Investment protection

Achmea, CJEU, European Law, International Investment Arbitration, International Law, Intra-EU BITs, Investment, Investment agreements, Investment Arbitration, Investment law, Investment protection, Investment Treaties, ISDS

(Concepción Global, PLLC, Universidad Complutense de Madrid)/ /Leave a comment

The CERSA (CNRS- University Paris II Panthéon-Assas) organized its third event in a series of seminars on selected topics in international investment law and investor-state dispute settlement (ISDS) (for the report of the first seminar, see here). The seminar on Topical issues in ISDS: EU Investment Law was held in Paris on 7 February 2019…

Investment, Investment Arbitration, Investment protection, Investor-State arbitration, ISDS, ISDS Reform

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Chartered Institute of Arbitrators (CIArb)

At the heart of the debate surrounding Investor-State Dispute Settlement (ISDS) Reform is UNCITRAL Working Group (WG) III.  Until two years ago, WG III was dedicated to discussing issues surrounding online dispute resolution.  But in 2017, in response to several significant awards against states in investment arbitration and corresponding public outcry, the WG III was…

Corruption, ICSID Arbitration, Investment, Investment Arbitration, Investment law, Investment protection, Investor, Investor-State arbitration

, , (Winston & Strawn LLP) and (Rivero Mestre LLP)/ /3 Comments

In recent years, a number of arbitral tribunals adjudicating treaty-based investment disputes have been confronted with the question of what to do when the state party to such a dispute alleges that the investors acquired the investment through corrupt means. In some instances, tribunals have applied the defense as a jurisdictional bar, preventing the investors…

2018 In Review, Achmea, Europe, European Commission, International Investment Arbitration, Intra-EU BITs, Investment, Investment Arbitration, Investment protection, ISDS Reform

(Colibra Insurance)/ /Leave a comment

Very rarely would a single arbitration-related decision produce as significant an impact as the judgment of the Court of Justice of European Union (“EU” and “CJEU” respectively) in the Achmea case did during 2018. We should not doubt that Achmea will remain a cornerstone issue in the world of arbitration for a long period of…

Achmea, CETA, Intra-EU BITs, Investment agreements, Investment Arbitration, Investment law, Investment protection, Investment Treaties, ISDS, ISDS Reform

(NL-Investmentconsulting)/ /Leave a comment

While the jury is still out on whether winter is coming or has already arrived regarding ISDS and investment treaties, I would rather turn to agriculture and use the metaphor of sowing the seeds and harvesting. Since July 2010, when the European Commission published its very first Communication on ISDS and investment treaties, it has…

Human Rights, ICSID, ICSID Arbitration, Investment, Investment Arbitration, Investment law, Investment protection, Investment Treaties, Investor, Investor duties, Investor-State arbitration, ISDS

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Introduction The assessment of human rights within an investment arbitration framework, typical for the investor-state dispute resolution (ISDS) mechanism, is one of the topics which has gained significant momentum in the past years, and has led even to the establishment of a Working Group on International Arbitration of Business and Human Rights. Arbitral tribunals often…

Attribution, ICSID Arbitration, ILC Articles on State Responsibility, Investment Arbitration, Investment protection, Investor-State arbitration

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In the recently published award in Georg Gavrilovic and Gavrilovic d.o.o. v. Republic of Croatia (ICSID Case No. ARB/12/39)1) Georg Gavrilovic and Gavrilovic d.o.o. v. Republic of Croatia (ICSID Case No. ARB/12/39), Award, dated 26 July 2018. the tribunal considered whether the notion of attribution extends to the non-wrongful conduct of various State or State-linked…

Brazil, Cooperation and Facilitation Investment Agreements, Investment, Investment agreements, Investment protection

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

Brazil has been notoriously reluctant to enter into treaties with other States that provide for the protection of investors and investments, viewing them as detrimental to the host State and its national investors. Brazil has no bilateral investment treaties in force, a limited number of its own treaties, named Cooperation and Facilitation Investment Agreements (CFIAs),…

