Investor-State arbitration

AfCFTA, AfCFTA Investment Protocol, Africa, Amicus Curiae, Cultural heritage, India, Investor-State arbitration, ISDS

(Africa Arbitration Academy )/ /5 Comments

Many will recall the historic ruling of Justice Neil Gorsuch in McGirt v. Oklahoma (2020), where the United States Supreme Court upheld an 1866 treaty between the United States and the Muscogee (Creek) Nation, which established the Muscogee Nation’s geographic borders. The Court decided that much of current Eastern Oklahoma is to remain Indian land…

AfCFTA, AfCFTA Investment Protocol, Africa, ICSID, Investor-State arbitration

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Cases involving African parties contribute to a significant number of International Centre for the Settlement of Investment Disputes (ICSID) cases. Indeed, 15% of ICSID cases involve parties from sub-Saharan Africa and 18% of ICSID cases involve parties from Middle East and North Africa. The UNCTAD database of Investor State Dispute Settlement (ISDS) cases records 145…

Investor-State arbitration, ISDS, SCOTUS, United States, United States Courts

(Hecht Partners LLP)/ /3 Comments

Investor-state international arbitration may provide a way forward for Survivors and their heirs after the U.S. Supreme Court’s decision denying claims in two restitution cases regarding Holocaust-era stolen property:  Federal Republic of Germany v. Philipp (for return of Medieval art stolen by the Nazis) along with the companion case of Republic of Hungary v. Simon…

International Investment Arbitration, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, ISDS, Regional Comprehensive Economic Partnership, WTO

(National University of Singapore) and (City University of Hong Kong/ UMBRA Strategic Legal Solutions)/ /1 Comment

The Regional Comprehensive Economic Partnership (RCEP) was signed by its 15 Parties (after India, an initial negotiating party, withdrew from negotiations) on 15 November 2020.1)This article represents the authors’ personal opinions and does not represent the opinion of their respective organisations. The signature of this agreement amid the COVID-19 pandemic has made quite a headline…

AfCFTA, Africa, International Investment Law, International Mediation, Investment Arbitration, Investment law, Investor-State arbitration, investor-State arbitration and mediation, ISDS

(Swiss Chamber of Commercial Mediation)/ /2 Comments

Many see the Pan-African Investment Code (PAIC), a model instrument adopted by the African Union (AU) in 2015, as the first step toward the ‘africanization’ of international investment law. While several national and regional instruments on foreign investments had been adopted by African States and Regional Economic Communities (RECs) prior to the PAIC, the latter’s…

Annulment, Egypt, International Investment Arbitration, Investor-State arbitration, Libya, MENA

(Riad & Riad; Cairo University School of Law)/ /1 Comment

In a ‘ground-breaking’ precedential decision, Al-Kharafi v Libya (Judgment No. 39 of 130 JY, 3 June 2020), the Cairo Court of Appeal in Egypt ruled that it can review an arbitral award for fundamental errors of law that amount to a violation of public policy or equity and justice notions. The decision relates to an…

Africa, Investment, Investment Arbitration, Investment law, Investor-State arbitration

(University Cadi Ayyad)/ /Leave a comment

In less than a decade, the Republic of Côte-d’Ivoire enacted two investment laws (2012 and 2018). The latter one recently amended, reflects the best practices the country has learned from its previous investor-states disputes. On December 18, 2019 the Council of Ministers introduced some amendments to the 2018 Investment Code related inter alia to VAT…

Corporate Restructuring, Investment Arbitration, Investor, Investor-State arbitration, Investor-state tribunals, Piercing of the Corporate Veil

(British Institute of International and Comparative Law (BIICL))/ /Leave a comment

Traditionally, nationality for corporate entities has been regulated by national law, often by reference to whether a corporation has a seat in a country or was incorporated under its laws. However, international investment law has departed from the generally accepted rules of international law on the nationality of corporate persons. Already in the 1960s, the…

