Investment Arbitration

Achmea, Energy Charter Treaty, European Law, Intra-EU BITs, Intra-EU ISDS, Investment Arbitration, VCLT, VCLT Jubilee, Vienna Convention on the Law of Treaties

(Colibra Insurance)/ /Leave a comment

The Cold War era brought to life, in a strange way, a number of all-encompassing treaties dealing with major subjects such as international treaty-making, diplomatic relations, law of seas, etc. Even among the topics covered by these treaties were enforcement of foreign arbitral awards and investment disputes. However, it seems like the world has already…

International Investment Arbitration, International Law, International tribunals, Investment, Investment agreements, Investment Arbitration, Investment law, Investment Treaties, ISDS, ISDS Reform, Transparency, Treaty, Treaty Interpretation, VCLT, VCLT Jubilee, Vienna Convention on the Law of Treaties

(Australian National University) and (University of Vienna)/ /Leave a comment

The growing public interest in investment treaties and investor-State dispute settlement has prompted an increasing number of States to open to public view aspects of investment treaty negotiations. During the negotiation of the Transatlantic Trade and Investment Partnership (‘TTIP’), for example, both the European Union and the United States sought to ‘maximise’ transparency in the…

International arbitration, International Law, International tribunals, Investment, Investment agreements, Investment Arbitration, Investment law, VCLT, VCLT Jubilee, Vienna Convention on the Law of Treaties

(Proxenia Legal)/ /Leave a comment

The Vienna Convention rules for treaty interpretation (VCLT) routinely referred to by all international courts and tribunals are known to be the result of a compromise between different schools of interpretation and therefore notoriously flexible, in my view too flexible for the purposes of modern-day international dispute resolution. Cases are therefore won and lost according…

ICSID Arbitration, Investment, Investment agreements, Investment Arbitration, VCLT, VCLT Jubilee, Vienna Convention on the Law of Treaties

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It is well settled in the practice of ICSID tribunals that the general rule of treaty interpretation embodied in Article 31(1) of the Vienna Convention on the Law of Treaties (“Vienna Convention”) applies to the interpretation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”). While…

Decision Making, ICSID Arbitration, Investment Arbitration, Investor-State arbitration, VCLT, VCLT Jubilee, Vienna Convention on the Law of Treaties

(Queen Mary University of London)/ /Leave a comment

Legal Reasoning: Interpreting and Applying the Law1)Mary Mitsi, The Decision-Making Process of Investor-State Arbitration Tribunals (Kluwer 2019). When analysing the process of legal decision-making what might first come to mind is the dichotomy between the interpretation and the application of the law. These terms, in some circumstances, may be employed interchangeably due to the strong…

Decision Making, ICSID Arbitration, International Law, Investment agreements, Investment Arbitration, Investment Treaties, VCLT, VCLT Jubilee, Vienna Convention on the Law of Treaties

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

The Vienna Convention on the Law of Treaties (VCLT) was adopted and opened for signature on May 23, 1969, and entered into force on January 27, 1980. In the fifty years since the VCLT was opened for signature, it has become universally regarded as one of the most important instruments of treaty law. It has…

Achmea, Arbitration, BIT, European Law, International arbitration, Intra-EU BITs, Intra-EU ISDS, Investment agreements, Investment Arbitration, Investor-State arbitration, Sunset clauses

(NL-Investmentconsulting)/ /Leave a comment

On 24 October 2019, the European Commission announced that the EU Member States have reached agreement on a plurilateral treaty for the termination of all ca. 190 intra-EU bilateral investment treaties (BITs). The agreement follows the political Declarations of the Member States issued in January this year in which they explained the consequences they are…

Africa, Investment, Investment agreements, Investment Arbitration, Investment law

(Herbert Smith Freehills) and , / /Leave a comment

Investor-State Dispute Settlement (ISDS) is facing significant opposition in its current form. Whilst some parties are engaged to find new common ground, others have unilaterally implemented measures aimed at ousting investor-state arbitration altogether. Over time, more and more attention has been paid to the International Centre for the Settlement of Investment Disputes (ICSID) and its…

DR-CAFTA, Dual Nationals, Investment Arbitration, Jurisdiction of the arbitral tribunal, Latin America

(GST LLP)/ /Leave a comment

It is said that states lose more times than investors in investment arbitration. Indeed, ICSID surveys reveal that while investors receive an award of costs in 41.4% of the cases, states receive a similar award of costs only in 23% of the cases, even when jurisdiction is fully declined. A case where a state prevails…

Bank resolution, BIT, European Union, Investment Arbitration, Mexico, Spain

(Shearman & Sterling LLP) and (University of Luxembourg)/ /Leave a comment

Background In early June 2017, Banco Popular Español S.A. (‘Popular’) was placed into resolution under the European Union’s (‘EU’) Bank Recovery and Resolution Directive (‘BRRD’) and the Single Resolution Mechanism Regulation (‘SRMR’). It was the first – and only, to this day –case where the Single Resolution Board (‘SRB’), as the European resolution authority, intervened…

Full Protection and Security, ICSID, Investment, Investment Arbitration, Investment protection

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The numerous interpretations of the Full Protection and Security Standard (“FPSS”) have complicated the findings of tribunals for many years. A number of tribunals have found that this standard applies only to physical protection. Meanwhile, other tribunals have extended this standard to cover all types of protection from physical to legal and commercial. Also, more…

Arbitration, BIT, International arbitration, Investment Arbitration, Micula, Romania

