL Working Group III (WG III). This evolving instrument, developed jointly by the ICSID and UNCITRAL Secretariats, is the first attempt…

ICSID, International arbitration, Investment, Investment Arbitration, Jurisdiction

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The debate surrounding the meaning and scope of the term ‘investment’ under the ICSID Convention is a product of the larger tussle between capital exporting and capital importing states, which convened at Washington in the search for a mutually beneficial agreement on foreign investments. It has been argued by Prof. Julian Davis Mortenson that ‘investment’…

ICSID, ICSID Amendments, ICSID Proceedings, International arbitration, Investment Arbitration, Third party funding

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On March 21, 2022, the Member States of the International Centre for Settlement of Investment Disputes (“ICSID”) approved a comprehensive reform of its rules and regulations, including the rules of procedure for ICSID arbitration proceedings (“New ICSID Rules”). Drafted over a five-year consultation process and six working papers, this profound amendment aims to “modernize, simplify,…

ICSID, ICSID Amendments, ICSID Arbitration, International dispute resolution, Investment Arbitration, Investment Disputes, Investment law, Uncategorized

(Consultant, World Bank)/ /1 Comment

On 21 March 2022, the Administrative Council of the International Centre for Settlement of Investment Disputes , or ICSID, approved extensive amendments  of ICSID’s Regulations and Rules. The Regulations and Rules prominently include the rules of procedure for arbitration proceedings initiated under the constituent treaty of ICSID, the 1965 Convention on the Settlement of Investment…