Investment protection

BIT, ICSID Convention, International Law, Investment, Investment agreements, Investment Arbitration, Investment protection, Jurisdiction, Treaty Shopping

(International Moot Court Competition Association (IMCCA))/ /1 Comment

Akbar the Great once drew with his royal hand a line in the sand. He then told his wise men that if they wanted to keep their jobs, they must invent a way to make the line shorter without touching any part of it. Wise man after wise man approached the line and stood in…

Africa, Arbitration, Arbitrators, Investment protection

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Over the past decade, Africa has emerged as a leading center of economic growth. From mining and manufacturing, to banking and telecoms, nearly every industry is witnessing rapid expansion in Africa, driven by both African enterprises and businesses from around the world. Naturally, an increase in international commerce has resulted in an attendant increase in…

Foreign Investment Law, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection

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In an earlier post, I’d highlighted five notable legal highlights from 2012. Below, and somewhat belatedly, I offer my post-mortem on some key policy developments from 2012. 1. Venezuela and South Africa beat a retreat Venezuela’s exit from ICSID was perhaps the most visible policy story of 2012. The move could bolster the caseload of…

Asia-Pacific, Foreign Investment Law, Investment, Investment Arbitration, Investment protection, Legislation

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On 2 November 2012, President Thein Sein approved, after several months of intense debate between Parliament and the Government, Myanmar’s new Foreign Investment Law (‘FIL’ or ‘the Law’).  The new Law revises the framework for foreign investment in Myanmar which had been in place since a military coup in 1988. Considering the country’s abundant natural…

CAFTA, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, NAFTA, Trans-Pacific Partnership

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As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context. Threats to Public Interest Policy For a growing array of…

ICSID Convention, International arbitration, Investment, Investment agreements, Investment Arbitration, Investment protection, Trans-Pacific Partnership

(Public Citizen)/ /1 Comment

Trans-Pacific Partnership (TPP) negotiations have become the territory where a brewing perfect storm over investor-state dispute resolution (ISDR) is making landfall. The June 2012 leak of the draft TPP Investment Chapter text added energy, but much more is fueling this tempest. In general the ISDR system is coming under increased scrutiny. Public and policymaker concerns…

Dispute Resolution, Investment, Investment agreements, Investment Arbitration, Investment protection, Uncategorized

(Investment Arbitration Reporter)/ /1 Comment

In the final days of 2012, I spent some time flipping back through the stories we’ve covered at Investment Arbitration Reporter, looking to identify the year’s most notable developments. I’ve settled on ten that I think are particularly noteworthy. Half of them are legal in nature, and are highlighted below. The other five are in…

Investment Arbitration, Investment protection, NAFTA, Trade

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Mandatory research and development investment requirements (hereinafter ‘R&D Requirements’) may be prohibited under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’). A decision in Mobil Investments Canada Inc. and Murphy Oil Corporation v. Government of Canada (‘Mobil v. Canada’) is highly anticipated after a U.S. website leaked the fact that Canada had lost…

ICSID Convention, International arbitration, Investment agreements, Investment Arbitration, Investment protection, Latin America

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In a recent blog post, Gary Born highlighted the current role of the Permanent Court of Arbitration in administering state-to-state arbitrations. Given that the PCA has recently released its Annual Report for 2011, I thought I’d complement Gary’s post with some further information about the PCA’s role in administering investor-to-state arbitrations. It’s useful to set…

BIT, Investment Arbitration, Investment protection

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Institute for Transnational Arbitration (ITA)

After a review process that lasted three years, expectations ran high for the revised model U.S. bilateral investment treaty (“BIT”), which was released last month. Stakeholders from many parts of society — the U.S. Congress, environmental organizations, labor groups, business groups, trade associations, academia, the public, and investment experts — weighed in during the review…

Investment agreements, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /2 Comments

This week, Spanish energy firm Repsol put Argentina on notice of an arbitration claim under the Spain-Argentina bilateral investment treaty. The development comes as no surprise, as Repsol had been threatening for some weeks to take such a course if Argentina persisted in nationalizing the bulk of Repsol’s 57% stake in the Argentine firm YPF….