(Omnia Strategy LLP)/ /Leave a comment

Introduction With less than a month to go before the latest EU-UK divorce date, the UK Supreme Court resumed its hearing in Micula et al. v Romania 2018/0177, relating to the enforcement of the widely discussed ICSID award against Romania. With the UK grappling with its future relationship with the EU, it is interesting timing…

Advisory Centre, Investment Arbitration, Investor-State arbitration, ISDS, ISDS Reform, Working Group III

(Columbia Law School)/ /Leave a comment

In his post of 30 August 2019, Pablo Pérez-Salido discussed the proposal at UNCITRAL’s Working Group III for the establishment of an Advisory Centre on International Investment Law (ACIIL). This post seeks to make a case for such an Advisory Centre.1)This post is based on Karl P. Sauvant, “An Advisory Centre on International Investment Law:…

Claims Trading, Investment Arbitration, Investor-State arbitration

(Georgetown Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

For all the talk about third party funding, little has been said about the buying and selling of claims outright – what I call “claims trading”. A forthcoming article is the first to survey all the known instances of claims trading in international investment arbitration. It reviews more than forty decisions in which tribunals or…

Damages, Expropriation, Investment Arbitration, Venezuela

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This post analyses a series of ICSID arbitration awards against Venezuela since 2014 to understand a pressing concern in many investment arbitrations today: how to deal with the risk of expropriation in quantum calculations. Getting this right is critical to ensure that host states do not benefit from their own wrongful conduct and that investors…

AfCFTA, Africa, Arbitral seat, Arbitration Agreement, Arbitration Proceedings, Insolvency, International arbitration, Investment Arbitration, Investor-State arbitration

(Equanimity Arbitration) and (Keating Chambers)/ /Leave a comment

With over $3 billion invested by Vedanta Resources in Zambia since it became a shareholder in Konkola Copper Mines (KCM) in 2004, it is a less optimistic turn of events with Vedanta Resources and fellow shareholder, the government-owned Zambian State Mining Company ZCCM-IH (ZCCM), being at loggerheads in arbitration. In this post, we examine what…

Advisory Centre, Investment, Investment Arbitration, Investment protection, Investor-State arbitration, ISDS, ISDS Reform, UNCITRAL, Working Group III

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Introduction There are parallel initiatives currently considering a potential reform of the international Investor-State Dispute Settlement (“ISDS”) system. Particularly, the work presently taking place at the United Nations Commission on International Trade Law (“UNCITRAL”) by its Working Group III (WGIII) is one of the forums that continues to attract attention as we get closer to…

Achmea, Energy Charter Treaty, Intra-EU Investment Arbitration, Investment Arbitration

(Vavrovsky Heine Marth)/ /Leave a comment

The tendency of arbitral tribunals constituted under the Energy Charter Treaty (ECT) to reject intra-EU jurisdictional objections, despite contrary views expressed by most EU member states, was recently continued in the case of Landesbank Baden-Württemberg (LBBW) and others v. Kingdom of Spain (ICSID Case No. ARB/15/45).1)Decision on the Intra-EU Jurisdictional Objection, dated 25 February 2019,…

Evidence, Expedited Proceedings, Investment Arbitration, Prague Rules

, (Luther Rechtsanwaltsgesellschaft)/ /Leave a comment

Introduction  The Prague Rules have been widely discussed over the past few months, among others, on this blog.1)Posts on the topic of the Prague Rules can be found here, here, here, here, here, here, here, here and here. Yet, to the knowledge of the authors, none of those discussions has specifically addressed the application of…

Arbitration, Arbitration Proceedings, Expropriation, International arbitration, Investment Arbitration

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

States can regulate as part of their sovereignty and can give away a part of their regulatory freedom by making commitments to foreign investors, such as the obligation to compensate investors for expropriation. Unless a treaty removes or modifies a particular norm of international law, international law on expropriation, including customary law, should apply. The…

Arbitration, Efficiency, Enforcement, International arbitration, International Commercial Courts, Investment Arbitration, Journal of International Arbitration, Powers of the tribunal

(WilmerHale & Queen Mary University of London)/ /Leave a comment

We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:   Lucy Greenwood, Revisiting Bifurcation and Efficiency in International Arbitration Proceedings In 2011, the author published an analysis of available empirical data on bifurcation of disputes in this journal. The article, ‘Does Bifurcation Really…

Bribery, Enforceability, Enforcement, Enforcement of an award that was set aside, International Investment Arbitration, Investment Arbitration

(De Almeida Pereira PLLC)/ /Leave a comment

Discussions of corruption carry strong moral sentiments.  After all, the abuse of public office for private gain erodes people’s trust in government and institutions, makes public policies less effective and fair, and siphons taxpayers’ money away from schools, roads, and hospitals. More generally, broad-based corruption weakens the foundations of a healthy economy, degrades social norms,…

Belt Road Initiative, Central Asia, China, Investment Arbitration

(The George Washington University Law School)/ /1 Comment

Background Since its announcement in 2013, China has invested more than US $120 billion into the target countries along the Belt and Road Initiative (“BRI”) on infrastructure projects ranging from ports and railroads to pipelines. Central Asia will become part of nearly the entire major trade corridor identified under the BRI. Hence the BRI presents…

Confidentiality and Transparency, Danish Institute of Arbitration (DIA), Diversity, ICC, Inherent Powers, Investment Arbitration, IT, M&A, Prague Rules, Witness, Witness Statement

(The Danish Institute of Arbitration)/ /Leave a comment

  The Danish Institute of Arbitration (DIA) and ICC Denmark hosted Copenhagen Arbitration Day earlier this year. Discussion took place on a wide range of topics such as the criticism of arbitration, diversity and the Prague Rules. The day began with three lunchtime seminars. The first took place at the University of Copenhagen, where four…