Investor-State arbitration

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…

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…

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…

Access to Justice, Albania, Arbitral Award, Arbitration, Enforcement, European Court of Human Rights, Foreign arbitral awards, Investment Arbitration, Investment Disputes, Investor-State arbitration, Investor-state tribunals, ISDS, Recognition, Recognition and enforcement of arbitral award

, (Fietta LLP)/ /Leave a comment

On 5 March 2024, the European Court of Human Rights (“ECtHR” or “the Court”) delivered its judgment in Iliria S.R.L. v. Albania (“Iliria”), a case concerning a complaint under Article 6(1) of the European Convention on Human Rights (“ECHR” or “the Convention”) relating to a more than 17-year delay in the conclusion of recognition (exequatur) proceedings…

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…

CIArb, Climate change, Commercial Arbitration, Conference, Investor-State arbitration

(Erasmus University Rotterdam)/ /Leave a comment

On 6 February 2024, the Chartered Institute of Arbitrators (CiArb) European Branch/French Chapter held a seminar at the Paris office of Bird & Bird moderated by Jalal El Ahdab (Bird&Bird) and Alexandre Malan (Belot Malan & Associés) on a crucial topic: Environmental, Social, and Governance (“ESG”) issues and their impact on international arbitration. The panel discussion…

Climate change, Investment Arbitration, Investor-State arbitration

(Climate Change Counsel)/ /Leave a comment

On 24 April 2024, the European Parliament voted for the EU to withdraw from the Energy Charter Treaty (“ECT”). Three days earlier, Ecuador had voted to keep the country’s constitutional ban on investor-state arbitration. These events mark the last chapters in the increasingly turbulent tale of investment treaties and investor-state arbitration. Over the past few…

Bolivia, Illegality, Investor-State arbitration, Latin America, Unclean Hands

(Dentons Guevara & Gutierrez)/ /Leave a comment

For several years, the uncertainty of the (un)clean hands principle has been subject to debate due to the diverse approaches taken by arbitral tribunals. However, in September 2023, the tribunal in Glencore Finance (Bermuda) Ltd. v. The Plurinational State of Bolivia (PCA Case No. 2016-39) may have indirectly settled the uncertainty. The case proposes a…

Investor-State arbitration, Law of the Sea

(University of Padua)/ /Leave a comment

On the 22nd of December 2023, an ICSID tribunal rendered its award in the case of Peteris Pildegovics and Sia North Star v. Kingdom of Norway. The case is of particular interest insofar as it focuses on the interaction among different branches of international law, namely investment law and the law of the sea. This…

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…

China, Enforcement, Investment Arbitration, Investor-State arbitration, Sovereign Immunity

, (Hui Zhong Law Firm)/ /3 Comments

Introduction  On September 1, 2023, the Standing Committee of the National People’s Congress promulgated the People’s Republic of China (“PRC”) Foreign State Immunity Law (“CFSIL”, bilingual version here).  It will enter into force on January 1, 2024, together with the amended Chinese Civil Procedure Law 2023 (“CPL 2023”, English translation here).  The new legislation not…

Investment Disputes, Investor-State arbitration, USMCA

(Clark Hill PLC)/ /Leave a comment

When the USMCA entered into force on 1 July 2020, the general view was that the agreement would limit the ability of investors to file investment arbitration claims because the new rules offered limited access to the ISDS mechanism compared with NAFTA. Furthermore, investors from Canada and the U.S. face an additional restriction as ISDS…

Damages, International Investment Arbitration, Investor-State arbitration, ISDS, UNCITRAL

(Max Planck Institute for Comparative Public Law and International Law)/ /Leave a comment

Readers with antennas tuned to the happenings of the reform process for investor-State dispute settlement at UNCITRAL will know that the topics of damages and causation are on the agenda.  Indeed, at the last sessional meeting of Working Group III, draft provisions on damages and causation were discussed.  These provisions might find their way into…

BIT, Enforcement, India, Investment Disputes, Investor-State arbitration, Jurisdiction, Set aside an arbitral award, Singapore, Switzerland

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

In 2013, Deutsche Telekom AG (“DT”), a German corporation, commenced an UNCITRAL arbitration in Switzerland under the Germany-India BIT claiming that India had (amongst other things) breached the fair and equitable treatment (“FET”) standard. In the arbitration, India raised various jurisdictional objections, which the Tribunal rejected in an Interim Award issued on 13 December 2017….

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…

Appointment of arbitrators, Asia-Pacific, Climate change, Court Assistance, Expedited arbitration, Expedited Proceedings, Insolvency, Institutional Rules, Investor-State arbitration, Northeast Asia, SIAC, SIAC Symposium 2023, Singapore, Singapore International Arbitration Centre, Southeast Asia, Technology

(Sidley Austin LLP) and (Allen & Overy LLP)/ /Leave a comment
YSIAC

The Singapore International Arbitration Centre (“SIAC”) held the SIAC Symposium, its flagship conference, during the Singapore Convention Week on 28 August 2023. The SIAC Symposium featured a conversation with Minister K Shanmugam, SC (Minister for Home Affairs and Minister for Law, Singapore) and a plenary address by Justice Judith Prakash (Justice of the Court of…

Annulment, Arbitrability, Investment Arbitration, Investment Disputes, Investment law, Investor-State arbitration, Latin America, Paris Court of Appeal, Permanent Court of Arbitration, Uruguay

(Freshfields Bruckhaus Deringer)/ /1 Comment

On August 6, 2020, an arbitral tribunal composed of Andrés Rigo Sureda (P), O. Thomas Johnson, Jr., and Pierre Mayer (the Tribunal), constituted under the agreement between the United Kingdom and Uruguay for the promotion and protection of investments (the BIT), issued an award in Prenay Agarwal, Vinita Agarwal and Ritika Mehta v. Uruguay (PCA…

Australia, Energy Charter Treaty, Enforcement, ICSID Convention, Intra-EU ISDS, Investor-State arbitration, State Immunity

, (Banco Chambers)/ /Leave a comment

In June 2018, an International Centre for Settlement of Investment Disputes (ICSID) tribunal issued an award against Spain under the Energy Charter Treaty. The successful claimants then commenced proceedings in Australia seeking recognition and enforcement under the ICSID Convention. Spain responded that it had not submitted to, and therefore had immunity from, the jurisdiction of…

International Arbitration Procedures, Investor-State arbitration, ISDS Reform

(George Mason University)/ /Leave a comment

In May 2023, more than thirty members of the U.S. Congress sent a letter to the Biden administration, arguing that “[l]arge corporations have weaponized [investor-state dispute settlement (ISDS)] to benefit their own interests” and that “the broken ISDS system has time and time again worked in favor of big business interests.” This criticism against ISDS…

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)/ /Leave a 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…

Abusive Claims, Investor-State arbitration, Paris Arbitration Week

, , (Curtis, Mallet-Prevost, Colt & Mosle LLP)/ /Leave a comment

As part of 2023 Paris Arbitration Week (“PAW”), Curtis hosted a webinar on “Affaires d’Etats: Abusive Claims Against States and How to Fight Them”. This was the second edition in the “Affaires d’Etats” series initiated by Curtis last year during 2022 PAW. This year’s panel addressed the growing sentiment in some quarters, including in the…