Additional Facility Rules, ICSID, International Investment Arbitration, Jurisdiction, Most Favoured Nation (MFN)

(Coz & Blavi)/ /Leave a comment

Introduction On November 2021, an Arbitral Tribunal issued the award in an investment arbitration case commenced by three subsidiaries of Kimberly-Clark against Venezuela. The claims where brought under the BITs between Venezuela and the Netherlands (Dutch BIT), Venezuela and Spain (Spanish BIT), and Venezuela and Belgium (Belgium BIT). The award, which is highly case-specific, established…

2021 in Review, Anti-arbitration Injunction, arbitration rules, Confidentiality, Investor-State arbitration, Malaysia, Maritime Arbitration, Regional Comprehensive Economic Partnership, Set aside an arbitral award, Singapore, Singapore International Arbitration Centre, Vietnam

(Clifford Chance Asia) and , / /1 Comment

In 2021, Southeast Asia saw institutional progress, arbitration-related court decisions, and investment treaty developments. All in all, it was an eventful and, at times, surprising year for the region in terms of arbitration developments.   Institutional progress Some Southeast Asian arbitral institutions revamped and revised their arbitration rules as part of their strategic institutional development….

Investment Arbitration, Third party funding, UNCITRAL, VIAC, Working Group III

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In early 2021, we wrote a post on this blog welcoming the inclusion of specific provisions on third-party funding (TPF) in the 2021 ICC Arbitration Rules. Recent regulatory developments in TPF in investor-State dispute settlement (ISDS), including publication of the VIAC Rules of Investment Arbitration and Mediation (VIAC Investment Arbitration Rules), have enticed us to…

Arbitration institution, Arbitration Proceedings, arbitration rules, Innovation, Latin America, Paraguay

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On November 12, 2021, the new arbitration rules (the “2021 Rules”) of Paraguayan Arbitration and Mediation Center (“CAMP” for its acronym in Spanish) –the main arbitration institution in Paraguay –came into effect. The 2021 Rules include new developments that modernize CAMP’s practice, especially with regards to international arbitration. In other cases, the new provisions reflect…

Arbitration, DIAC, DIFC, Dubai, MENA

(Blanke Arbitration LLC)/ /Leave a comment

The recent adoption of Decree No. 34/2021 (see Dubai Government Decree No. 34 of 2021, which entered into force with effect from 20 September 2021) provides for the consolidation of local arbitration centers into a single institution, the Dubai International Arbitration Centre 2.0 (DIAC 2.0). Some perspectives on Decree No. 34/2021 have already been shared…

BIT, Counterclaims, ICSID, ICSID Amendments, ICSID Arbitration, ICSID Convention, ICSID Proceedings, International arbitration, Investment Arbitration, Investment law, ISDS, ISDS Reform, Third party funding

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On January 20, 2022, ICSID submitted its amended rules to the Administrative Council for a vote, marking the end of the five-year-old process of modernizing the ICSID Rules. ICSID members are expected to cast a vote on the amended rules by March 21, 2022, and if approved, the rules will enter into force on July…

2021 in Review, AfCFTA, AfCFTA Investment Protocol, Africa

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2021 was significant for Africa with respect to the African Continental Free Trade Area (‘AfCFTA’) and the Agreement establishing it. The aftermath of the COVID-19 pandemic generated a global economic crisis at a very critical phase of the AfCFTA and resulted in a delay in its implementation. This post seeks to place into perspective the…

Costs, Costs in arbitral proceedings, Third party funding

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

The recent English Commercial Court decision in Tenke Fungurume Mining SA v Katanga Contracting Services SAS [2021] EWHC 3301 (Comm) has provided an interesting further comment on the broad discretion available to tribunals in English-seated arbitrations to award the costs of third party funding as part of costs awards. The decision by Mrs Justice Moulder…

Appeal, Canada, Set aside an arbitral award, UNCITRAL Model Law

(Norton Rose Fulbright Canada LLP)/ /1 Comment

In the legal world, countless hours are spent choosing, weighing and defining words, expressions and phrases, and linguistic precision is instilled as a virtue from the first day of law school. It is therefore rather concerning when courts use both inaccurate and inapt language to address a specific issue, such as when Canadian courts consider…

Achmea, CJEU, Intra-EU BITs, Intra-EU ISDS, Investment Arbitration, Micula

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In its judgment rendered today, the Court of Justice has quashed the General Court’s decision having ruled that the European Commission was not competent ratione temporis to assess whether the compensation paid by Romania to the Micula brothers, in implementation of a 2013 ICSID award rendered under the 2002 Sweden-Romania BIT, was constitutive of state…

2021 in Review, Achmea, ECJ, Energy Charter Treaty, EU Law, Europe, European Union, Micula, Multilateral Investment Court

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Looking back on 2021, one realizes that for those interested in the intersection between EU law and investment arbitration, it was a busy year. As part of our customary “year-in-review” series, this post offers a brief overview of the key investment arbitration-related developments in Europe and their coverage on the Blog. I have grouped these…

Arbitration, Climate change, COP 26, Sustainability, Sustainable economy

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As the climate crisis has intensified, much has been said about the roles that arbitration can play in the collective global response – including during the recent BVI Arbitration Week, which coincided with the Glasgow climate conference. Arbitration has been utilised as a tool for resolving disputes as market mechanisms have developed to deliver greenhouse…

