What are the effects of a settlement agreement between the locally incorporated company and the host state on the foreign shareholder’s pending BIT claim? Two views have emerged under investment treaty arbitration case law. The first view, adopted in Sempra v. Argentina (ICSID Case No. ARB/02/16) and Hochtief v. Argentina (ICSID Case No. ARB/07/31) decisions, holds…
Both UNCTAD and ICSID have recently released documents designed to provide snapshots of key developments and trends in investor-State arbitration. Both documents draw upon a statistical analysis of case filings and outcomes to generate overviews of the lay of the land in this area of law. The documents highlight a number of important trends, and…
It is nearly a trite truism that New Zealanders are, in proportion to New Zealand’s size, over represented in international arbitration. A truism confirmed by John Beechy during an address at the AMINZ International Arbitration Day in Auckland on 18 February. The theme of the Day was how New Zealand could play a more prominent…
As Professor Stacie Strong describes in the conclusion to her impressive work on Class, Mass, and Collective Arbitration in National and International Law, “[t]he last few decades have seen a number of significant shifts in the social, legal, and economic world order, resulting in the increased incidence of large-scale harms in both domestic and cross-border…
Arbitrating in the Gulf The oil and gas sector constitutes one of the most important and competitive market in Gulf countries and despite the recent slide in oil prices, the majority of the Gulf Cooperation Council (GCC) members have reserves and savings from the boom period of 2003-2014 that can underpin spending programmes. It is…
The question of what constitutes an “arbitration” is unlikely to be one that arbitral practitioners have cause to ponder on a daily basis. In fact, such a question might appear at first to be purely theoretical or academic. A recent case (ASADA v 34 Players) from the Victorian Supreme Court in Australia, however, shows the…
On Friday, February 6, Emmanuel Gaillard, Head of the International Arbitration Group for Shearman & Sterling LLP, and Yas Banifatemi, Head of the Public International Law practice of the same firm, visited Harvard Law School to give a talk about the recent award in the Yukos case. Both of these practitioners represented claimants in three…
and Jim James & Trevor Tan Introduction The latest edition of the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules (the 2015 Rules), which came into force on 1 January 2015. These replace CIETAC’s 2012 Rules (the 2012 Rules). The 2015 Rules introduce procedural innovations adopted in past years by bodies such as…
The Pechstein decision of the Munich Court of Appeals (Oberlandesgericht) of January 15, 2015 has made headlines (see here and here). The Munich court refused to recognise an arbitral award of the Court of Arbitration for Sport (CAS), since it held the underlying arbitration agreement between Claudia Pechstein, the speed skater, and her sport’s governing…
I am grateful for the opportunity to introduce to the readers of this blog my new edited book: Litigating International Investment Disputes – A Practitioner’s Guide. International investment arbitration is increasingly complex and specialized, and this book seeks to guide new and experienced practitioners through the workings and details of international investment arbitration proceedings –…
We are pleased to announce that ICSID Secretary-General Meg Kinnear will be presenting a lecture on the “Next Generation of Investment Treaties and Their Impact on Investor-Dispute Settlement,” today (February 12) from 5:00 to 7:00 pm Eastern here at Kluwer Arbitration blog. You can watch the recorded presentation here. The event is sponsored by Notre…
A recent seminar delivered under the Chatham House Rule considered the usefulness of an analogy between Investment Treaty Arbitration (ITA) and domestic public law, with a view to critiquing perceived imbalances in the former. The content of the seminar was grounded in the speaker’s background in ITA and public law litigation including domestic judicial review…
and Oleg Temnikov Purpose of security for costs Security for costs falls into the category of provisional measures and is regulated by Article 47 of the ICSID Convention and Arbitration Rule 39. Its purpose is, inter alia to preserve the effectiveness of the award and the integrity of the proceeding by protecting the requesting party’s…
In 2013, an extensive survey of experienced commercial arbitrators in the U.S. was conducted by the Straus Institute for Dispute Resolution with the cooperation of the College of Commercial Arbitrators (CCA), an organization of more than two hundred of the most experienced arbitrators in the U.S. The Survey provides considerable new data on arbitrators’ experiences,…
The current state of affairs of arbitration within Latin America looks challenging. Many countries are having upcoming ICSID awards which could amount to tens of billions of dollars against them. Most international bonds have a final judgment event of default (EoD), which could lead to a default bond scenario on the sovereign debt of such…
and Paul Tan, Jawad Ahmad and Victor Steinmetz, Rajah & Tann Singapore LLP In what marks the first time where a Singapore court reviews an investment arbitral tribunal’s jurisdiction, the High Court held in Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] SGHC 15 that, contrary to the tribunal’s findings, the…
and Mitchell Moranis, WilmerHale As discussed recently in this forum, the Vienna Convention on the Law of Treaties is the prevailing mechanism for the interpretation of investment treaties (Interpreting Investment Treaties, Roberto Castro de Figueiredo, 21 Oct. 2014). The Vienna Convention, however, was adopted in May 1969. According to the ICSID Database of Bilateral Investment…
The HKIAC has recently updated its 2005 Procedures for the Administration of Arbitration under the UNCITRAL Arbitration Rules (the 2005 Procedures). This is one of several measures the HKIAC has taken in recent years to refine and improve its arbitration offerings. The new procedures incorporate both innovations in HKIAC practice and recent revisions to the…
One of the fundamental issues of investment cases – apparently more frivolous than the strictly legal battles – takes the form of debates over the applicable compensation standard. Historically speaking, the problem was mainly put forth for breaches of Bilateral Investment Treaties that referred to expropriatory behaviors of signatory states. Therefore, if this specific type…
By virtue of a recent Decree (see Decree No. (47) of 2014 Reshuffling the Board of Trustees of the Dubai International Arbitration Center, issued in Dubai on 7 December 2014), HH Sheikh Mohammed Bin Rashid Al Maktoum, the Ruler of Dubai, has appointed Dr. Habib Al Mulla, founder of former Habib Al Mulla & Co,…
The IBA recently revised its Guidelines on Conflicts of Interest in International Arbitration. This was the culmination of a review by the IBA Arbitration Committee, which began in 2012. The salient changes address the rise of advance declarations by arbitrators; third-party funding; increasing significance of arbitral secretaries; and the possibility that an arbitrator, and counsel…
The Inaugural Conference of the European Federation for Investment Law and Arbitration (EFILA) took place on Friday, 23 January 2015, in the Senate House of the Queen Mary University of London. 160 participants ranging from academics, arbitrators, arbitration institutions, companies, lawyers to NGOs reviewed a full day long the EU’s first 5 years of European…
Although a bilateral investment treaty (“BIT”) arbitration and an application made before the European Court of Human Rights (“the Court”) could, at first glance, present opposite objectives, investors alleging a violation of their rights by a State may be inclined to make use of both remedies. As it will be elaborated below, the case law…
The controversial role of non-disputing parties has been the object of a significant amount of literature. While third party funding was a hot topic hitherto, the so-called amicus curia, and its evolving role, might be back in the spotlight. Since the first ICSID amicus case -the Bechtel case- until today, the rights, interests at stake…
