The 5th Annual ITA-IEL-ICC Joint Conference on International Energy Arbitration was held in Houston last month, and the focus was on the year past and the year ahead in the arbitration of international disputes in the energy industry. From the topics discussed, predictions rendered and questions raised at the conference, attendees departed considering whether the…
Introduction The two main reasons why countries generally agree to sign bilateral or multilateral investment treaties (BITs or MITs) are to attract foreign direct investments, while at the same time protecting their own citizens’ investments abroad by reducing political risk. Arguably, there might be multiple added values on top of these reasons for a specific…
The Comprehensive Economic and Trade Agreement (CETA) made waves in a post-Trump era of hostility towards free trade. But not all press is good press and CETA’s investor–state dispute settlement (ISDS) mechanism has come under fire. While all chapters of the CETA entered into force at midnight on September 21, 2017, one didn’t: the controversial…
In the first part of this article, we discussed the need to broaden the debate about the UK’s future trading relationships, touched upon some potential advantages of the UK joining the NAFTA and traced the idea’s limited history. Is there political will? These days, the idea remains on the periphery, even out of sight. Each…
To many, it would seem foolish even to ask whether the UK might join the North American Free Trade Agreement. Yet, the UK should explore all possibilities open in a post-Brexit world. As we explain, the idea that the UK might join the NAFTA is not only conceptually interesting, but also merits entertaining with a…
Critics of the current investor-state arbitration regime may yet have their best days ahead of them. In the midst of tarnished FTA negotiations and in times of political uncertainty, they have captured a global audience. Their message is disconcerting: Investor-State Dispute Settlement (ISDS) is a system designed by and for multinational corporations. It allows faceless…
After the enlargement of the European Union in 2004, many eastern bloc countries acceded to the European Union. BITs entered into between the eastern bloc and the western bloc were transformed into the so-called “Intra-EU BITs”. The problems of Intra-EU BITs arose when the European Commission started its campaign against Intra-EU BITs, alleging their incompatibility…
Chapter 11: Where Investors Go to Complain NAFTA renegotiations began last year and, with attention once again on this 23-year old trade deal, critics are taking the opportunity to voice their concerns. U.S. President Trump has himself propounded, and indeed campaigned on, an abundance of criticism directed at NAFTA. While no part of NAFTA has…
The EU Foreign Investment Screening Proposal Last September, European Commission President Juncker presented a proposal for a European foreign investment screening regulation – apparently following a request by Germany, France and Italy. The proposal follows-up on the Commission’s “Reflection Paper on Harnessing Globalisation”, published in May 2017. The Reflection Paper notes, inter alia, that “Openness…
In late November, the UN Headquarters in Vienna saw the first meeting of Working Group III of the United Nations Commission on International Trade (UNCITRAL). The meeting marked the initiation of a process of analysis and reform – whatever shape it may ultimately take – of the existing Investor State Dispute Settlement (ISDS) regime. At…
The European Commission (“EC”) has recently taken another step in its efforts to replace the traditional investor-state-dispute-settlement (“ISDS”) mechanism which underlies the approximately 1,400 bilateral investment agreements in force between EU Member States and third countries. On 13 September 2017, the EC issued, based on Article 218(3) of the Treaty on the Functioning of the…
Introduction This short note briefly touches upon two enforcement issues pertaining to third-party funding in international arbitration, one more ventilated than the other. It is hoped that our comments on these issues will be perceived as an insightful contribution to an already ignited debate, with the caveat that we provide for a discussion rather than…
New Zealand now officially opposes investor-state dispute settlement (ISDS), thanks to the election of a new centre-left Labour-led coalition government that took office in October 2017. In a post-Cabinet press conference on 31 October, Prime Minister Jacinda Adern announced that: “We remain determined to do our utmost to amend the ISDS provisions of TPP. In…
Debates about the propriety of investor-state dispute settlement (ISDS) were revived by a recent letter by U.S. academics, which urged the abandonment of ISDS in the renegotiated North American Free Trade Agreement (NAFTA). This letter repeated arguments that are familiar from prior ISDS debates, such as that ISDS “grants foreign corporations and investors rights to skirt domestic…
The first publicly available decision issued under the international arbitration process provided for under the Accord on Fire and Building Safety in Bangladesh (‘Bangladesh Accord’) (note that Roger Alford previously summarized the Bangladesh Accord’s dispute resolution clause here) was issued through the 4 September 2017 Decision on Admissibility Objection in Industrial Global Union and Uni…
Third-party funding remains a hot topic in arbitration, which is understandable considering its complexity and that its accompanying issues often have major implications for arbitral procedure. This fall, the ICCA-Queen Mary Task Force on third-party funding in international arbitration released its “draft,” touching upon a number of contemporary issues vis-á-vis third-party funding, all of which…
After the US election, it was a certainty that in my inbox every morning there was at least one, if not more, email with a discussion on the future of arbitration in our changing society today. And this debate has continued in halls of university law schools to GAR events to law firm seminars. I…
Recently, it was reported that after 14 years since Zimbabwe had illegally evicted Dutch farmers from their farms, it finally agreed to pay the damages awarded under the ICSID award, which dates back in 2009. In the Funnekotter et al case, the arbitral tribunal rejected Zimbabwe’s necessity defence, which was based on the claimed need…
In December 2015, I published an article examining whether there was a trend towards the elimination of umbrella clauses from investment agreements, be they bilateral, multilateral, or model investment treaties. By that time, model bilateral investment treaties (BITs) from the United States, France, Canada, Colombia, and the Southern African Development Community (SADC) and many prominent…
The year 1993 saw a significant political transition in Cambodia through the adoption of democratic principles and free market economy. Since then, many legal reforms have been made in order to attract foreign direct investment, and one of which is providing a legal framework for protecting the investment. To date, the Kingdom has signed a…
The below continues and concludes a two-part post about the Spanish renewable energy cases which have been concluded to date, in particular, the apparently contradictory Eiser and Isolux awards, the former of which was decided in May 2017 and the latter, which (although decided in July 2016) only became public in June 2017. Part I…
In furtherance of European and national policy directives, Spain enacted in the early years of this century a series of decrees to regulate the production of electricity from renewable sources and provide incentives to producers. In particular, by Royal Decree 661/2007, a generous, production-based remuneration subsidy in the form of a feed-in-tariff (FIT) was put…
As in García-Marquez’s novel, the denunciation of the Ecuadorian bilateral investment treaties (“BITs”) represents a chronicle of a death foretold and the Ecuadorian National Assembly and Ecuador’s President have taken one of the final steps to terminate them. Along the way, the internal termination proceedings have been highly politicized, international investment arbitration has been demonized,…
The recent mention of “judicial economy” in the award in Eli Lilly and Company v. Government of Canada provides an opportunity to consider judicial economy in investor-state arbitration more generally. In its award of March 16, 2017, the Eli Lilly tribunal determined that certain judicial interpretations of Canada’s patent law did not violate the substantive…
