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’…

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,…

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…

FET is often described as the core standard of international investment law.  Recently, there has been renewed discussion on its intended meaning, by reference to a range of source materials that arguably reflect States’ intentions at the time of concluding investment treaties.  On December 10, 2021, the Dispute Resolution Interest Group of the American Society…

It is trite to suggest that the awards rendered under the aegis of the International Centre for Settlement of Investment Disputes (“ICSID”) are insulated from national court review. In the context of recognition and enforcement, national courts are not permitted to examine ICSID arbitral awards. In 2006, 50 years after the ICSID Convention came into force, commentators…

For the last 20 years Latin America has been a fertile ground for ISDS. From the cases against Argentina in the early 2000s, to those against Venezuela, Ecuador, Mexico and Bolivia in subsequent years, and more recently Peru and Colombia, investment treaty disputes in the region have continued to arise. While the seeds of the…

The recent Award in AFC v. Colombia dated 24 February 2022 provides new developments on the scope of Rule 41(5) of the Arbitration Rules of the International Centre for the Settlement of Investment Disputes (the “ICSID Rules”). The Tribunal dismissed the claims of AFC Investment Solutions S.L. (the “Claimant”) after accepting a defense raised by…

State parties’ “mutual actions” over a treaty – including interventions such as interpretation, modification and termination – have flourished in recent investment treaty practice. This trend brings to the fore the question of whether there are any limits to such actions, particularly due to the involvement of non-State entities, such as investors and arbitral tribunals….

The year 2021 has been the busiest year for Ukraine since 2008, with four investment arbitrations initiated against Ukraine. The odds were not always in Ukraine’s favour. Having secured the dismissal of the case for lack of jurisdiction in Littop and others v. Ukraine, Ukraine was defeated by the investor in Olympic Entertainment v. Ukraine….

In early 2021, we wrote a post on this blog welcoming the inclusion of specific provisions on third-party funding (TPF) in the 2021 ICC Arbitration Rules. Recent regulatory developments in TPF in investor-State dispute settlement (ISDS), including publication of the VIAC Rules of Investment Arbitration and Mediation (VIAC Investment Arbitration Rules), have enticed us to…

On January 20, 2022, ICSID submitted its amended rules to the Administrative Council for a vote, marking the end of the five-year-old process of modernizing the ICSID Rules. ICSID members are expected to cast a vote on the amended rules by March 21, 2022, and if approved, the rules will enter into force on July…

In its judgment rendered today, the Court of Justice has quashed the General Court’s decision having ruled that the European Commission was not competent ratione temporis to assess whether the compensation paid by Romania to the Micula brothers, in implementation of a 2013 ICSID award rendered under the 2002 Sweden-Romania BIT, was constitutive of state…

In 2011, in an article titled ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’, Professor Stephan Schill reflected on the prior decade of scholarly and practical developments in international investment law (IIL). He referred to the boom in specialised scholarship and the more than 400 investor-State disputes then in existence as reasons…

Globalization has diversified the actors, institutions, norms, and instruments on the international legal stage. With diversification comes increased specialization and, in turn, organization around so-called regimes. The notion that international legal regimes can exist autonomously has long been refuted; indeed, each regime draws from general international law to some degree. If regimes are not autonomous,…

Nearly 30 years have passed since world leaders signed the UN Framework Convention on Climate Change (“UNFCCC”), agreeing to combat “dangerous human interference with the climate system.” For many of those years, nobody seemed to take that commitment very seriously. But things look different now: climate law has hit its stride. At COP26 in November…

This post deals with the conceptual underpinnings and theoretical justification for the practice of counterclaims in investment arbitration. First, it is important to delineate this post from an analysis of counterclaims case-law in investment arbitration, as ample accounts of the counterclaim debate in practice can be found here, here, and here.  Equally, this post does…

Debates about the fragmentation of international law and the sometimes conflicting relationship between a state’s and investor’s obligations under international investment law (“IIL”), on the one hand, and public international law and domestic law, on the other, have gained renewed relevance for investment arbitration. Issues related to the interactions between these regimes have featured in…

Bilateral investment treaties depend upon international arbitration as the mechanism to resolve disputes between sovereign states and investors. Although offering obvious advantages over litigation before national courts, investors are not immune from the risk of proceedings becoming destabilized by external factors. A recent example involved Air Canada, the country’s flag carrier, and the Bolivarian Republic…

Inconsistent decisions have long been a major criticism in investment arbitration. This does not only pertain to decisions on procedure, jurisdiction or merits but also to quantum issues. This contribution will center around one unlikely connection that has the potential to enhance consistency and predictability in an area of quantification of damages in investment arbitration:…

On November 23, 2021, Ecuador’s Attorney General (“AG”), Iñigo Salvador Crespo announced the creation of a new institutional framework for handling disputes brought against the state and state entities with the vision of preventing and reducing litigation, particularly costly international arbitrations. The Institutional Strengthening of the Attorney General’s Office Project (“PROFIP” for its initials in…

In 2021, we witnessed a number of interesting developments in the field of investment arbitration in Latin America. From Mexico’s actions potentially triggering numerous treaty claims, to Colombia’s four consecutive victories, to Ecuador’s return to the International Centre for Settlement of Investment Disputes (ICSID) Convention. Our authors did a tremendous job covering and sharing their…

Earlier this week, the YSIAC Conference 2021 took place virtually for the first time since its inception. The opening webinar was a panel discussion titled “Resolving ESG Disputes Through International Arbitration”, which agenda was to analyse the disputes in the buzzing environmental, social and governance (“ESG”) domain, distil the trends and lessons learnt therefrom, and…

The discussion within UNCITRAL Working Group III (WG III) on counterclaims has still remained, to a certain extent, deadlocked, as opposed to discussions on other topics under the table. As a result, the UNCITRAL Secretariat has been put (at least) until now in the unfortunate position of being unable to bring a coherent package of…

Lion Mexico Consolidated v. Mexico1)Lion Mexico Consolidated L.P. v. United Mexican States (ICSID Case No. ARB(AF)/15/2). represents the first positive finding of denial of justice in the history of NAFTA2)In 1999, a NAFTA tribunal analysed and rejected for the first time a claim for denial of justice in Robert Azinian v. Mexico. and one of…