Latvia is an infamous unicorn in the field of arbitration because of its record-number of institutional arbitration courts. In November 2013, there were 214 arbitration courts in Latvia. Regretfully, this is not because we as a nation love arbitration that much. Liberal regulations have allowed any legal entity to establish an arbitration court which to…
On 23 October 2020, Japan and the United Kingdom (UK) signed a Comprehensive Economic Partnership Agreement (CEPA) with the agreement coming into force on 1 January 2021. This signifies a historic landmark as the UK’s first trade deal as an independent nation, and represents a key milestone for international trade in a post-Brexit UK. The…
Introduction In the past few years, the world has been following the Investor-State Dispute Settlement (ISDS) reform debate under the aegis of the United Nations Commission on International Trade Law (UNCITRAL). This discussion started in 2017, when the UNCITRAL Working Group III began its work on ISDS reform. Among the proposals submitted by member States…
On 14 October 2020, Professor Zachary Douglas QC delivered the 19th annual Clayton Utz and University of Sydney International Arbitration Lecture as part of Australian Arbitration Week. This year’s topic was a response to Australia’s Department of Foreign Affairs and Trade’s (DFAT) review of its bilateral investment treaties (BITs). This blog post provides an overview…
Expedited arbitration is often associated with smaller value disputes. For example, the International Chamber of Commerce suggests expedited arbitration for disputes of $2 million or less, while the Hong Kong International Arbitration Centre has a $3 million threshold for expedited arbitration. Expedited arbitration makes procedural tradeoffs that are deemed warranted because there isn’t that much…
Introducing a regulation of early determination in the context of expedited proceedings, highlights a series conflicting interests. Therefore, the UNCITRAL Working Group II on dispute resolution has not yet taken a final position on whether such a regulation should be inserted in the context of expedited arbitration, or whether it should rather be considered as…
UNCITRAL’s Working Group II (“WGII”) resumes next week its work on drafting expedited arbitration provisions (“EAPs”) for use with the UNCITRAL Arbitration Rules (“UARs”). One of the key “aims” underlying development of these procedures is “to improve the efficiency and quality of arbitral proceedings.” This post examines why efficiency matters, how the EAPs encourage efficiency,…
60 member states and several more non-governmental organizations (NGOs) will soon gather (in person in Vienna and virtually) to commence the 72nd Session of UNCITRAL Working Group II (WGII). The topic and issues of Expedited Arbitration Procedures (EAPs) was primed at the 69th Session of the WGII in New York, including how best to improve…
The UNCITRAL Working Group II (“WG II”) will continue its work on drafting expedited arbitration provisions (EAPs) at its next session in Vienna on September 21 – 25, 2020. This post briefly considers some of the key points that will be addressed at the session relating to the form and scope of the EAPs. This…
Arbitrating investment disputes has its peculiarities stemming out of the nature of the dispute, as well as from the parties involved, which become relevant when assessing the feasibility of implementing expedited arbitration provisions. ICSID Arbitration Rules and UNCITRAL Arbitration Rules, the main arbitration rules currently used for investment arbitration proceedings, are in the process of…
Next week, the seventy-second session of the United Nations Commission on International Trade Law’s (“UNCITRAL”) Working Group II (“WG II”), considering the issue of expedited arbitration, will be held in a hybrid system, with participants being able to take part in the session either in person, in Vienna, or remotely, via an online platform. The…
Just like many of us have learned to work remotely these past few months, those leading the efforts to reform international arbitration have also had to endure the constraints imposed by the pandemic. At the first-ever virtual ITA-ASIL conference, held on 24 June 2020, Professor Chiara Giorgetti from the University of Richmond School of Law…
The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host…
In the absence of a uniform standard of compensation under the Energy Charter Treaty (“ECT”), tribunals have been tasked with filling the gap and have done so by exercising an important margin of appreciation for the assessment of damages. Such wide discretion has resulted in divergent approaches in assessing damages. Since the first ECT decision,…
The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…
Throughout this week, our contributors from around the globe have offered insights into the USMCA/CUSMA/T-MEC, which enters into force next week. Our contributors have contextualised USMCA against both regional and global developments. Many of them noted the link between USMCA and NAFTA, between USMCA and regional politics, and between USMCA and broader global trends related…
Reforms Are Afoot Calls for investor-State dispute settlement (“ISDS”) reform have catalyzed efforts to evolve the regime. Concurrently, the ISDS system continues to wrestle with tensions between an investment regime primarily oriented towards protecting investor rights, and the human rights normative architecture for protection of individual rights and associated State obligations for protection of such rights. ISDS…
Whenever litigating against states or sovereign entities – or international organisations for that matter – outside of their home jurisdiction there is a roadblock to consider: immunities. On closer inspection, immunities turn out as two roadblocks: immunity from jurisdiction and immunity from enforcement. Whereas the general assumption is that an agreement to arbitrate waives immunity…
On 25 January 2020, India and Brazil signed an investment agreement (the “India-Brazil BIT”). As an agreement that has been signed at the dawn of the new decade, it is symbolic for a few reasons. First, it is a south-south agreement between two large and growing economies. Second, it abandons investor-state arbitration in favor of…
A cursory reading of the mandate of Working Group III reveals that the discussion at UNCITRAL of ISDS (Investor-State Dispute Settlement) reform focuses only on procedural aspects of dispute settlement under investment treaties and excludes any substantive aspects. However, the topic of respondent states’ counterclaims, albeit procedural in itself, is so inextricably intertwined with substantive…
Ahead of the thirty-ninth session of UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), the General Assembly Secretariat issued a note on issues to be considered on the topic of security for costs and frivolous claims. Averting frivolous claims has been a recurring topic in the ISDS debate over the past years, not least in…
One of the topics on the agenda of UNCITRAL Working Group III is the establishment of an Appellate Court system. The system of investor-State dispute resolution therefore now faces the fact that WG III is considering, among other matters, the following: the repeal of local law governing the setting aside of an UNCITRAL award giving…
Arbitrators under the Crossfire While investor-state dispute settlement (ISDS) was created with the purported goal of depoliticizing investment disputes, it is currently at the centre of heated political debates. Investment arbitration follows the commercial arbitration paradigm, with disputing parties playing a direct role in the composition of the tribunal. This is perceived as a tool…
During its last resumed 38th session which took place in Vienna from 20–24 January 2020 the UNCITRAL Working Group III discussed in parallel three reform alternatives, based on the notes prepared by the Secretariat. These alternatives suggested the creation of: (i) a stand-alone review or appellate mechanism; (ii) a standing multilateral investment court (MIC); and/or…
