Investment Arbitration

Arbitration Awards, Due Diligence, Fair and Equitable Treatment, Investment Arbitration, Investment law, Investment protection, Investment Treaties

(Nyenrode Business University)/ /2 Comments

In interpreting one of the most contested investment treaty protection standards – fair and equitable treatment – arbitral tribunals have increasingly referred to the necessity for an investor to conduct a due diligence investigation before investing in a host state. Foreign investors have been required to assess not only commercial, but also general socio-political risks….

COVID-19, Investment, Investment Arbitration, Investor-State arbitration

(Egyptian Ministry of Justice)/ /Leave a comment

COVID-19: Background and Impact on Foreign Investment in the Developing Countries As discussed on the Blog previously, the number of confirmed cases of COVID-19, the disease caused by the virus named SARS-CoV-2, continues to rise globally, as shown on this page from the WHO. Today, the virus has already spread in Western Europe and the…

Expropriation, Investment Arbitration, Investor-State arbitration, Minimum Standard of Treatment, Most Favoured Nation (MFN), National Treatment, Non-Disputing NAFTA Parties, Non-Disputing Parties, United States

(US Department of State)/ /Leave a comment

In 2019, the United States (‘U.S.’) made six non-disputing Party submissions in investment treaty arbitrations, three of which took place under the NAFTA (Lion Mexico Consol. L.P. v. Mexico; Vento Motorcycles, Inc. v. Mexico; and Tennant Energy, LLC v. Canada), and one each of which took place under U.S. agreements with Korea, Peru and Panama (Jin Hae…

COVID-19, Investment Arbitration, Investment protection, Investor-State arbitration

(Georgetown Law)/ /Leave a comment

Extraordinary Times  These are extraordinary times in many regards. The spread of novel coronavirus (“COVID-19”), now considered a pandemic, continues to have a significant global impact on several fronts. For States, the pandemic of course presents significant public health challenges. As we are seeing, it also presents significant economic challenges, due to the convergence of…

Achmea, European Convention on Human Rights, European Court of Human Rights, ICSID, Intra-EU BITs, Intra-EU Investment Arbitration, Investment Arbitration

(delegaltessen) and (Stampa Abogados)/ /Leave a comment

The aftermath of Achmea Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, defending EU Member States and the European Commission have questioned the validity of the application of the investment arbitration clause in the Energy Charter Treaty (ECT) to intra-EU disputes. Although the motions to challenge jurisdiction on…

Investment Arbitration, Investment law, Peru

(CML Arbitration)/ /1 Comment

On February 4, 2020, ICSID registered a request for arbitration submitted by the company Odebrecth Latinvest Sarl, a Luxembourg-based subsidiary of the Brazilian company Odebrecht SA, against the Republic of Peru (ICSID Case No. ARB/20/04). This post analyzes the background to this dispute, as well as the possible strategies that the parties could use during…

Arbitration, Arbitration Institutions and Rules, BIT, Counterclaims, Enforcement, Investment Arbitration, Reform, UNCITRAL WG III Series

(Macchi di Cellere Gangemi)/ /Leave a comment

A cursory reading of the mandate of Working Group III reveals that the discussion at UNCITRAL of ISDS (Investor-State Dispute Settlement) reform focuses only on procedural aspects of dispute settlement under investment treaties and excludes any substantive aspects. However, the topic of respondent states’ counterclaims, albeit procedural in itself, is so inextricably intertwined with substantive…

Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, BIT, Frivolous Claims, Investment Arbitration, Reform, Security for Costs, UNCITRAL WG III Series, Working Group III

, (Roschier Attorneys, Ltd.)/ /Leave a comment

Ahead of the thirty-ninth session of UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), the General Assembly Secretariat issued a note on issues to be considered on the topic of security for costs and frivolous claims. Averting frivolous claims has been a recurring topic in the ISDS debate over the past years, not least in…

