2022 in Review, ECT Modernisation, Energy Charter Treaty, ICSID, ICSID Amendments, ICSID Arbitration, ISDS Reform, UNCITRAL

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2022 was strongly marked by the change and reform of institutions, treaties, and procedural rules relevant to investor-State dispute settlement (ISDS). This post summarizes the most important institutional and structural reforms that were progressed during 2022 in relation to investment treaty law and ISDS. The focus is on the various reforms pursued under in the…

Aviation, Commercial Arbitration, WTO

(AFALEGAL S.C.)/ /Leave a comment

According to Aviation: Benefits Beyond Borders, statistics from 2018-2020 demonstrate that the general aviation industry supports 87.7 million jobs worldwide and contributes around US$ 3.5 trillion a year to the global GDP (equivalent to 4.1% of global GDP). In parallel, the general aviation industry is increasingly turning to international arbitration. One clear manifestation of this…

2022 in Review, Environment, ESG, Human Rights, International environmental disputes, International Investment Law, OECD, Paris Agreement

(University of Bristol) and (University of Wollongong)/ /Leave a comment

2022 was arguably the year when climate change entered the mainstream of policymaking in the investment treaty regime, with a particular focus on aligning the regime with international climate commitments, most notably the Paris Agreement. Nevertheless, debates over the interaction between the investment treaty regime and climate mitigation efforts have been active for around 15…

Africa, Africa Arbitration Academy, Investment law, Model BIT, Sustainability

(DC Mediation & Dispute Resolution Institute)/ /Leave a comment

In July 2022, the African Arbitration Academy launched the Model Bilateral Investment Treaty for African States (‘Model BIT’) with the goal of it serving as a source of cohesion for African States’ Investor-State Dispute Settlement (‘ISDS’) reform strategy. They also expect the Model BIT will promote the codification of Investment Policies and Laws for African…

Enforcement of an award that was set aside, Intra-EU Investment Arbitration, Intra-EU ISDS, New York Convention

(Linklaters LLP; Erasmus University)/ /Leave a comment

The last decade was not easy for investment arbitration in general, but it faced particular difficulties within the European Union (‘EU’). In recent years, the European Commission has pursued (with success) eradication of this form of international dispute settlement mechanism between foreign investors from one EU Member State and an EU Member State (host state),…

Teaching International Investment Arbitration Series

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Institute for Transnational Arbitration (ITA)

Geography, culture, politics, economic conditions, and population demographics, in my view, account for very different narratives and reactions to the teaching of international investment arbitration.  In the last 13 years, I have had the distinct experience of in-person and/or virtual teaching of a course and/or guest lecturing international investment arbitration in a wide range of…

Arbitrators, Independence, Independence and Impartiality

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Institute for Transnational Arbitration (ITA)

The International Academy of Comparative Law (IACL) held its XXI General Congress in October 2022. The topic of one of the sessions was Impartiality and Independence of International Adjudicators. The purpose of the work was to assess criteria, mechanisms and remedies applied in the various legal systems (including international courts and arbitration) to ensure the…

2022 in Review, Employment arbitration, Section 1782 Discovery, United States, United States Courts

, (Freshfields Bruckhaus Deringer US LLP)/ /Leave a comment

2022 was a busy year for the United States Supreme Court’s arbitration docket. The Court spent significant time defining the role of federal courts in arbitration-related litigation: it curbed Section 1782 discovery in support of international arbitration, limited the preferential treatment given to arbitration over litigation, protected the right to individualized arbitration, and limited the…

2022 in Review, Investment Disputes, Investor-State arbitration, ISDS, Latin America

(Herbert Smith Freehills), (BakerHostetler), and (Barbosa, Müssnich & Aragão Advogados – BMA)/ /Leave a comment

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…

Diversity, Secretary of the Arbitral Tribunal, Sweden, Third party funding, Young Arbitration

(SCC Arbitration Institute) and , (Hannes Snellman)/ /Leave a comment

It was St Martin’s Eve on 10 November 2022, a day also known in Sweden as “Martin’s goose” (Sw. Mårtensgås). As the Swedish name suggests, the St Martin’s Eve custom involves a three-course goose dinner in which all parts of the goose are used and finished with apple cake. It is particularly popular in Scania…

Arbitration institution, ICC, ICC Arbitration

(ICC Court of Arbitration)/ /Leave a comment

This year marks a full century since the ICC Court was established in 1923.  Yesterday, I was joined by ICC Secretary General John W. H. Denton AO, ICC Court Secretary General Alexander G. Fessas, and ICC Managing Counsel Ziva Filipic, in a global, on-line launch of our centenary celebration. The ICC Court was created with…

Russia, Sanctions, UK

, , (Herbert Smith Freehills LLP)/ /Leave a comment

Russia’s invasion of Ukraine has created an environment ripe for controversy and disputes, some of which may be resolved in arbitration. International sanctions against Russia have been previously discussed on the Blog from the perspective of the EU (here and here), the US (see here) and in relation to potential investment claims (in particular under…