Anti-suit injunction, Arbitration Agreement, Russia, Sanctions

(Enyo Law LLP)/ /Leave a comment

As previously reported, in mid-2020, changes were enacted to the Russian Arbitrazh (Commercial) Procedure Code (“APC”) to establish the exclusive jurisdiction of Russian Arbitrazh courts over cases where a Russian party is subject to sanctions or where the dispute has arisen out of sanctions. This triggered concerns that sanctioned Russian parties would be able to…

Enforcement, Independence and Impartiality, Interim measures, Italian law, Italy

(Cleary Gottlieb), (Cleary Gottlieb Steen & Hamilton LLP), and (Bocconi University)/ /Leave a comment

As part of the complex set of reforms that Italy presented to the EU institutions to access the Next Generation EU program, the Italian Parliament recently approved Law No. 206/2021 (“Law 206”). Among other things, Law 206: (i) establishes “principles and directions” aimed at enhancing the “efficiency of civil proceedings and amending the rules concerning”…

2021 in Review, Arbitration Act, Arbitration Agreement, Arbitration institution, Cryptocurrency, HK Arbitration Week, Interim measures, ISDS, kompetenz-kompetenz, Legislative amendment, Multi-tiered clauses, PRC, Treaty

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In 2021, East and Central Asia witnessed some noteworthy developments in domestic legislation, jurisprudence, and efforts to enhance the standing of arbitral institutions and seats in the region. There have also been developments in trade/investment agreements and investor-State claims in the region. In this post, our East and Central Asian editorial team reviews this progress…

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(Georgetown Law) and (Columbia Law School)/ /Leave a comment

This is the third consecutive year that we, either together or separately, have reported on trends at the intersection of human rights and international arbitration from the prior year (see prior Blog coverage here and here). As we emphasized last year, the effects of the COVID-19 pandemic on this intersection are likely to remain a…

Arbitration, California, California, UNCITRAL, UNCITRAL Model Law, United States, USA

(Gary Benton Arbitration) and (Musick, Peeler & Garrett LLP)/ /Leave a comment

“If they can’t do it in California, it can’t be done anywhere.”  – Novelist Taylor Caldwell   From its sunlit beaches to its fog-spangled hills, California hosts the world’s fifth largest economy, boasting among its accomplishments Hollywood entertainment, Silicon Valley technology, and Central Valley agricultural produce. In addition to its strong trade ties within the…

2021 in Review, Arbitration Institutions and Rules, Argentina, Brazil, Colombia, Conflicts of interest, Ecuador, Enforcement, Latin America

(Herbert Smith Freehills)/ /Leave a comment

In 2021, Latin American countries continued to struggle with the adverse effects of the COVID-19 pandemic.  Accordingly, legislative and jurisprudential developments on arbitration-related issues were also affected given that the governments were focused on reactivating local economies, vaccinating their citizens, and launching tax and labor reforms.  In addition, presidential elections also marked political shifts for…

New York Convention, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, United Arab Emirates

(Al Owais Advocates & Legal Consultants)/ /Leave a comment

The United Arab Emirates (“UAE”) adhered to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention (“New York Convention”) in 2006. Joining the New York Convention was done through Federal Decree No. 43 of  2006. This post examines how the New York Convention has been implemented…

2021 in Review, Australia, New Zealand, Pacific Islands

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Last year saw positive movements in Australia, New Zealand and the Pacific Islands to better promote the use of arbitration in the region. Arbitral institution rules were modernised and domestic legal frameworks were introduced all to stimulate arbitration activity. The year also saw a sharp focus on the benefits of empirical studies to understand how…

ECT Modernisation, Energy Charter Treaty, EU Law, EU Permanent Court, Regime Interaction, Regime Interaction in Investment Arbitration

(NL-Investmentconsulting)/ /Leave a comment

Once upon a time, not so long ago, the two legal orders of on the one hand, international investment law (i.e., International Investment Agreements (IIAs) and investor-State arbitration provisions (ISDS)), and on the other hand, EU law, were peacefully co-existing next to each other with only occasional contact. Indeed, it was the time when the…

Arbitration Awards, International arbitration, Interpretation, Investment Arbitration, Regime Interaction, Regime Interaction in Investment Arbitration, Treaty Interpretation, VCLT

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

In 2011, in an article titled ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’, Professor Stephan Schill reflected on the prior decade of scholarly and practical developments in international investment law (IIL). He referred to the boom in specialised scholarship and the more than 400 investor-State disputes then in existence as reasons…

Arbitration Institutions and Rules, Human Rights, International arbitration, Investment Arbitration, Regime Interaction, Regime Interaction in Investment Arbitration

(Columbia Law School) and (Georgetown Law)/ /1 Comment

Globalization has diversified the actors, institutions, norms, and instruments on the international legal stage. With diversification comes increased specialization and, in turn, organization around so-called regimes. The notion that international legal regimes can exist autonomously has long been refuted; indeed, each regime draws from general international law to some degree. If regimes are not autonomous,…

Arbitration, BIT, Climate change, Environment, International arbitration, Investment Arbitration, Reform, Regime Interaction, Regime Interaction in Investment Arbitration

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Nearly 30 years have passed since world leaders signed the UN Framework Convention on Climate Change (“UNFCCC”), agreeing to combat “dangerous human interference with the climate system.” For many of those years, nobody seemed to take that commitment very seriously. But things look different now: climate law has hit its stride. At COP26 in November…