Canada, Investment Arbitration, Investment protection, Investment Treaties, Investor-State arbitration, ISDS, Mexico, NAFTA, USA, USMCA

, (Vinson & Elkins LLP)/ /Leave a comment
Young ITA

President Trump’s October 1, 2018 announcement that the United States, Canada, and Mexico have reached an agreement to replace the 1994 North American Free Trade Agreement (NAFTA) marks a veritable sea change in investor-state dispute settlement in the region. Previous and prospective users of NAFTA’s dispute resolution procedures will immediately note that this new free-trade…

Investment, Investment Arbitration, Investment law, Investment protection, Investment Treaties, Investor, Investor-State arbitration, ISDS

(Savoie Arbitration) and (Fordham School of Law)/ /Leave a comment
Young ICCA

Recent events such as the NAFTA re-negotiations have drawn leading newspapers around the world to turn their attention to ISDS tribunals. Often in an effort to make their stories sensational, they speak of “obscure tribunals,” “secret trade court,” and “justice behind closed doors,” most of the time giving it an unfair and biased image. In…

Investment Arbitration, Investment protection, ISDS, Mexico, NAFTA

(Cooley LLP)/ /Leave a comment
Young ICCA

Mexico held its general elections (including presidential election) on July 1st. The Government of the country has shifted from a center-right president, Enrique Peña Nieto from the Partido Revolucionario Institucional (Institutional Revolutionary Party), to the favorite candidate for the recent elections, the left-wing politician Andrés Manuel López Obrador (“AMLO”). AMLO, a member of the Movimiento…

Environment, Human Rights, Investment, Investment Arbitration, Investment law, Investment protection, Investment Treaties, Investor, Investor-State arbitration, ISDS

(Stockholm University)/ /Leave a comment

Based on the panel discussion moderated at the 30th Annual ITA Workshop and Annual Meeting, with panelists Lorraine de Germiny, Robert Landicho, and Laura Sinisterra.1) This post is a summary of the first panel discussion of the Young ITA Roundtable, 30th Annual ITA Workshop and Annual Meeting: Multiple Proceedings, Multiple Parties, and International Arbitration: What…

Fair and Equitable Treatment, Intellectual Property, Intellectual Property Rights, Investment, Investment agreements, Investment Arbitration, Investment law, Investment protection, Investor, Investor-State arbitration, ISDS

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In the first part of this article, we discussed the problems of balancing an investor’s intellectual property rights with the sovereign right of a State. Now, we look at how Philip Morris v Uruguay has added to the debate. In 2010 Philip Morris challenged two measures adopted by the government of Uruguay: (1) a “single…

Fair and Equitable Treatment, Intellectual Property, Intellectual Property Rights, Investment Arbitration, Investment law, Investment protection, Investor, Investor-State arbitration, ISDS

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The constructive framework of ISDS was intended to promote investment and growth through the establishment of a stable and predictable atmosphere for investment. However, some have argued that this purpose has been warped to allow a small group of private individuals to rule on public matters. Arbitrations such as CMS v Argentina, Tecmed v Mexico,…

Applicable Law, Customary international law, ICSID, ICSID Arbitration, Investment Arbitration, Investment protection, Investor-State arbitration, ISDS

(Three Crowns LLP) and / /1 Comment
Three Crowns LLP

Without the rights and protections of a treaty, a foreign investor who suffers a wrongful act at the hands of a host State traditionally has no legal standing to pursue an international claim against that State.1) Case Concerning the Barcelona Traction, Light & Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3,…

Achmea, BIT, ECJ, Europe, European Law, European Union, Intra-EU BITs, Investment agreements, Investment Arbitration, Investment protection, Uncategorized

(Vavrovsky Heine Marth)/ /2 Comments

Over the past two months, the judgment by the Court of Justice of the European Union (“CJEU”) in Slovak Republic v Achmea BV, hereinafter referred to as “Achmea”, has created much discussion among arbitration practitioners. Its reasoning and implications have already been addressed in several Kluwer Arbitration blog posts, available here, here and here. The…

