NAFTA

Artificial Intelligence, HKIAC Rules, Investment Arbitration, NAFTA, SCC Rules, Singapore, Summary Judgment, Summary procedure, Third party funding, TPPA

(Freshfields Bruckhaus Deringer LLP)/ /2 Comments
YSIAC

2017 was a busy year for international arbitration. Taking a walk down memory lane, we saw new players and new industries entering the game, institutions adopting new rules, and we have some new challenges to tackle. This note summarizes some highlights and low lights in international arbitration during 2017 from across the globe. Happy Holidays…

Energy, NAFTA, USMCA

(Locke Lord LLP)/ /Leave a comment

On the campaign trail, and throughout his term in office, President Trump has not been shy to express his discontent with the North American Free Trade Agreement (NAFTA), vowing he will either renegotiate it or “tear it up.” As a result, in August 2017, the United States, Canada, and Mexico (the Parties) officially began renegotiation…

Anti-arbitration, Anti-ISDS Propaganda, Canada, China, Financial Industry, Investor-State arbitration, ISDS, Mexico, NAFTA, Negotiation, Pro arbitration, United States, USMCA

/ /1 Comment

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…

Arbitration, Calvo Doctrine, ISDS, NAFTA, United States, USMCA

(Richard Levin Arbitration)/ /Leave a comment

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…

Fair and Equitable Treatment, NAFTA, Trans-Pacific Partnership, United States, USMCA

(Hanotiau & van den Berg)/ /1 Comment
Young ICCA

Despite apparent “America First” language in the US Summary of Objectives for the NAFTA renegotiation which appear contrary to the minimum standards of treatment and fair and equitable treatment, those protections are likely to remain in a new NAFTA. On 17 July 2017, the US Trade Representative published the “Summary of Objectives for the NAFTA…

Investment Arbitration, ISDS, Judicial Economy, Minimum Standard of Treatment, NAFTA, WTO

(US Department of State)/ /1 Comment

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…

Investment protection, ISDS, Mexico, NAFTA, North America, Survival clauses, USMCA

(Hogan Lovells International LLP)/ /1 Comment

NAFTA on the tightrope One of President Donald Trump’s most frequent campaign promises was to “eliminate” the North American Free Trade Agreement (“NAFTA”), which he described as “the worst trade deal maybe ever signed anywhere, but certainly ever signed in this country.” He then softened his tone and stated that he would renegotiate the treaty,…

ISDS, NAFTA, TPP, Trans-Pacific Partnership, United States

(Lalive) and (Dechert)/ /1 Comment

In recent weeks, criticism of the TPP has been increasingly focused on the Investor-State Dispute Settlement (ISDS) mechanism contained in its Chapter Nine. Massachusetts Senator Elizabeth Warren initiated the charge against the TPP’s ISDS mechanism, and her attacks were recently supported by more than two hundred economists and law professors, who addressed a letter to…

Canada, Egypt, Free Trade Agreements, ICSID Arbitration, NAFTA, TPP, Trans-Pacific Partnership

/ /2 Comments

On June 6, 2016, the ICSID Secretary General registered a request for arbitration in Global Telecom Holding (GTH) v. Canada. Although the text of the arbitral claim is not yet public, it appears likely that the dispute relates to GTH’s involvement (or attempted involvement) in Canada’s wireless telecommunications sector. This claim may be historic for…

NAFTA, Trans-Pacific Partnership, VCLT

(Allende & Brea)/ /Leave a comment

The Trans-Pacific Partnership (“TPP”) is a state-of-the-art multi regional trade agreement that, once ratified, will transform the scenario of international trade and arbitration for the next century. The TPP will have an impact on the rules governing global investment, influencing future and current negotiations of Bilateral Investment Treaties (“BITs”) and Free Trade Agreements (“FTAs”). It…

BIT, Free Trade Agreements, NAFTA, Trade Promotion Authority, Trans-Pacific Partnership, Treaty, United States

, (Hogan Lovells)/ /Leave a comment
Hogan Lovells

A lot has been written recently about the importance of Trade Promotion Authority (TPA) in the context of the ongoing Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) negotiations. TPA is the authority Congress grants to the President to enter into certain reciprocal trade agreements that Congress can approve or disapprove but cannot…

International Law, Investment Arbitration, NAFTA, Res Judicata

(US Department of State)/ /Leave a comment

The recently published Award in Apotex Holdings Inc. and Apotex Inc. v. United States of America (Apotex III Award) is the first NAFTA award to apply the doctrine of res judicata. The Apotex III Tribunal confirmed that the operative part, together with the underlying reasoning, of an earlier award determined that Apotex’s abbreviated new drug…

Hearings, Investment Arbitration, NAFTA, Non-Disputing NAFTA Parties

(Wayne State University)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

Procedural orders rarely become the subject of blog posts, much less the impetus for concerted action among states anxious to control the strategic space on which investment treaty arbitrations unfold. However, a series of orders in Detroit International Bridge Company v. Canada generated controversy when the tribunal steadfastly excluded representatives of the United States from…