COVID-19, Investment, Investment Arbitration, Investor-State arbitration

(Egyptian Ministry of Justice)/ /Leave a comment

COVID-19: Background and Impact on Foreign Investment in the Developing Countries As discussed on the Blog previously, the number of confirmed cases of COVID-19, the disease caused by the virus named SARS-CoV-2, continues to rise globally, as shown on this page from the WHO. Today, the virus has already spread in Western Europe and the…

Expropriation, Investment Arbitration, Investor-State arbitration, Minimum Standard of Treatment, Most Favoured Nation (MFN), National Treatment, Non-Disputing NAFTA Parties, Non-Disputing Parties, United States

(US Department of State)/ /Leave a comment

In 2019, the United States (‘U.S.’) made six non-disputing Party submissions in investment treaty arbitrations, three of which took place under the NAFTA (Lion Mexico Consol. L.P. v. Mexico; Vento Motorcycles, Inc. v. Mexico; and Tennant Energy, LLC v. Canada), and one each of which took place under U.S. agreements with Korea, Peru and Panama (Jin Hae…

COVID-19, Investment Arbitration, Investment protection, Investor-State arbitration

(Georgetown Law)/ /Leave a comment

Extraordinary Times  These are extraordinary times in many regards. The spread of novel coronavirus (“COVID-19”), now considered a pandemic, continues to have a significant global impact on several fronts. For States, the pandemic of course presents significant public health challenges. As we are seeing, it also presents significant economic challenges, due to the convergence of…

COVID-19, International Investment Arbitration, Investment law, Investment protection, Investor, Investor-State arbitration

, (Quinn Emanuel Urquhart & Sullivan, LLP)/ /2 Comments

In response to the escalating COVID-19 crisis, States around the world have taken a variety of measures seeking to stem the spread of COVID-19 and to provide for medical supplies and protective equipment, including emergency declarations empowering governments to take control of private businesses, closure of borders, quarantines, stay-at-home orders, suspension of mortgage and utility…

BIT, Climate change, International agreement, Investor-State arbitration, Sustainable economy

, (Clyde & Co LLP)/ /Leave a comment

UN Secretary-General António Guterres opened the COP25 climate change conference on 2 December 2019 saying that: “…At current trends, we are looking at global heating of between 3.4 and 3.9 degrees Celsius by the end of the century. The impact on all life on the planet – including ours – will be catastrophic. The only…

Access to Justice, Applicable Law, Investor-State arbitration, ISDS, ISDS Reform, Rule of Law, Working Group III

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

As UNCITRAL Working Group III is proceeding to address concrete proposals to reform treaty-based investor-state arbitration, the future of investor-state dispute settlement (ISDS) is at a historic juncture. Reform proposals include both incremental changes to investor-state arbitration and proposals for further institutionalization, such as the call of the European Union (EU) to establish a Multilateral…

Arbitration institution, Investment Arbitration, Investor-State arbitration, Third party funding, Treaty

(Kabine Law Office) and (Columbia Law School)/ /Leave a comment

As part of International Investment Law and Policy Speaker Series, on November 14, 2019, the Columbia Center on Sustainable Investment  hosted Dr. Mouhamadou Kane, Project Lead and Manager for the Organisation of Islamic Cooperation (“OIC”) Investment Dispute Settlement Organ. During the program, Dr. Kane explained the text of a draft investment protocol for the OIC…

Achmea, Arbitration Awards, Foreign Investment Law, ICSID Convention, International Humanitarian Law, International Investment Arbitration, International Law, International Law Weekend, Investor-State arbitration, ISDS, ISDS Reform

, (Dechert), (Dentons US LLP), (Dentons), and (McDermott Will & Emery)/ /Leave a comment

The 98th Annual Meeting of the American Branch of the International Law Association (“ABILA”), known as ABILA’s International Law Weekend (“ILW”), took place in New York City on 10 – 12 October 2019. ILW, ABILA’s premiere annual event, featured 35 panels covering a broad range of topics of international law.1)The summary of the views expressed…

