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Cart Before the Horse: Can MFN Clauses Expand the Key Definitions in Investment Treaties?

The debate regarding the extent to which most favoured nation (‘MFN’) clauses in bilateral investment treaties (‘BITs’) can expand the scope of application of such treaties is a well-established and evolving dialogue in investment treaty jurisprudence. However, while the issues around the extension of substantive and procedural protections in BITs have received considerable attention, the nuance around whether MFN clauses can expand the scope of application of BITs has been less closely examined.

MFN clauses are typically invoked in order to import a more favourable substantive protection, such as a broader definition of ‘expropriation’ or ‘compensation’, or more favourable p [...]

The Problem of Repeat Arbitrators in Investment Arbitration

The very nature of an arbitrator requires that she or he be imbued with the principles of independence and impartiality, qualities that should never be doubted. Nonetheless, there has recently been an increased number of challenges to arbitrators in Investment Arbitrations subject to the procedures of the International Centre for Settlement of Investment Disputes (the “ICSID”). There is a strong view that the ICSID arbitrators appear to be earning an unfortunate reputation as lacking in the aforementioned independence and impartiality due to, for example, multiple appointments by the same parties or counsel who happen to be called upon to resolve similar disputes or issues at the ICSID. [...]

Key Changes in the LCIA’s new Arbitration Rules

The London Court of International Arbitration (LCIA) has recently adopted a new set of arbitration rules, which will come into effect on 1 October 2014.The new rules aim to ensure an effective, efficient and fair process. The LCIA reports that its new Director General, Dr Jacomijn van Haersolte-van Hof, thanked those who contributed to ‘the meticulous and thoughtful drafting process, which has led to a balanced set of Rules.’ This piece will discuss some of the main changes introduced by the new rules.

Emergency Arbitrator

The new rules provide that in case of emergency, a party can apply for the appointment of a temporary sole arbitrator in advance of the formation of the tribunal. Spec [...]

Women in Arbitration in Brazil

By Ana Carolina Weber 1 and Eleonora Coelho 2

The views expressed in this article are those of the authors alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the authors’ respective law firms.

The development of arbitration in Brazil has been accelerated in recent years. In fact, although the Brazilian Arbitration Act was enacted in 1996, only five years later the Brazilian Constitutional Court (the “Supremo Tribunal Federal”) recognized the constitutionality of the law and ratified the understanding that any disposable right could be the object of arbitration.

But it was not until 2002 that Brazil ratified the New York Convention on the Recogniti [...]

The “Anti-ISDS Bill” before the Australian Senate

Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration). India announced a review in 2013, partly in the wake of the successful claim from an Australian mining investor, although the impact in practice is hard to discern or predict – especially under the new Modi government. In both countries, the reviews may also have been linked to domestic politics during election years.

More surprisingly, public debate over ISDS has resurfaced in Australia. For the political left, it really began when Philip Morris Asia announced in 2010 that it would claim under a 1992 treaty with Ho [...]

The Singapore Approach to Allegations of Awards Infra Petita – BLC and Ors v. BLB and Anor [2014] SGCA 40

In further nod to the non-interventionist and pro-arbitration stance of the Singapore courts, the Singapore Court of Appeal in BLC and ors v. BLB and anor [2014] SGCA 40 (“the BLC decision“) reversed the decision of the High Court to set aside part of an arbitration award (“Award“) on the ground of a breach of natural justice. The court also provided valuable guidance on Articles 33(3) and 34(4) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law“).

Background facts

The dispute arose out of an unsuccessful joint venture between the parties. The appellants commenced arbitration against the respondents alleging that they had breached several agreements, in particula [...]

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