Investment Arbitration

Arbitration, Arbitration Agreements, Investment Arbitration, Investment law, Investment Treaties, MENA, Middle East, Multilateral Investment Treaties, United Arab Emirates

(Allen & Overy LLP)/ /Leave a comment

The announcement on 13 August 2020 of a rapprochement between Israel and the United Arab Emirates (‘UAE’) took the world by surprise. Seasoned regional observers noted quiet cooperation and cross-border transactions over the past few years, but few expected these covert relationships to burst into public view so fully and wholeheartedly. The joint declaration, soon…

Investment Arbitration, Investment Disputes, Investment law, United States

(Allen & Overy)/ /2 Comments

With the results of the U.S. presidential election announced last week, international lawyers are now looking closely at how the incoming Biden Administration will handle the many challenges facing the global legal order.  President-elect Biden has promised to turn away from the unilateralism that marked the Trump presidency and instead focus on multilateral reengagement.1)See, e.g.,…

European Union, Intra-EU BITs, Intra-EU ISDS, Investment, Investment Arbitration, Investment protection, ISDS, ISDS Reform, Multilateral Investment Court

(Freshfields Bruckhaus Deringer LLP) and , (Freshfields Bruckhaus Deringer)/ /Leave a comment

Much has been written – on this page and elsewhere – about the future viability of investor-state arbitration based on intra-EU BITs in the aftermath of the CJEU’s Achmea decision. In the authors’ view, the May 2020 Termination Agreement concluded between 23 of the 27 EU Member States with the intention to terminate existing intra-EU…

Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, BIT, Enforcement, International arbitration, Investment Arbitration

(De Brauw Blackstone Westbroek) and (Georgetown University Law Center)/ /Leave a comment

On 5 May 2020, 23 Member States of the European Union (“EU”) signed an Agreement for the Termination of all Intra-EU Bilateral Investment Treaties (“Agreement”). Following ratification by the Kingdom of Denmark (6 May 2020) and Hungary (30 July 2020), the Agreement entered into force on 29 August 2020 (Article 16). The Agreement comes in…

Investment Arbitration, ISDS, Space Arbitration, Territory

(The Australian National University)/ /Leave a comment

Ever looked up at the night sky and wondered…what is the regulatory and dispute settlement regime that governs commercial activities out there? Well, it might be about time you did. This post celebrates October’s World Space Week by looking at the developments in the legal framework regulating commercial space activities and how the investor-state dispute…

Australian Arbitration Week, International Commercial Arbitration, Investment Arbitration, Reform, Treaty drafting

and (The Australian National University)/ /1 Comment

On 14 October 2020, Professor Zachary Douglas QC delivered the 19th annual Clayton Utz and University of Sydney International Arbitration Lecture as part of Australian Arbitration Week. This year’s topic was a response to Australia’s Department of Foreign Affairs and Trade’s (DFAT) review of its bilateral investment treaties (BITs). This blog post provides an overview…

Arbitration Awards, Arbitrators, BIT, International arbitration, Interpretation, Investment Arbitration

and (University of Naples "Federico II")/ /Leave a comment

On 15 July 2020, an UNCITRAL Tribunal rendered a Partial Award on Jurisdiction in a dispute between Mr. Lee-Chin ­­and the Dominican Republic (DR) concerning the alleged expropriation of a landfill in Santo Domingo. The arbitrators had to decide whether the arbitration clause – enshrined in Article XIII, Annex III, of the Caribbean Community-Dominican Republic…

Consent, Investment Arbitration, Latin America, Treaty drafting, Treaty Interpretation

(Esguerra Asesores Jurídicos)/ /Leave a comment

A recent partial award on jurisdiction in Michael Lee-Chin v. the Dominican Republic debated the interpretation of dispute resolution clauses and State consent to investment arbitration. While interpreting the Free Trade Agreement between the Caribbean Community and the Dominican Republic (“CARICOM-DR FTA”), the majority concluded that Respondent gave advance consent to submit disputes to one…

Arbitration, Arbitration Proceedings, Arbitrator Bias, Arbitrator Challenges, Arbitrators, Investment Arbitration

(McNair International )/ /1 Comment

In its decision of 11 June 2020, an ICSID Annulment Committee annulled an award in Eiser and Energia Solar Luxembourg v. Spain, ICSID Case No. ARB/13/36. It did so on the grounds that the arbitrator appointed by the investors, Stanimir Alexandrov, and his former law firm, Sidley Austin, had worked so closely and frequently with…

Arbitration, Arbitration Proceedings, International arbitration, Investment Arbitration, investor-State arbitration and mediation, Mediation, Mediation and Dispute Management

(Office of the Ombudsman for United Nations Funds and Programmes )/ /Leave a comment

Of the six States that have ratified the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Convention”) only Singapore seems to have made any requisite preparation for its implementation, by passing the Singapore Convention Mediation Act in February 2020. Yet, following the Convention’s entry into force on 12 September 2020, forthcoming developments in…

AfCFTA, Africa, International Investment Law, International Mediation, Investment Arbitration, Investment law, Investor-State arbitration, investor-State arbitration and mediation, ISDS

(Swiss Chamber of Commercial Mediation)/ /2 Comments

Many see the Pan-African Investment Code (PAIC), a model instrument adopted by the African Union (AU) in 2015, as the first step toward the ‘africanization’ of international investment law. While several national and regional instruments on foreign investments had been adopted by African States and Regional Economic Communities (RECs) prior to the PAIC, the latter’s…

International arbitration, International dispute resolution, International Mediation, Investment Arbitration, Investment Disputes, Investment law, Investment Treaties, investor-State arbitration and mediation, Mediation, Mediation and Dispute Management