Interim measures, Investment Arbitration, Investment Treaties, Investor, Investor-State arbitration, Provisional measures

(British Institute of International and Comparative Law (BIICL))/ /Leave a comment

As the number of investor-state disputes grows, so does the number of applications for provisional measures. The recent empirical study conducted by the British Institute of International and Comparative Law and White&Case suggests that investors were more than twice as likely to obtain positive decisions on their requests than respondent states. The study also showed that…

Decision Making, ICSID Arbitration, Investment Arbitration, Investor-State arbitration, VCLT, VCLT Jubilee, Vienna Convention on the Law of Treaties

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

Legal Reasoning: Interpreting and Applying the Law1)Mary Mitsi, The Decision-Making Process of Investor-State Arbitration Tribunals (Kluwer 2019). When analysing the process of legal decision-making what might first come to mind is the dichotomy between the interpretation and the application of the law. These terms, in some circumstances, may be employed interchangeably due to the strong…

Achmea, Arbitration, BIT, European Law, International arbitration, Intra-EU BITs, Intra-EU ISDS, Investment agreements, Investment Arbitration, Investor-State arbitration, Sunset clauses

(NL-Investmentconsulting)/ /Leave a comment

On 24 October 2019, the European Commission announced that the EU Member States have reached agreement on a plurilateral treaty for the termination of all ca. 190 intra-EU bilateral investment treaties (BITs). The agreement follows the political Declarations of the Member States issued in January this year in which they explained the consequences they are…

Accountability, Dispute Resolution, Exhaustion of Local Remedies, Investor-State arbitration, Pakistan, Prevention

(University of Sussex, University of Turku)/ /2 Comments

Introduction In July this year, an International Centre for Settlement of Investment Disputes (ICSID) based arbitration tribunal ordered the Government of Pakistan (GOP) to pay a massive $5.8 billion to Tethyan in compensation. The legal battle between Tethyan and GOP started in 2011 when GOP refused to grant a mining lease to Tethyan after it…

Environment, Investor duties, Investor-State arbitration

, , (Columbia Center on Sustainable Investment)/ /Leave a comment

Our planet faces unprecedented threats, including irreversible global warming, loss in biodiversity, and water pollution and water scarcity. The impacts of these environmental crises also threaten human rights and exacerbate inequality. Slowing these worsening environmental trends – and addressing the impacts of environmental change on populations – will require cumulative policy responses at the national…

Advisory Centre, Investment Arbitration, Investor-State arbitration, ISDS, ISDS Reform, Working Group III

(Columbia Law School)/ /Leave a comment

In his post of 30 August 2019, Pablo Pérez-Salido discussed the proposal at UNCITRAL’s Working Group III for the establishment of an Advisory Centre on International Investment Law (ACIIL). This post seeks to make a case for such an Advisory Centre.1)This post is based on Karl P. Sauvant, “An Advisory Centre on International Investment Law:…

Claims Trading, Investment Arbitration, Investor-State arbitration

(Georgetown Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

For all the talk about third party funding, little has been said about the buying and selling of claims outright – what I call “claims trading”. A forthcoming article is the first to survey all the known instances of claims trading in international investment arbitration. It reviews more than forty decisions in which tribunals or…

AfCFTA, Africa, Arbitral seat, Arbitration Agreement, Arbitration Proceedings, Insolvency, International arbitration, Investment Arbitration, Investor-State arbitration

(Equanimity Arbitration) and (Keating Chambers)/ /Leave a comment

With over $3 billion invested by Vedanta Resources in Zambia since it became a shareholder in Konkola Copper Mines (KCM) in 2004, it is a less optimistic turn of events with Vedanta Resources and fellow shareholder, the government-owned Zambian State Mining Company ZCCM-IH (ZCCM), being at loggerheads in arbitration. In this post, we examine what…