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The Compensation Standard for FET Breaches: The Far Limits of Legal Analogy

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 of breach initially attracted a customary international law approach (as the Treaty remained silent on such issues), it gradually evolved in a ‘positivist’ manner, strictly reflected and comprised in the invoked Treaty.

This only became possible in the aftermath of the 20th century legal dilemma regarding the amp [...]

Ruler appoints new Chairman of DIAC Board of Trustees

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, which entered into a historic merger with one of the world’s largest law firms, Baker & McKenzie, in 2013, as Chairman of the Board of Trustees of the Dubai International Arbitration Center (DIAC).

Since its foundation in 2004, the DIAC has grown into one of the leading arbitration institutions in the United Arab Emirates (UAE) and the wider Middle East. Amongst its former Chairmen a [...]

A Guide to the IBA’s Revised Guidelines on Conflicts of Interest

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 to one of the parties, operate from the same chambers. The Guidelines are widely consulted when arbitrators evaluate whether they can accept appointments, or if they first need to make disclosures to the parties about potential conflicts. This article outlines the key changes in the revised Guidelines.

Structure [...]

EU Law and Investment Law: Two Worlds Apart?

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 investment policy.

The conference was kicked off by the first panel which immediately dived into the fundamentals, namely, the pros and cons of the existing investor-state dispute settlement system (ISDS). The range of the critique was broad spanning from essentially leaving it to arbitral tribunals to find the right balance, over possi [...]

Are a Bilateral Investment Treaty Arbitration and a Proceeding Before the European Court of Human Rights Compatible?

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 shows that a strict application of the triple identity test (i.e. same parties, same facts, same cause of action) by the arbitral tribunals and the Court generally entails the rejection of lis pendens or admissibility objections based on BITs’ “fork in the road” provisions or Article 35, §2, b) of the Convention, which provides that the Court [...]

More Than a Friend of the Court: The Evolving Role of the European Commission in Investor-State Arbitration

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 and role of the amici have evolved.

Initially, NGOs and indigenous communities were the ones filing amicus briefs asserting impartiality in the outcome of the dispute and humanitarian concerns. However, the European Commission (EC) has recently readopted an active and ambitious role in investment arbitration, analyzing the relationship between intra-EU invest [...]

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