Investor-State arbitration

Diversity, Investor-State arbitration, ISDS, ISDS Reform, UNCITRAL WG III Series, UNCITRAL WG3 Series, Working Group III

(Pinna Goldberg) and (Dyakin, Gortsunyan and Partners)/ /1 Comment

Appointments of adjudicators in investor-State dispute settlement (“ISDS”) have recently come under spotlight of the UNCITRAL Working Group III on ISDS Reform (“WGIII”). Recently, at its 51st session in April 2025, the WGIII discussed the draft statute establishing a standing mechanism to resolve international investment disputes (“Draft Statute”). In particular, the Draft Statute contains provisions…

Contract Interpretation, Domestic law, International Investment Arbitration, International Investment Law, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, ISDS, Sovereignty

(Hasselt University, KU Leuven)/ /Leave a comment

Balancing the concurrent rights of sovereign states to regulate in their interest and of foreign investors to be afforded certain standards of protection when investing in a foreign jurisdiction often leads to complex questions in investment arbitration claims. One uncommon, but not entirely novel issue, which was again brought to light in Iskandar Safa and…

Investment Disputes, Investor-State arbitration, investor-State arbitration and mediation, LIDW 2025, Mediation

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

The role of mediation as a dispute resolution mechanism was featured in various discussions during this year’s London International Dispute Week (“LIDW”). Across several sessions, panellists explored mediation’s potential in a range of contexts—from commercial disputes to investor-State conflicts—and considered its growing appeal, including its ability to reduce enforcement risks through tailored, mutually agreed solutions….

Investment Arbitration, Investment Disputes, Investment law, Investment Treaties, Investor-State arbitration, Investor-state tribunals, ISDS, Res Judicata

(University of Leicester)/ /1 Comment

The recent award in Ahron G. Frenkel v. Republic of Croatia has already succeeded in dividing the very tribunal that rendered it—never an encouraging omen. It is unlikely to cease causing a stir in the near future, given its immediate impact on the claimant and its longer-term contribution to the perennial headaches induced by the…

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…

Investment Arbitration, Investment Disputes, Investor-State arbitration, ISDS, OECD, Tax, Taxation, UN

(HHP Chambers) and (WU (Vienna University of Economics and Business) - Institute for Accounting and Auditing)/ /Leave a comment

Recent amendments to the United Nations (“UN”) Model Tax Convention aim at banning the use of investor-State dispute settlement (“ISDS”) provisions for disputing tax measures, thereby attempting to deal a further blow to international investment agreements (IIAs). The UN Model Tax Convention is regularly updated and was drafted with the aim to cater for the…

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…

Commercial Arbitration, Contract Interpretation, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment Treaties, Investor-State arbitration, Treaty, Treaty Interpretation

(University Paris Est Créteil, France)/ /Leave a comment

Dealing with parallel arbitrations can be very difficult, as it is caught between two conflicting constraints: on the one hand, the need to avoid any denial of justice and, on the other hand, the need to avoid two tribunals dealing with the same issue. This problem sometimes arises in treaty-based investment arbitration, particularly when the…

Australia, BIT, Commercial Reservation, Enforcement, From Jurisdiction, India, Investment Arbitration, Investor-State arbitration, New York Convention, Sovereign Immunity

, (Banco Chambers)/ /Leave a comment

In January 2025, a Full Court of the Federal Court of Australia (“Full Court”) upheld a claim by the Republic of India (“India”) to foreign state immunity from proceedings brought by various Mauritian entities (the “Investors”) to enforce an arbitral award in the Australian courts. The Full Court upheld immunity on the basis of India’s…

Australia, BIT, Enforcement, India, Investment Arbitration, Investment Treaties, Investor-State arbitration, New York Convention, Sovereign Immunity

(AnchayilKumar)/ /Leave a comment

The Antrix-Devas saga continues to present twists and turns (see previous coverage on the Blog here, here and here). The latest is the recent decision of the Full Court of the Federal Court of Australia (the “Full Court”) in Republic of India v. CCDM Holdings, LLC & Ors. [2025] FCAFC 2. This decision concerned the…

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…

Canada, Enforcement, Investor-State arbitration, State Immunity

(McGill University, Faculty of Law)/ /Leave a comment

In Republic of India v CCDM Holdings (2024 QCCA 1620), the Quebec Court of Appeal (“the Court”) recently confirmed that India had waived its immunity from enforcement and reinstated a pre-judgment attachment of State assets which a first instance decision had previously quashed. Given creditors’ perennial efforts to have their awards enforced against States that…

Environment, Environmental protection, Human Rights, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investor-State arbitration, ISDS

(Georgetown Law) and (Columbia Law School)/ /Leave a comment

This is the sixth consecutive year that we, either together or separately, have reported on trends at the intersection of human rights and international investment arbitration from the prior year (see prior Blog coverage, here, here, here, here, and here). As we emphasized last year, developments at this intersection continue directional trends from prior years. In particular, the continued reliance…

2024 in Review, Advisory Centre, Dispute Settlement, Investment Arbitration, Investment Disputes, Investor-State arbitration, ISDS, ISDS Reform, UNCITRAL WG III Series, UNCITRAL WG3 Series, Working Group III

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2024 appeared to be one of the busiest years for investor-State dispute settlement (“ISDS”) reform, with significant advances in the United Nations Commission on Trade Law (“UNCITRAL”) Working Group III discussions and the adoption of the modernized Energy Charter Treaty (“ECT”). This post exclusively focuses on Working Group III’s key milestones in 2024 and relevant…

