Investment protection

Investment, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Teaching International Investment Arbitration Series

(Duke University School of Law) and (White & Case LLP)/ /Leave a comment

One could be forgiven for thinking that teaching international economic law in the United States (“U.S.”) is challenging these days. The U.S. has disabled the World Trade Organization’s (“WTO”) Appellate Body. In the United States-Mexico-Canada Agreement (“USMCA”), the parties (following a transition period) eliminated Investor-State Dispute Settlement (“ISDS”) between the U.S. and Canada and curtailed…

Expropriation, International Investment Arbitration, International Investment Law, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, ISDS, Jurisdiction, Jurisdiction of the arbitral tribunal, Jurisdictional challenge

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The takeover of the Chinese-owned British Steel Limited by the UK Government under the Steel Industry (Special Measures) Act 2015 can lead to the submission of a dispute to investment treaty arbitration under the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic…

DR-CAFTA, Exhaustion of Local Remedies, ICSID Arbitration, ICSID Convention, International Investment Arbitration, International Investment Law, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investor-State arbitration

(Lewis & Clark Law School)/ /Leave a comment

On February 26, 2025, the Tribunal in Honduras Próspera Inc., et al. v. Republic of Honduras rejected an unprecedented attempt to dismiss investment treaty claims for failure to exhaust local remedies. While respondent states have often contended that claimants should have pursued local remedies for one reason or another, Honduras advanced a novel argument in…

Deep Sea Mining, Dispute Resolution, Dispute Settlement, International arbitration, International tribunals, Investment protection, ITLOS, UNCLOS

, , (Transnational Economic Research Center (TELC), Law School, Martin-Luther-University Halle-Wittenberg)/ /Leave a comment

With the increasing scarcity of resources on Earth, in particular the increasing demand for the raw materials that are needed for technologies to combat climate change, legal issues relating to the exploitation of the raw materials of the deep seabed are gaining importance. Even though the United Nations Convention on the Law of the Sea…

Denial of Benefits, ECT Modernisation, ECT Withdrawal, Energy, Energy Charter Treaty, Energy Dispute, EU Law, European Commission, European Law, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investor-State arbitration, ISDS, modernisation process

(Geneva Graduate Institute)/ /Leave a comment

2024 witnessed significant developments concerning the Energy Charter Treaty (“ECT”), ranging from a new wave of withdrawals to the adoption of the modernised ECT in December. This post reviews the key ECT-related developments of 2024 and highlights relevant contributions published on the Kluwer Arbitration Blog (“KAB”).   New Wave of Withdrawals from the ECT In…

Africa, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection

(Tilburg Law School)/ /Leave a comment

The Patel Engineering Limited (“PEL”) v the Republic of Mozambique tribunal, constituted under the UNCITRAL Arbitration Rules, dealt with pre-investment expenditures and whether such expenditures constitute a protected investment. Investors frequently make expenditures in the preparatory phase of an investment, such as environmental impact assessments, scientific surveys, or financial advice. When are these expenditures considered…

Africa, European Union, Investment, Investment protection, right to regulate, Sustainability

(NOVA School of Law and PLMJ Lawyers)/ /Leave a comment

The EU-Angola Sustainable Investment Facilitation Agreement (“SIFA” or the “Agreement”) aims at facilitating sustainable investments. Contrary to traditional investment treaties, it does not include substantive protection standards nor investor-State dispute settlement mechanisms. Rather, it seeks to enhance the regulatory landscape of the Parties to make it more investor-friendly. In this post, I wish to focus…

Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Latin America, Uruguay

(CMS Grau )/ /Leave a comment
Asociación Latinoamericana de Arbitraje (ALARB)

On February 13, 2024, a tribunal comprising of Alexis Mourre, Eduardo Siqueiros and Eduardo Zuleta Jaramillo rendered an award in the case of Latin American Regional Aviation Holding S. de S.R.L. v. Uruguay (ICSID Case No. ARB/19/16), under the Panama – Uruguay bilateral investment treaty (the “Treaty”). The dispute concerned Uruguay’s national airline Pluna, where…

Colombia, Fair and Equitable Treatment, FET, Investment protection, Minimum Standard of Treatment

