Investment Arbitration

BIT, Counterclaims, ICSID, ICSID Amendments, ICSID Arbitration, ICSID Convention, ICSID Proceedings, International arbitration, Investment Arbitration, Investment law, ISDS, ISDS Reform, Third party funding

/ /Leave a comment

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…

Achmea, CJEU, Intra-EU BITs, Intra-EU ISDS, Investment Arbitration, Micula

(Linklaters)/ /Leave a comment

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…

Arbitration Awards, International arbitration, Interpretation, Investment Arbitration, Regime Interaction, Regime Interaction in Investment Arbitration, Treaty Interpretation, VCLT

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

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…

Arbitration Institutions and Rules, Human Rights, International arbitration, Investment Arbitration, Regime Interaction, Regime Interaction in Investment Arbitration

(Columbia Law School) and (Georgetown Law)/ /1 Comment

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,…

Arbitration, BIT, Climate change, Environment, International arbitration, Investment Arbitration, Reform, Regime Interaction, Regime Interaction in Investment Arbitration

(Climate Change Counsel)/ /Leave a comment

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…

Arbitration Institutions and Rules, BIT, Counterclaims, International arbitration, Investment Arbitration, Regime Interaction, Regime Interaction in Investment Arbitration

(Stockholm University) and (Durham Law School)/ /Leave a comment

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…

BIT, International arbitration, Investment Arbitration, Regime Interaction, Regime Interaction in Investment Arbitration, Sustainability

(Durham Law School), , and (The Australian National University)/ /1 Comment

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…

BIT, Economic Sanctions, ICSID Arbitration, Investment, Investment Arbitration, Venezuela

, (Zaiwalla & Co)/ /Leave a comment

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…

Consistency, Exchange rate, Investment Arbitration, Latin America, quantum, Transfer of Funds Clauses

(Baker McKenzie)/ /Leave a comment

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:…

Costs in arbitral proceedings, Ecuador, Investment Arbitration, Latin America, State defense

, (Carmigniani Pérez Abogados)/ /Leave a comment

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…

2021 in Review, Brazil, Colombia, Ecuador, Energy, ICSID Convention, Investment Arbitration, Latin America, Mexico

(Locke Lord LLP)/ /Leave a comment

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…

Corruption, Environment, ESG, International Investment Arbitration, Investment Arbitration, Investment Disputes, Investment law, Investor-State arbitration, Renewable energy, YSIAC Conference

(Oon & Bazul LLP)/ /Leave a comment
YSIAC

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…

Counterclaims, Investment, Investment Arbitration, Investor-State arbitration, ISDS

(Macchi di Cellere Gangemi) and (Stockholm University)/ /Leave a comment

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…

Denial of justice, Due process, Investment Arbitration, Mexico, NAFTA

(CMS)/ /Leave a comment

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…

Cultural heritage, ICSID, Investment Arbitration, Investment Disputes

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

Investor-state disputes often involve an interplay of different bodies of international law.  In addition to investment law, disputes may invoke issues involving public international law, international human rights law, and international environmental law – and tribunals are faced with the challenges of trying to reconcile the sometimes conflicting rights created under these different bodies of…

Colombia, Free Trade Agreements, Investment Arbitration, Latin America, United States

(Zuleta Abogados)/ /Leave a comment

Earlier this year, Colombia prevailed in two arbitrations under the Colombia-US Trade Promotion Agreement (“TPA”). The claims were filed by Alberto Carrizosa Gelzis, Felipe Carrizosa Gelzis and Enrique Carrizosa Gelzis (“Carrizosa brothers”) under the UNCITRAL Arbitration Rules, and by Astrida Benita Carrizosa (“Ms. Carrizosa”) under the ICSID Convention. In both arbitrations Ms. Carrizosa and the…

Achmea, Arbitration Proceedings, Climate change, Energy Charter Treaty, International arbitration, Investment Arbitration, ISDS, Netherlands, Paris Agreement