Appellate Court, Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, BIT, Investment Arbitration, Reform, UNCITRAL WG III Series, Working Group III

(Albright StoneBridge Group)/ /1 Comment

One of the topics on the agenda of UNCITRAL Working Group III is the establishment of an Appellate Court system. The system of investor-State dispute resolution therefore now faces the fact that WG III is considering, among other matters, the following: the repeal of local law governing the setting aside of an UNCITRAL award giving…

Appointment of arbitrators, Arbitration, Arbitration Institutions and Rules, Arbitration Proceedings, BIT, Investment Arbitration, Reform, UNCITRAL WG III Series, Working Group III

(The Chinese University of Hong Kong)/ /2 Comments

Arbitrators under the Crossfire While investor-state dispute settlement (ISDS) was created with the purported goal of depoliticizing investment disputes, it is currently at the centre of heated political debates. Investment arbitration follows the commercial arbitration paradigm, with disputing parties playing a direct role in the composition of the tribunal. This is perceived as a tool…

Arbitration, Arbitration Institutions and Rules, BIT, Investment Arbitration, Reform, UNCITRAL WG III Series, Working Group III

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During its last resumed 38th session which took place in Vienna from 20–24 January 2020 the UNCITRAL Working Group III discussed in parallel three reform alternatives, based on the notes prepared by the Secretariat. These alternatives suggested the creation of: (i) a stand-alone review or appellate mechanism; (ii) a standing multilateral investment court (MIC); and/or…

Arbitration, Arbitration Proceedings, Arbitrators, BIT, Investment Arbitration, Reform, UNCITRAL WG III Series, Working Group III

(Australian National University)/ /Leave a comment

Next week was due to be the 39th session of the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III, and its sixth session considering the issue of reform to investor-State dispute settlement (‘ISDS’). The session has since been postponed indefinitely, in light of the current global COVID-19 pandemic. In lieu of Working…

Arbitral Tribunal, Arbitration, Arbitration institution, Arbitration Institutions and Rules, ICSID, ICSID Amendments, ICSID Arbitration, ICSID Procedure, ICSID Proceedings, International Investment Arbitration, Investment Arbitration, ISDS, ISDS Reform, Reform

(Durham Law School) and (Australian National University)/ /Leave a comment

Last month, ICSID published a further Working Paper (WP4) linked to its ongoing reform process, by which it is considering a series of amendments to the ICSID and ICSID Additional Facility Rules. The Working Paper is the fourth in a series of working papers, preceded by Working Papers 1 (August 2018), 2 (March 2019), and…

Arbitration, Crimea, Dispute, Dispute Resolution, Investment Arbitration, Investment law, Turkey

(Bottega Di Bella)/ /Leave a comment

This is a follow-up post that updates on developments in the escalating tensions between Cyprus and Turkey over hydrocarbon explorations in the Mediterranean Sea. In the previous post it was argued that the Italian oil company ENI could launch an arbitration against Turkey under the Italy-Turkey Bilateral Investment Treaty (BIT) in the aftermath of the…

2019 In Review, India, International Commercial Arbitration, Investment Arbitration

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Amazon founder Jeff Bezos on his recent visit to India in January 2020 remarked that the 21st century belongs to India. If that is true, it would also mean a flurry of disputes involving some Indian angle are inevitable and will keep the arbitration industry busy. Thus, even though 2019 may have drawn curtains over…

2019 In Review, Chile, Colombia, Constitutional Court, Damages, Dominican Republic, Dual Nationals, Ecuador, Free Trade Agreements, Investment Arbitration, Latin America, Mexico, USMCA

(Locke Lord LLP)/ /Leave a comment

Introduction In 2019, we witnessed a number of interesting developments in the field of investment arbitration in Latin America. While some of them were in line with expectations, some jurisdictions did deviate from their usual or expected approach to ISDS and surprised us in positive, but also in negative ways. Our authors did a tremendous…