(University of Ottawa Faculty of Law, Civil Law Section)/ /Leave a comment

In a recent book and a report published by the OECD (“Expert contribution Prof Dumberry: Cost of inaction – arbitral practice in respect on FET”, Track 2 program, “Future of Investment Treaties”), I have examined the way tribunals have assessed the relationship between Fair and Equitable Treatment (“FET”) clauses and the Minimum Standard of Treatment…

foreign direct investment, Foreign Investment, Free Trade Agreements, India, Investment, Investment agreements, Investment Arbitration, Investment law, Investment protection, Investment Treaties, Investor, Investor duties, Investor-State arbitration, ISDS, Protection, State-State Dispute Settlement, State-to-state arbitration

(Jindal Global Law School)/ /Leave a comment

It took 16 years of negotiations for India and the European Free Trade Association (“EFTA”)—comprising Switzerland, Norway, Iceland, and Liechtenstein—to clinch a free trade agreement (“FTA”). The newly minted FTA is expected to boost the extant levels of trade between the two countries. The formal name of the signed agreement is the Trade and Economic…

Bonds, Investment Arbitration, Investment Disputes, Investment protection, ISDS, LIDW 2024

(Herbert Smith Freehills)/ /Leave a comment

As part of the 2024 edition of the London International Disputes Week (“LIDW”), Reed Smith LLP hosted a panel on “Bank Collapse and ISDS: Arbitration Strategy and Dramatis Personae”. The panel, moderated by Lucy Winnington-Ingram (Reed Smith), comprised Kathleen Garrett (Reed Smith), Cameron Miles (3 Verulam Buildings), Lorena Fatás Pérez (Ministry of Justice of Spain),…

Arbitration, Energy, Energy Charter Treaty, Energy Dispute, EU Law, European Law, Investment, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, Investor-state tribunals, Italy, Jurisdiction of the arbitral tribunal, Jurisdictional challenge, Renewable energy

(Università degli Studi di Trento)/ /Leave a comment

On March 11, 2024, an ICSID arbitral tribunal (Juan Fernández-Armesto (President), Wendy Miles, Alexis Mourre), rendered an award in Encavis AG and Others v. Italy. The controversy follows some other 14 disputes initiated by EU investors against the Italian State under the Energy Charter Treaty (“ECT”) (some of these discussed here) and falls into the…

Canada, CETA, Europe, European Commission, European Union, Expedited arbitration, Expedited Proceedings, Expropriation, Fair and Equitable Treatment, FET, International Investment Arbitration, International Investment Law, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, ISDS

(Clifford Chance)/ /Leave a comment

Although parts of CETA have been provisionally applied since 21 September 2017, the parts not subject to provisional application – including the investment chapter (CETA’s Chapter Eight) which covers investment protection and dispute resolution – are still pending domestic ratification procedures in 10 EU Member States. In parallel, CETA’s framework for investment protection and dispute…

Colombia, Environmental protection, Investment protection, Latin America, Minimum Standard of Treatment

, (Baker McKenzie)/ /Leave a comment

On February 28, 2024, the arbitral tribunal in the arbitration between Red Eagle Exploration Limited (“Red Eagle”) and Colombia (ICSID Case No. ARB/18/13) issued an award under the Canada-Colombia FTA (2008)) (“FTA”). In this post, we discuss the background to this decision as well as the tribunal’s ruling regarding the merits (minimum standard of treatment…

Climate change, Environment, ESG, Investment Disputes, Investment protection, Investor-State arbitration, Investor-state tribunals, Sustainability, Sustainable economy

, , (King & Wood Mallesons)/ /Leave a comment

Following our previous post on dispute resolution in carbon markets, the ICSID Tribunal in Koch Industries, Inc. and Koch Supply & Trading, LP v. Canada, ICSID Case No. ARB/20/52 (“Koch v. Canada”) recently dismissed the Claimants’ USD 31.3 million claims arising out of a cap-and-trade emissions programme on jurisdictional grounds. The Tribunal’s key findings included…

European Commission, European Union, Investment protection, Investor-State arbitration, Model Clauses