BIT, Commercial Arbitration, International Law, Investment agreements, Investment Arbitration, Investment protection

(University of Portsmouth)/ /10 Comments
Institute for Transnational Arbitration (ITA)

The concept of good faith has been a subject of perennial controversy since it was derived from the Roman legal equivalent ‘bonas fides’. Juristic views on and the legal conceptualization of the idea of good faith may often vary across the cultural divides and legal traditions. At a higher level of abstraction there may be…

BIT, Energy Charter Treaty, Investment, Investment agreements, Investment protection

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The notion of ‘investment’ has been one of the most controversial issues in arbitral proceedings instituted under the ICSID Convention. The award rendered by the UNCITRAL arbitral tribunal in Romak v. Uzbekistan has brought the issue outside of the ICSID context and concluded that, despite the broad definitions of ‘investment’ in Bilateral Investment Treaties (BITs),…

Arbitration, Arbitration Institutions and Rules, BIT, Class arbitration, International arbitration, Investment agreements, Investment Arbitration, Investment protection

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International arbitration has long played an important role in resolving disputes that arise out of political and economic crises.   “Arbitration in Times of Crisis” is the theme of the 9th Annual ITA-ASIL Conference on 28 March 2012 in Washington, D.C. (see program).   The conference will focus on lessons from the past use of arbitral mechanisms…

Investment agreements, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /2 Comments

As Roger Alford mentioned previously, New York University Law School hosted a discussion of the Chevron-Ecuador dispute on October 24th. The event was subject to the Chatham House rules, so my notes below should not be attributed to any particular panelist or audience members. However, in the case of moderator Michael Goldhaber, his views have…

Arbitration Institutions and Rules, Arbitration Proceedings, Arbitrators, arbitrators’ conduct, Bias, BIT, Class arbitration, Due process, Efficiency, Foreign Investment Law, Investment agreements, Investment Arbitration, Investment protection, Public Policy

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In its 4 August 2011 Decision on Jurisdiction and Admissibility, the majority of the Tribunal in Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic affirmed that it had jurisdiction to hear the claims of over 60,000 Italian investors against Argentina arising out of Argentina’s default on various sovereign…

Enforcement, Investment Arbitration, Investment protection

(Investment Arbitration Reporter)/ /2 Comments

Recent reports of the freezing of Russian government funds at the Stockholm Arbitration Institute may be premature, but it still remains possible that a Swedish bailiff could move to seize such funds. At the time of this writing, a freezing request by German businessman Franz Sedelmayer remained under active review at a Swedish government debt…

ICSID Convention, Investment Arbitration, Investment protection

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If you’ve been watching the headlines this month, you may have noticed that the United States of America has launched a novel arbitration against the Republic of Guatemala. The claim alleges that Guatemala is failing to enforce its own labour laws, thus falling afoul of international legal obligations written into the U.S. Free Trade Agreement…

Arbitration Institutions and Rules, Arbitration Proceedings, Enforcement, ICSID Convention, Investment protection

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The Islamic Republic of Pakistan is not foreign to defending investment claims. In order to restore investors’ confidence in its country, the Pakistani government has enacted on April 28, 2011 a law to secure foreign investment. The International Investment Disputes Act (the “Act”) has been qualified by the Pakistani president, Mr. Asif Ali Zardari, as…

BIT, Compensation for Moral Damages, International Law, Investment Arbitration, Investment protection

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As has been chronicled in previous postings, the 2008 decision of an ICSID arbitral tribunal to award $1 Million (US) in “moral damages” to an injured company has been eyed covetously by other investor-claimants in investment treaty disputes. Such sums may be “small change” compared to the more conventional forms of economic compensation claimed for…

Inter-American Conventions, International arbitration, Investment Arbitration, Investment protection, South America

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Herbert Smith Freehills

On 11 March 2011, the UNASUR treaty entered into force. UNASUR (the Union of South American Nations) is a regional organisation that comprises all twelve South American countries: Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela. The entry into force of the treaty is an important development for the international arbitration community given some of the proposals that UNASUR is advancing, particularly in the field of investor-State arbitration.

BIT, Confidentiality and Transparency, Foreign Investment Law, Investment agreements, Investment Arbitration, Investment protection, Transparency in investment arbitrations

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The OECD-hosted Freedom of Investment (FOI) Roundtable is in the process of finalizing a statement regarding the role of international investment in supporting the realization of countries’ green growth objectives.  The draft statement entitled “Harnessing Freedom of Investment for Green Growth” (Draft Statement) and three draft background consultation papers (Draft Papers) are available on the…

Africa, Asia-Pacific, BIT, Canada, Energy Charter Treaty, Europe, International arbitration, International Law, Investment agreements, Investment Arbitration, Investment protection, NAFTA, North America, Russia, Set aside an arbitral award, Set aside an international arbitral award, South America

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Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010. If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all…

Eastern Europe, Europe, Investment agreements, Investment protection

(Konrad & Justich)/ /5 Comments

Within the last two decades, over 30 new states emerged within the international community. From a political, economic, as well as a legal point of view, the formation of a state is always an expedition into unchartered waters. On a domestic level, the establishment of a sound legal system is the prerequisite for a stable…