Access to Justice, Achmea, Europe, European Convention on Human Rights, German Federal Constitutional Court, Germany, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment Arbitration, Investor-State arbitration, ISDS

, (Fietta LLP)/ /Leave a comment

On 13 September 2024, the German Constitutional Court (Bundesverfassungsgericht, “BVG” or “the Court”) published two judgments dated 23 July 2024 (available here and here, both in German), accompanied by a press release (here), rejecting as inadmissible two constitutional complaints brought by the claimant in the Eureko (later Achmea) v Slovakia (1) arbitration (“BVG Judgments”).  While other commentators…

Energy Charter Treaty, Investor-State arbitration, Investor-state tribunals, ISDS, Procedure, Provisional measures

(Università degli Studi di Trieste and Luiss Guido Carli)/ /Leave a comment

On 23 July 2024, an ICSID arbitral tribunal in the case Klesch Group v. Germany issued a decision on provisional measures directing the respondent State to refrain from collecting certain windfall profits tax in order to protect the exclusivity of the ICSID arbitral proceedings and the status quo between the parties. This post will summarize…

ACICA, Asia, Australia, Australian Arbitration Week, Corporate Social Responsibility, Energy, Energy Dispute, Environmental protection, ESG, Investor-State arbitration, Oil & Gas, Price revision, Renewable energy, Third party funding

(Australian Centre for International Commercial Arbitration)/ /Leave a comment
ACICA

On 15 October 2024, Norton Rose Fulbright hosted a breakfast panel discussion on the topic of “Hot Cakes and Hot Takes: Trends and Developments in Asia’s Energy Sector” in Brisbane as part of Australian Arbitration Week. The panel was moderated by Dylan McKimmie, Head of Arbitration and Co-Head of Energy, Norton Rose Fulbright Australia and…

Attribution, Awards, Investor-State arbitration, Investor-state tribunals, ISDS

, (Kim & Chang)/ /Leave a comment

On 11 April 2024, the Permanent Court of Arbitration published the award in Mason Capital L.P. and Mason Management LLC v. Republic of Korea (PCA Case No. 2018-55) (“Mason”), reaching the same substantive result as last year’s award in Elliott Associates L.P. v. Republic of Korea (PCA Case No. 2018-51) (“Elliott”), while disagreeing on the…

Australia, Hearings, Investor-State arbitration, ISDS, ISDS Reform, PCA, Permanent Court of Arbitration, Transparency, Transparency in investment arbitrations

(University of Sydney & Williams Trade Law)/ /Leave a comment

On 4 August 2023, in an investor-State dispute settlement (“ISDS) arbitration commenced against Australia on 29 March 2023 under the Association of Southeast Asian Nations (“ASEAN”) Australia New Zealand Agreement for a Free Trade Area (“AANZFTA”), Singapore-incorporated Zeph filed an application for interim measures including an unusual request. Zeph sought an order that Australia’s “officers…

Investment Disputes, Investor-State arbitration, Non-Disputing NAFTA Parties, Non-Disputing Parties

(US Department of State, Office of the Legal Adviser)/ /Leave a comment

Non-disputing Party submissions (“NDPs”) have been a prominent part of the U.S. investor-State dispute settlement (“ISDS”) practice over the last twenty-five years, with an uptick in the number of recent filings. With almost a hundred NDPs filed in investment arbitrations to date (not including oral submissions, which have become a more regular practice), NDPs have…

Canada, ICSID, ICSID Arbitration, Investment Arbitration, Investor-State arbitration, NAFTA, Suspension of Proceedings, USMCA

(Carleton University)/ /Leave a comment

For the first time under Rule 54(2) of the ICSID 2022 Arbitration Rules, the Tribunal in Ruby River Capital LLC v. Canada (ICSID Case No. ARB/23/5) had to decide on a request for suspension of the proceeding. In its Request for Suspension, Canada asked the Tribunal to suspend the proceeding until the Tribunal in TC…

Annulment, Enforcement, Investor-State arbitration, Public Policy, Swiss Private International Law Act, Switzerland

(Walder Wyss)/ /Leave a comment

On 26 April 2024, the Swiss Federal Supreme Court (“SFSC”) rendered decision 4A_486/2023, upholding the unpublished Final Award in Clorox Spain S.L. v. Bolivarian Republic of Venezuela (“Clorox v. Venezuela”) (PCA Case No. 2015-30). In the underlying investment treaty arbitration, Clorox sought compensation for the alleged expropriation and unfair treatment of its investment by Venezuela,…

Constitutional Court, Ecuador, ICSID Arbitration, International arbitration, International Investment Arbitration, Investment Arbitration, Investor-State arbitration, ISDS, Latin America, Trade and investment agreements

, , (Tadir Dispute Resolution)/ /1 Comment

The Ecuadorian government held a referendum and a public consultation on 21 April 2024. Question D of the referendum asked citizens: “Do you agree that the Ecuadorian State recognizes international arbitration as a method to resolve disputes related to investment, contractual, or commercial matters?” (free translation). The substantive proposal of the question was merely based…

Expropriation, ICSID, Investor-State arbitration, Latin America, Panama

, (Reed Smith)/ /1 Comment

In the 2022 case of Omega Engineering LLC and Oscar Rivera v. Republic of Panama (ICSID Case No. ARB/16/42), the Tribunal faced the challenge of distinguishing between a state’s sovereign acts and its commercial activities. This case raised the critical question of when a state’s conduct shifts from exercising sovereign authority to acting as a…