(Smallegange, Dutch Arbitration Association)/ /Leave a comment

Western European countries have taken divergent approaches to dealing with the consequences of shutting down power plants while transitioning towards cleaner energy sources. On one side, Germany resolved the resulting compensation disputes by making settlement payments to the owners of affected nuclear and coal power plants. In contrast, the Netherlands appears reluctant to similarly compensate…

India, Investment Arbitration

/ /Leave a comment

In May 2021, India’s National Company Law Tribunal (‘NCLT’) ordered the liquidation of Devas Multimedia (‘Devas’), on grounds of it having been incorporated for fraudulent purposes. This is the latest turn in a long running dispute contested across multiple fora. In this post, I highlight that this could give rise to a third BIT claim…

Investment Arbitration, ISDS, Japan, Trans-Pacific Partnership, Treaty

, (Nagashima Ohno & Tsunematsu Singapore LLP)/ /1 Comment

On 2 June 2021, the British government announced that the existing 11 signatories (the “Parties”) to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) have agreed to the United Kingdom’s bid to begin the accession process.1)The signatories consist of Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. International Trade…

Investment Arbitration, Investment Disputes, VIAC

(ESSEC Business School, Paris; Paragon Advocacy)/ /Leave a comment

The Vienna International Arbitral Centre (VIAC) has further strengthened its arbitration offering by adopting brand new, stand-alone investment arbitration and mediation rules, the VIAC Rules of Investment Arbitration and Mediation (VRI), which entered into force on 1 July 2021. The VRI apply to disputes involving a State, a State-controlled entity or an intergovernmental organization that…

Achmea, Admissibility, Arbitration, Arbitration Proceedings, CJEU, Domestic Courts, Energy Charter Treaty, German law, Germany, ICSID, International arbitration, Investment Arbitration, Netherlands, UNCITRAL

, (Nishimura & Asahi)/ /1 Comment

The Achmea saga has taken yet another twist. In a recent communication to the Dutch Parliament, the Dutch Ministry of Economic Affairs and Climate disclosed that it initiated “anti-arbitration” proceedings before the German courts on 11 May 2021 to “avert” two ECT-based ICSID arbitrations brought against it by the German energy companies RWE and Uniper (“Communication”)….

Arbitration Institutions and Rules, BIT, Climate change, Energy Charter Treaty, Environment, Human Rights, International arbitration, Investment Arbitration, ISDS, PCA, Permanent Court of Arbitration, Space Arbitration

/ /Leave a comment

International arbitration is changing at a fast pace, and opportunities arise every day in this field. In this context, on May 25, 2021, Young Arbitral Women Practitioners, Holland & Knight, and Rising Arbitrators Initiative co-hosted a webinar to discuss emerging fields of practice for arbitration lawyers. This post offers an overview of the variety of…

Colombia, Counterclaims, Investment Arbitration, Latin America, Police Powers, Treaty Interpretation

(Esguerra Asesores Jurídicos)/ /Leave a comment

On 12 March 2021, a tribunal issued an award in the case of Naturgy v. Colombia (ICSID Case No. UNCT/18/1) under the Colombia-Spain BIT (2005) (the “BIT”). The decision is the first in a wave of four decisions decided in the first half of 2021 in favor of Colombia. Naturgy is noteworthy for its engagement…

Appellate Court, Counterclaims, Exhaustion of Local Remedies, Frivolous Claims, Investment Arbitration, Reform, Third party funding, UNCITRAL

(Columbia Law School), (Georgetown Law), and (School of Law, Christ University)/ /2 Comments

Calls for investor-State dispute settlement (“ISDS”) reform have persisted for some time (see blog coverage here). Competing calls for retaining the status quo, modifying the system, or abandoning the system altogether have each gained traction. With a drastic increase in the number of investment cases being brought, accompanied by the “mega” awards, the international community…