(Australian National University)/ /1 Comment

In their reform discussions, States and arbitration institutions have been exploring the potential for investor-State mediation to work alongside arbitration, or even to replace it altogether for some disputes. While investor-State mediation has strengths relative to arbitration, any reform must carefully integrate mediation with existing processes and reform efforts.1)This post builds on: Esmé Shirlow, ‘The…

International Investment Arbitration, International Mediation, Investment Arbitration, Investment Disputes, Investment Treaties, investor-State arbitration and mediation, Mediation, Mediation and Dispute Management

(Australian National University)/ /1 Comment

Arbitration has undoubtedly become the dominant international procedure for settling investor-State disputes. Over the years, we have published various posts on the Blog that have considered intersections and tensions between arbitration and other, alternative, forms of investor-State dispute settlement (‘ISDS’). To mark this month’s entry into force of the Singapore Convention on Mediation, our series…

Enforcement, ICSID, ICSID Arbitration, ICSID Convention, Investment Arbitration, Ukraine

, (Asters)/ /Leave a comment

There have been six Ukrainian proceedings concerning the enforcement of ICSID awards to date. All have been successful, but Ukrainian courts have erroneously applied the New York Convention’s regime for this purpose. In this post, the authors analyze the inconsistency of such an approach with the ICSID Convention regime and related implications, suggesting options to…

Enforcement, Investment Arbitration, Sovereign Immunity, Sweden

(SCC Arbitration Institute) and (MAGNUSSON)/ /Leave a comment
YIAG

The latest decision in the long running investment dispute saga of Stati, Ascom and others v. Kazakhstan came in June 2020, when the Svea Court of Appeal (Svea hovrätt) in Sweden annulled the Swedish Enforcement Agency’s (Kronofogden) (EA) attachment decisions. In this case, the Court of Appeal’s decision effectively expanded the definition of property covered…

International Investment Arbitration, Investment Arbitration, Investment Treaties, ISDS, ISDS Reform, Mediation

(Waseda University), (University of Sydney & Williams Trade Law), and (University of Sydney)/ /Leave a comment

Arbitration has been the default dispute resolution mechanism in the investor-state dispute settlement (ISDS) regime for a long time. Provisions for third-party procedures other than arbitration have been relatively rare in older generation bilateral investment treaties (BITs). Even where those have provided in advance for the option of ICSID (Convention or Additional Facility) Conciliation Rules,…

Brexit, EU-UK dispute settlement, International Commercial Arbitration, International Investment Arbitration, Investment Arbitration, Public international law

(Allen & Overy), (Westerberg & Partners), (Arbitration Chambers), , (Essex Court Chambers), (Fietta LLP), and (Arnold & Porter)/ /Leave a comment

With the unfolding global pandemic, Brexit has largely taken a back seat. Yet, with the transition period due to end (at the time of writing) in just a few months, it is more important than ever to consider the implications for public international law (PIL) of the UK’s departure from the European Union. Exactly four…

Arbitration, ECT Modernisation, Energy Charter Treaty, EU Law, European Union, Investment Arbitration, Reform

(University of Bedfordshire)/ /Leave a comment

The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host…

Arbitration, ECT Modernisation, International arbitration, Investment Arbitration, Reform

(Concepción Global, PLLC, Universidad Complutense de Madrid) and / /1 Comment

In the absence of a uniform standard of compensation under the Energy Charter Treaty (“ECT”), tribunals have been tasked with filling the gap and have done so by exercising an important margin of appreciation for the assessment of damages. Such wide discretion has resulted in divergent approaches in assessing damages. Since the first ECT decision,…

ECT Modernisation, Energy Charter Treaty, Fair and Equitable Treatment, International arbitration, Investment Arbitration

(Durham Law School) and (Magnusson Minds)/ /Leave a comment

The investment protection mechanism in the Energy Charter Treaty (ECT) is meant to, among other things, promote, attract, and protect foreign investments in the member states’ energy sectors. In 2018, the Energy Charter Conference announced its list of approved topics for the modernization of the ECT. The list included several substantive investment protection provisions. This…

Arbitration, ECT Modernisation, Energy Charter Treaty, Investment Arbitration

(Energy Charter Secretariat)/ /Leave a comment

Modernisation of any multilateral treaty is a category of tasks on its own. There are several prerequisites which shall be in place, apart from obsolete language and provisions. The most crucial element is a steady political will of a critical mass of countries based on the strong motivation, which will break inertia and create new…

Arbitration, Arbitration Institutions and Rules, ECT Modernisation, International arbitration, Investment Arbitration, ISDS, ISDS Reform, Reform

(Australian National University) and / /Leave a comment

The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…

Investment agreements, Investment Arbitration, Non-Disputing Parties

, / /Leave a comment

On 27 February 2020, Canada availed itself of the opportunity provided by Article 827(2) Canada-Colombia FTA (“FTA”) to make a non-disputing party submission 1)Accessing the link requires a subscription.(“NDPS”) in Eco Oro Minerals v Colombia. The case concerns issues arising out of a mining restriction imposed to establish an environmental conservation zone. It was initiated…

Arbitration, Arbitration Proceedings, Crimea, International arbitration, Investment Arbitration

(Lindeborg Counsellors at Law)/ /Leave a comment

The Crimea crisis has received attention by UNCLOS and investment tribunals, as well as by the Swiss Federal Tribunal in appeals and annulment proceedings. However, their analyses have been limited to jurisdiction. The implicated issue was whether the (bilateral) investment treaties (BIT) of the occupying, and a fortiori annexing, State could be applied extraterritorially. These…