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

In October 2023, the European Commission published a Non-Paper of Annotations to Model Clauses for Negotiation or Re-negotiation of Member States’ Bilateral Investment Treaties (“BITs”) with Third Countries (“Model Clauses”) (“Non-Paper”). Non-papers are informal documents usually put forward in closed negotiations with EU institutions. The views in this Non-Paper do not necessarily communicate an official…

International arbitration, International Award, Investment Disputes, Investment protection, Taxation

(PwC; Lazarski University)/ /Leave a comment

Some of the largest arbitral awards rendered in favour of investors have been based on tax-related (mis)conduct of host states towards investors, e.g., a series of Yukos and others v Russia – US$ 50 billion (the largest award ever rendered), Occidental v Ecuador (II) – US$ 1.77 billion, Cairn v India – excess of US$…

Dual Nationals, Interstate arbitral awards, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor, Latin America, Venezuela

, (JGTorrealba)/ /Leave a comment

In the case of Santamarta v Venezuela, the dispute involved a dual national of Venezuela and Spain, who filed a claim against Venezuela for allegedly obstructing Santamarta’s pharmaceutical business, including an unlawful confiscation of a manufacturing plant. The arbitration proceedings were conducted in accordance with the UNCITRAL Arbitration Rules (1976) on the basis of the…

ACICA, Australian Arbitration Week, Investment agreements, Investment protection, Investor-State arbitration

(Errard Legal)/ /Leave a comment
ACICA

A beautiful Perth morning on Thursday, 12 October 2023 saw the convening of the panel – “Resolving Disputes on Major Projects – Lessons Learned from Recent Arbitration Proceedings”. The panel was moderated by Brian Millar of Francis Burt Chambers, and was generously hosted by Herbert Smith Freehills. The panel was conducted under the Chatham House…

Arbitrability, Dissenting opinions, Fair and Equitable Treatment, Investment Disputes, Investment law, Investment protection, Investment Treaties, Latin America, Panama

(Morgan & Morgan Legal)/ /Leave a comment

Investment treaty arbitration tribunals have addressed issues surrounding State intervention and States’ regulatory freedom time and time again, consequently creating guiding precedent regarding State conduct that could constitute breaches of the fair and equitable treatment (“FET”) or expropriation standards. However, recently, an investment treaty arbitration tribunal not only had to deal with issues surrounding the…

Investment protection, Investor-State arbitration, Israel

and (Meitar Law Offices)/ /1 Comment

Israel is known as the land of “milk and honey.”  But in recent years it has also become known as the land of innovation and entrepreneurship.  Successful Israeli start-ups include Waze (the satellite navigation company), M-Systems (the developer of the first USB drive), and MyHeritage (the online genealogy platform). As Israel has progressively embraced liberalism,…

Arbitral Award, Free Trade Agreements, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, Latin America, Peru

(Baker McKenzie)/ /1 Comment
Asociación Latinoamericana de Arbitraje (ALARB)

Despite the good results obtained for several years in its defense from investment arbitration claims, the Republic of Peru has become one of the countries with the highest number of arbitration claims filed against it. To date, nineteen cases have concluded, and twenty-three cases are pending resolution. In December 2022, an award was issued in…

BIT, Colombia, International dispute resolution, International Investment Arbitration, International Investment Law, Investment agreements, Investment protection, Latin America, Venezuela

(Sciences Po Law School - Paris)/ /Leave a comment

On 3 February 2023, Colombia and Venezuela entered into an Agreement for the Reciprocal Promotion and Protection of Investments (“Treaty”), with the objective of “incrementing the flow of transborder direct investment.” Both states are still to complete the ratification procedure for the Treaty to enter into force. This is an interesting development, especially considering the…

COVID-19, Investment Arbitration, Investment law, Investment protection, World Arbitration Update

, (Nyenrode University), and (CREDIMI – University of Burgundy)/ /Leave a comment

The current era of emergencies, which includes climate change, environmental challenges, armed conflicts, and health crises, has a profound impact on foreign direct investment (FDI). A panel held on 27 September 2022 as part of the second edition of the World Arbitration Update (WAU) engaged with the effect of such global emergencies on international investment…