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Transparency as a Global Norm in International Investment Law

Transparency is one of the hot topics in international law. With governance functions increasingly shifting from the domestic to the international level, transparency is demanded, as Andrea Bianchi and Anne Peters show in their new seminal study, in order to compensate for the lack of a full-fledged international system of checks and balances. Transparency promises a more accountable, more democratic and hence more legitimate system of global governance. International investment law cannot escape from this general drift. As I noted in my Editorial for the latest issue of the Journal or World Investment and Trade (JWIT), secrecy in treaty negotiations and confidentiality in dispute settlement [...]

Precision and Legitimacy in International Arbitration: Empirical Insights from ICCA

This past April, the International Council for Commercial Arbitration (ICCA) held its prestigious biennial conference in Miami, with more than 1,000 people in attendance. Our research team received unprecedented access to collect demographic information and administer a survey. The results offer an unprecedented window into the “invisible college” of the international commercial and investment arbitration community. As data about the world of international commercial arbitration is notoriously difficult to obtain given doctrinal obligations of confidentiality, the data offers a particularly critical baseline for assessment and comparison.

Our research sought to use empirical methods to [...]

Answers to the Summer Quiz 2014

With hopes that those in the northern hemisphere had a fun summer packed with arbitration-related events for themselves and their families, below are the answers to this year’s summer quiz. The answer keys to the crossword and the word hunt were published in August.

While a Ph.d is not required to read the Kluwer arbitration blog, the winner of the dinner in Florence (for speed and accuracy of answers) went to Barbara Warwas, who is based in the UK and recently obtained her doctorate in international arbitration. Coming in at a close second was Phil Ray, a dispute resolution specialist (and retired Siemens in-house counsel) in Germany.

Congratulations to both Barbara and Phil!

Summer 2014 [...]

Untying the Knot: Estoppel and Implicit Designation of a Constituent Subdivision or Agency under the ICSID Convention

and Oleg Temnikov


Designation by a State of a constituent subdivision or agency provided for in Article 25, paragraphs 1 and 3, of the ICSID Convention has recently sparked a debate particularly in terms of the manner in which the designation is made and communicated to the Center.

This is the subject of the present post.

I. Meaning of “constituent subdivision or agency of a Contracting State”

Past tribunals have noted that “the term ‘constituent subdivisions’ covers a fair range of subdivisions including municipalities, local government bodies in unitary states, semi-autonomous dependencies, provinces or federated States in non-unitary States and the local government bo [...]

Interim Measures and Anti-Arbitration Injunctions in Brazil: Answering the Actual Question at Issue

Recently, the Kluwer Arbitration Blog published a post regarding the ongoing saga between the The Clorox Company and the Petroplus Companies. That post sought to answer two general questions: 1) the power of international arbitrators to overturn interim measures granted by Brazilian courts, and 2) the power of Brazilian courts to stay international arbitrations. While both of those questions are interesting, neither of them is actually at issue in Petroplus Sul Comércio Exterior S.A., et al. v. First Brands do Brasil Ltda., et al. (the “Campo Grande Case”). In fact, as the article hints, the story has many more chapters that answer far more unique questions. Specifically, does a second [...]

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 [...]

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