Investment protection, Minimum Standard of Treatment

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International Minimum Standard of Treatment (IMST) is one of the most important protection standards available to non-domestic investors under international law. The standard has been a subject of controversy on a number of occasions (see, for instance Saluka v. Czech Republic). Much of the controversy and debate arise with respect to the relationship of IMST…

Austria, BIT, Canada, CETA, China-Australia Free Trade Agreement, China-Korea Free Trade Agreement, Corporate Social Responsibility, India, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, ISDS, Norway, TPP

(Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre of UNSW Law)/ /1 Comment
Institute for Transnational Arbitration (ITA)

In the context of the backlash against investor-state dispute settlement (“ISDS”), one of the main criticisms is the asymmetric nature of investment treaties, which impose numerous obligations on the States, but do not seem to hold corporations accountable for the social, environmental and economic consequences of their activities. Some recent developments reflect a redirection away…

Adverse Inference, Algeria, Arbitration, Canada, Czech Republic, Ecuador, Good Faith, IBA Rules of Evidence, Investment protection, Investor-State arbitration, Poland, Venezuela

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Principles of adverse inferences are applied universally. International law endorses the arbitrator’s inherent authority to draw adverse inferences against a party for unjustified non-compliance with an order to produce information. Moreover, arbitrators can rely on general principles of law when applying adverse inferences as a basis for decisions. The general principle of good faith imposes…

Conflict Zones, Damages, ICCA Sydney 2018, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, ISDS, Sovereign Wealth Funds

(Corrs Chambers Westgarth)/ /Leave a comment
Young ICCA

The afternoon session of the second day of the ICCA Sydney 2018 Conference on “New Voices” was moderated by Monty Taylor and had the insightful contributions of Jawad Ahmad, Lucas Bastin, Samantha Lord Hill and Solomon Ebere. Monty Taylor opened the session by noting that not only was this a new initiative for ICCA, but…

Expropriation, Fair and Equitable Treatment, ICCA Sydney 2018, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, ISDS, Most Favoured Nation (MFN)

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King & Wood Mallesons

The panel on Arbitration Challenged Part I: Reforming Substantive Obligations in Investment Treaties and Conditions of Access to Investment Arbitration, at ICCA Sydney 2018 Conference, was moderated by Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (Canada) and had contributions from speakers Christophe Bondy, Cooley LLP (Canada); Max Bonnell, White…

Arbitration, BIT, European Law, European Union, ICSID, ICSID Arbitration, ICSID Convention, Interviews with Our Editors, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, ISDS

(Stockholm University)/ /Leave a comment

In the midst of challenges to the very legitimacy of Investor-State Dispute Settlement (ISDS), the International Centre for Settlement of Investment Disputes (ICSID) celebrated its 50th anniversary and embarked on the fourth ICSID Rules amendment process in ICSID history. The previous amendment processes brought notable additions to the ICSID Rules, such as enhanced transparency in…

Investment, Investment Arbitration, Investment protection, ISDS, UNCITRAL

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In late November, the UN Headquarters in Vienna saw the first meeting of Working Group III of the United Nations Commission on International Trade (UNCITRAL). The meeting marked the initiation of a process of analysis and reform – whatever shape it may ultimately take – of the existing Investor State Dispute Settlement (ISDS) regime. At…

Arbitration, Energy, Energy Charter Treaty, Intra-EU BITs, Investment Arbitration, Investment protection

(Bottega Di Bella)/ /Leave a comment

Currently, several dozen arbitral claims have been lodged by investors from an EU Member-State against another EU Member-State based on the Energy Charter Treaty (ECT). These so-called intra-EU ECT-based arbitrations seem to be increasing, despite attempts by the European Commission to halt them. So far, neither the Respondent-States nor the Commission (as amicus curiae) have…