Africa, Climate change, COVID-19, Empirical Research, Surveys

(Dr. Kamal Hossain and Associates)/ /Leave a comment

The results of two surveys on arbitration in Africa-related disputes were released in 2022. Both surveys drew responses from the continent’s diverse regions and legal systems. Respondents were given the choice to answer questions in either English, French, Arabic, or Portuguese. In April 2022, the African Arbitration Academy released its Survey on Costs and Disputes…

2022 in Review, Ukraine

, (Hogan Lovells)/ /Leave a comment

On 24 February 2022, people in Ukraine woke up at approximately the same time. There was no coffee or kisses from the loved ones. There were explosions. Bombs being dropped on heads of Ukrainians. Missiles destroying Ukrainian cities and taking people’s lives. Each Ukrainian will always remember his or her “Wake up, the War has…

ITA Arbitration Report

(Notre Dame Law School), (Stockholm University), and / /Leave a comment

The Institute of Transnational Arbitration (ITA), in collaboration with the ITA Board of Reporters, is happy to inform you that the latest ITA Arbitration Report was published: a free email subscription service available at KluwerArbitration.com delivering timely reports on awards, cases, legislation and current developments from over 60 countries and 12 institutions. To get your free subscription to the ITA…

Teaching International Investment Arbitration Series

(Australian National University)/ /1 Comment

Kluwer Arbitration Blog is pleased to launch with this post an occasional series offering global perspectives on approaches to teaching international investment arbitration. The aim of the series is to illuminate the various choices that teachers must make when determining the substance, aims and approach they will adopt to teaching this topic, and the challenges…

Yearbook Commercial Arbitration

(General Editor, ICCA Publications; Amsterdam Center for International Law, University of Amsterdam)/ /Leave a comment

The 2022 volume of the Yearbook Commercial Arbitration is now available in print, as well as online in the KluwerArbitration database. It contains 16 so far unpublished arbitral awards and 97 court decisions that apply the 1958 New York Convention, the 1965 Washington (ICSID) Convention, and the 1975 Panama (Inter-American) Convention, or address issues of…

Bias, Diversity, Language of arbitration

(Columbia Law School) and (Costigan King)/ /1 Comment

Civilization is a progress from an indefinite, incoherent homogeneity toward a definite, coherent heterogeneity. Henry Spencer   International arbitration professionals are a strikingly homogenous population, as our recent 360 degree overview demonstrated. The demographic markers typically used to arrive at this conclusion are age, race, gender and national origin. While these fundamental indicators merit continued…

Diversity, Investment Arbitration, Investment Disputes, Multilateral Investment Court

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A study published in 2012 revealed that only 15 arbitrators decided 55% of the 450 investor-State dispute settlement (ISDS) cases reported at that time, most of them practitioners from Europe, USA or Canada. This was the case despite the fact that parties from all over the world were involved in those proceedings. To date, according…

Africa, Appeal, Arbitration Award, Ethiopia, Finality Clause

(Bahir Dar University)/ /Leave a comment

Almost 4 years ago, Kluwer Arbitration Blog published an article titled “The Fate of Finality Clause in Ethiopia” by Mintewab Afework, which clearly examined the parties’ prerogative to submit their disputes to arbitration and to waive their right of appeal on the final arbitral award, as applicable at the time. After 4 years, two significant…

BIT, Consent, Fair and Equitable Treatment, ICSID Convention, Most Favoured Nation (MFN)

(Geneva Centre for International Dispute Settlement)/ /1 Comment
Institute for Transnational Arbitration (ITA)

When it comes to consent to the jurisdiction of international courts and tribunals, its understanding and interpretation raise a fundamental question – do we really know what it means? In this blog post, it will be demonstrated that there are a number of uncertainties around the notion of consent in investment arbitration. The theoretical underpinnings…

Due process, Section 1782 Discovery, Uncategorized, United States, United States Courts

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28 U.S.C. § 1782(a) allows U.S. federal district courts to order discovery against any person or entity “found” in the U.S. “for use” in a proceeding in a “foreign or international tribunal” upon application by “any interested person.”  In 2004, the U.S. Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. held that the…

2022 in Review, Argentina, Brazil, Chile, Colombia, Mexico, Peru

(Herbert Smith Freehills), (Barbosa, Müssnich & Aragão Advogados – BMA), and (BakerHostetler)/ /Leave a comment

After struggling with the adverse effects of the COVID-19 pandemic, 2022 remained a period of transition for Latin America.  New arbitration rules and protocols were adopted in jurisdictions such as Ecuador, Brazil and Mexico that reflected best practices born out of the limitations placed on arbitrations by the pandemic.  Other jurisdictions such as Colombia, Chile…

2022 in Review, Admissibility, Alternative fee arrangements, Arbitration Institutions and Rules, Cambodia, Enforcement, Jurisdiction, Malaysia, Philippines, Singapore, Thailand, Vietnam

(Clifford Chance Asia) and / /Leave a comment

The year 2022 seems to have passed in a flash, but not without bringing some exciting developments for the arbitration scene in Southeast Asia. From the Southeast Asia editorial team, here are some of the past year’s highlights.   Developments in the law and jurisprudence Contributors to the Kluwer Arbitration Blog critically analysed the Singapore…