Exhaustion of Local Remedies, International Law, Investment, Investment Arbitration, Investment protection, Investor, NAFTA

(University of Michigan Law School)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

In its Award on Jurisdiction and Admissibility, a unanimous tribunal in Apotex, Inc. v. United States dismissed a Canadian manufacturer’s claims that the United States judiciary had violated NAFTA by mis-applying a regulatory time period. Most of the reaction to Apotex has focused on the tribunal’s decision that the claimant’s activities in the United States—and…

BIT, Book Review, NAFTA

(Pepperdine University School of Law)/ /1 Comment
Institute for Transnational Arbitration (ITA)

In recent years, Oxford University Press has devoted considerable effort to enhancing its transnational law list. In doing so, it has added several titles addressing international arbitration and investor-State topics. Among its more recent offerings is Commentaries on Selected Model Investment Treaties (hereinafter “Commentaries”) edited by Dr. Chester Brown. Commentaries is substantial. It comprises 895…

Fair and Equitable Treatment, NAFTA, Permanent Court of Arbitration

(University of Ottawa Faculty of Law, Civil Law Section)/ /Leave a comment

Last week the hearing on jurisdiction and liability in an arbitration between Bilcon of Delaware et al. and the Government of Canada was streamed live on the website of the Permanent Court of Arbitration (‘PCA’). One of the most disputed issues between the parties in this case is the meaning and the scope of the…

CAFTA, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, NAFTA, Trans-Pacific Partnership

(Public Citizen)/ /Leave a comment

As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context. Threats to Public Interest Policy For a growing array of…

International arbitration, NAFTA, Transparency in investment arbitrations

(Investment Arbitration Reporter)/ /3 Comments

Transparency of investment treaty arbitration is back on the radar this week as delegations convene in Vienna for the latest meeting of the UNCITRAL Working Group II on Arbitration and Conciliation. While governments debate the scope and content of new transparency obligations, one issue that has received less attention is a sometimes-seen corollary of greater…

Confidentiality, Confidentiality and Transparency, Costs in arbitral proceedings, ICC Arbitration, ICSID Convention, Investment Arbitration, NAFTA, Not-for-profit organizations (NGO), Transparency in investment arbitrations, UNCITRAL Model Law

(Independent Arbitrator)/ /1 Comment

Monday’s New York conference on “Arbitration with States and State Entities under the ICC Rules” got me thinking about the possibility of amicus submissions in investment cases before the ICC or other institutions beyond ICSID. A few musings: Are amicus debates likely to arise in the ICC context? The answer is yes. Although most ICC…

Investment Arbitration, Investment protection, NAFTA, Trade

/ /Leave a comment

Mandatory research and development investment requirements (hereinafter ‘R&D Requirements’) may be prohibited under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’). A decision in Mobil Investments Canada Inc. and Murphy Oil Corporation v. Government of Canada (‘Mobil v. Canada’) is highly anticipated after a U.S. website leaked the fact that Canada had lost…

ASEAN, Asia-Pacific, Canada, Investment Arbitration, NAFTA, Trade

(University of Arizona James E. Rogers College of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The Obama Administration’s only current regional trade negotiations, the Trans-Pacific Partnership (TPP), continue slowly toward a possible conclusion in 2013, with 12 rounds of negotiations having been completed as of the end of May 2012. A major element of a re-energized American focus on political, security and economic considerations in Asia, the TPP if it…

NAFTA, Suggestions to improve transparency and access to usable data, Transparency in investment arbitrations

(US Department of State)/ /Leave a comment

On March 11, 2001, The New York Times published an article entitled “Nafta’s Powerful Little Secret; Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say.” It began, ominously: “Their meetings are secret. Their members are generally unknown. The decisions they reach need not be fully disclosed.” Over the ensuing decade, while NAFTA Chapter Eleven…

ASEAN, BIT, Investment agreements, Investment Arbitration, NAFTA, Vienna Convention on the Law of Treaties

(University of Notre Dame)/ /3 Comments
Institute for Transnational Arbitration (ITA)

Investment treaty provisions that allow joint decisions by States Parties to override or control arbitral tribunals’ interpretations of investment treaty standards scarcely appear in international investment agreements. The recently released 2012 United States Model BIT is a rare example. The 2012 version carried over Article 30(3) of the 2004 United States Model BIT, enabling States…

Arbitration Institutions and Rules, Arbitration Proceedings, ICSID Convention, International arbitration, International Courts, International Law, NAFTA

(Richmond School of Law)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Martinus Nijhoff Publishers, 2012) has just shipped. I am the (proud) editor and a contributor of the book and am delighted to have the opportunity to bring it to the attention of this group. I think it will be of special interest to arbitration practitioners….