Infrastructure, Investment Arbitration, Italy

(Bottega Di Bella) and (Galvez Pascual SLP)/ /2 Comments

It is our tentative prediction that a recent ruling from the Regional Administrative Court of Tuscany (TAR), which blocked the project to expand Florence Airport’s runaway – and hence, its passenger flow and corollary revenue – may “prepare the ground” for an investment arbitration dispute between Argentinian and Emirati investors and Italy.   Background In…

Efficiency, Estoppel, Investment Arbitration, Jurisdiction, VCLT

(Flor & Hurtado)/ /Leave a comment

In the recently rendered Oded Besserglik v Mozambique award (“Award”), after 5 years of proceedings and millions in costs and expenses, a tribunal accepted a Motion to Dismiss and declined jurisdiction over the dispute for the relevant treaty never entered into force. Despite the fact that Mozambique prevailed on its motion, this case raises several…

Arbitration, Arbitration institution, Arbitration Institutions and Rules, Dispute Settlement, Energy, Energy Charter Treaty, International Arbitration Procedures, International Mediation, Interview, Interviews with Our Editors, Investment Arbitration, ISDS Reform, Multilateral Investment Court

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Alejandro, thank you for joining us on the Kluwer Arbitration Blog! We are delighted to have the opportunity to interview you at a time when the Energy Charter Treaty (ECT) and its modernisation are on the spotlight. Alejandro is the current General Counsel and Head of the Conflict Resolution Centre at the ECT Secretariat, which…

International arbitration, Investment Arbitration, Renewable energy, Royal-decree law, Settlement, Spain

/ /1 Comment

On November 22, 2019, the acting government of Spain passed a long-anticipated legislation in response to more than four dozen of international arbitrations that, since late 2013, have been filed continuously against the country.1)See Clifford J. Hendel & María Antonia Pérez, ‘The Past, Present and Possible Future of the Spanish Renewable Energy Arbitration Saga,’ New…

Arbitration institution, Investment Arbitration, Investor-State arbitration, Third party funding, Treaty

(Kabine Law Office) and (Columbia Law School)/ /Leave a comment

As part of International Investment Law and Policy Speaker Series, on November 14, 2019, the Columbia Center on Sustainable Investment  hosted Dr. Mouhamadou Kane, Project Lead and Manager for the Organisation of Islamic Cooperation (“OIC”) Investment Dispute Settlement Organ. During the program, Dr. Kane explained the text of a draft investment protocol for the OIC…

2019 In Review, Africa, Anti-suit injunction, Arbitration, Arbitration Proceedings, International arbitration, Investment Arbitration, Nigeria, Tanzania

(University of Oxford)/ /Leave a comment

2019 has been a busy year for international arbitration in Sub-Saharan Africa. Indeed, the year has brought an interesting wave of precedents, new domestic statutes, modern international investment agreements, and arbitration events. This post highlights and summarises some of the African developments covered in the Blog in 2019, with many thanks to the authors who…

Counsel, Investment Arbitration, Investment protection, ISDS Reform, Surveys

(School of International Arbitration, Queen Mary University of London (QMUL)) and , (School of International Arbitration, Queen Mary University of London (QMUL) )/ /Leave a comment

Last week QMUL, in partnership with the Corporate Counsel International Arbitration Group (“CCIAG”), launched its first ever survey focusing exclusively on international investment. This is the tenth major empirical International Arbitration survey conducted by the School of International Arbitration at Queen Mary University of London. A link to the survey can be found here. The…

Interim measures, Investment Arbitration, Investment Treaties, Investor, Investor-State arbitration, Provisional measures

(British Institute of International and Comparative Law (BIICL))/ /Leave a comment

As the number of investor-state disputes grows, so does the number of applications for provisional measures. The recent empirical study conducted by the British Institute of International and Comparative Law and White&Case suggests that investors were more than twice as likely to obtain positive decisions on their requests than respondent states. The study also showed that…