The second front can open in the United States (“U.S.”) for over 50 investment arbitration claims against the Kingdom of Spain (“Spain”) that are worth hundreds of millions of U.S. dollars combined. The ongoing disputes spotlighted the continuing controversy between the decisions of the European Union’s (“EU”) highest court and international investment tribunals. The cases…
For decades, modern international investment law and arbitration have provided both the procedural mechanisms and substantive grounds for States to advance counterclaims in such proceedings. Coupled with the increased inclusion of provisions on the State’s right to regulate and provisions concerning the substantive areas of environmental, social, and governance (“ESG”) in the latest generation of…
As part of the 2024 Paris Arbitration Week (“PAW”), Curtis, Mallet-Prevost, Colt & Mosle LLP hosted a webinar on “Amplifying the Voices of Developing States in ISDS Reform.” This was the third installment in the “Affaires d’Etats” series on Investor-State Dispute Settlement (“ISDS”) initiated by Curtis during 2022 PAW. As the criticisms of ISDS intensify,…
In the commentary to the ILC draft Articles on State Responsibility it is suggested that interest is not “a necessary part of compensation in every case.” (See Article 38, Commentary 1). However, in investor-State disputes, it has become usual for parties to request, and for tribunals to include, interest on top of compensation. The awards…
Introduction East and Central Asia sees further efforts to promote arbitration through legislative and regulatory developments. Domestic courts clarified issues fundamental to arbitration and the judicial enforcement of arbitral awards. Domestic legislative and judicial bodies and arbitral institutions continue to grapple with recent trends and come up with innovative solutions that reflect the unique experience…
The world has witnessed significant developments in the field of investment protection and dispute settlement in the past decades. This includes both investment treaty negotiations as well as investor-state dispute settlement (ISDS) practices. This field of law has also been subject of a heated debate and a desire for reform. In view of these developments,…
At the Kluwer Arbitration Blog, December is the month to thank our readers and collaborators for their readership, contributions, and support. This is also one of the occasions in which we highlight and we praise our excellent editors. The Kluwer Arbitration Blog will celebrate 15 years of existence in 2024. On 28 January 2009, the…
“Corporations have their own global private court system – called ISDS – which they use to bully governments. But many victims of corporate human rights abuses don’t have any way of winning justice. This is unfair. We need to end these corporate courts now! Rights for people, rules for corporations.” Letter from the Stop ISDS…
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…
The Singapore International Arbitration Centre (SIAC) returned to Manila in full force in 2023. While the last SIAC Manila Conference 2019 was an intimate gathering of only 80 participants, this year’s ‘SIAC Manila Conference 2023: Deep Dive into Arbitration Trends’ held on 25 May 2023 attracted more than 800 registrants, and SIAC had to cap…
International arbitration is a constantly evolving field, shaped by global shifts, technological advancements, and changing expectations. On 31 August 2023 and 1 September 2023, the ICAL Alumni Association held the ICAL 20th Anniversary Conference entitled “Evolution or Revolution: Have We Mastered International Arbitration or Do We Need a New Blueprint for the Future?”. Carolyn Lamm’s (White &…
The Lone Star v. Korea (Lone Star) Award issued on 30 August 2022 is one of the latest investment awards in tax-related investment treaty disputes and the first one in which a tribunal, inter alia, dealt with the application of an anti-tax avoidance substance over form doctrine (SOFD) under a double taxation treaty (DTT). The…
From 29 May to 1 June 2023, Mexico Arbitration Center (“CAM”), the Mediation and Arbitration Commission of the Chamber of Commerce of Mexico City (“CANACO”), and the CAM/CANACO Young Arbitrators Forum came together to organize the inaugural edition of Mexico Arbitration Week. This event aimed to connect professionals from the international community, foster debates, and…
With 17 minutes to spare before the end of the 45th Session, the chair of UNCITRAL Working Group III (WGIII), Mr Spelliscy, announced that a workable compromise had been reached on the last remaining outstanding issue (how to regulate double hatting) and that, therefore, an agreement was reached on a text of the Code of…
The defining challenge of the 21st century is undoubtedly climate change. There is consensus that we need to reduce the level of carbon emissions and abide by the scientific community’s directions to preserve our environment; we are beyond preventing harm – our current urgency is mitigation. We seem united in our common goal to meet…
In preparation for the 42nd session of the UNCITRAL Working Group III (“Working Group”) in February 2022, the UNCITRAL Secretariat issued a note on “Standing Multilateral Mechanism: Selection and Appointment of ISDS Tribunal Members and Related Matters” (“Note”), dated December 8, 2021. The Note builds on several Working Group reports that addressed the selection and appointment…
The past year has seen a variety of exogenous impacts to global energy markets: from the sanctions flowing from Russia’s “special military operation” in Ukraine, to the supply chain aftershocks of the COVID Pandemic, to hiccups in the commercial and government policy implementations of the global Energy Transition. International arbitration too has seen its share…
Few people can pride themselves with a career as rich and impactful as that of the Honorable L. Yves Fortier, PC CC, OQ, KC, Ad. E., LLD and no summary will do it justice. Counsel, negotiator, arbitrator, diplomat, thought leader – these are just some of the hats Mr. Fortier has worn over the years….
The past year has seen several victories for Canada on the ISDS front, a conclusion of a decade-long NAFTA arbitration, and much more. If 2022 is any indication, readers will have many more developments to look forward to during 2023. Canada comes out of 2022 mostly on top in ISDS Of the cases surveyed,…
By a 4-3 majority, the Irish Supreme Court held in Costello v Government of Ireland that the Constitution precludes Irish ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states. Inevitably, the decision has been compared with Achmea and CJEU Opinion 1/17. This post looks at…
2022 was a year of change and action with important developments in investment arbitration in Latin America. The region continues to top the ICSID investment arbitration caseload, accounting for 28% of the total of registered cases by June 2022. In 2022, states and arbitral institutions sought to modernize investment protections and their institutional frameworks. In…
East and Central Asia made further strides to promote arbitration, including through legislative reforms and enhancement of judicial assistance, as well as the accession, ratification, and creation of treaties. Some domestic courts clarified views on fundamental issues in arbitration. On the user side, East and Central Asian parties continued to be active as both claimants…
A seminar on 10 November 2023 during Australian Arbitration Week discussed “Australia’s engagement in the Investor-State Dispute Settlement (ISDS) reform process”. My presentation divided successive governments’ approach into three significant eras over the last decade: anti-ISDS (2011-13), case-by-case ISDS (2014-2021), and uncertainty (since 2022). Some uncertainty has dissipated since the seminar. On 14 November 2022,…
The author presented on this topic at the ACICA/CIArb Future Frontiers Conference, held in Melbourne, Australia on 7 November 2022 during Australian Arbitration Week. This piece elaborates on the presentation that was delivered. In the last decade, as more states have refused to comply with arbitral awards, attempts have been made to seize the assets…
