10 Investor-State Awards I Hope to Read in 2010
Handicapping investor-state arbitration cases is a tough business. Indeed, it’s difficult to predict when decisions will come down – much less what they will say.
The following somewhat-hastily-cobbled-together list constitutes my best guess as to the 10 most notable awards which may come down in 2010. I won’t hazard a guess as to what’s in these rulings.
Happy New Years to all readers of this blog.
Suez, Anglian Water Group, Agbar, Vivendi et.al. v. Argentina
It hasn’t been 15 years, so we aren’t in Chinese Democracy territory yet. But, the wait for the arbitral awards in these ICSID cases is starting to feel as protracted as that for the long-promised Guns n Roses alb [...]
“Surgical” Nationalization and its Complications
As a political slogan, re-Belizeanization was supposed to have a brief shelf life.
When the Government of Belize announced last August the “re-Belizeanization” of the tiny Central American country’s dominant telecommunications company, Belize Telemedia Limited, the government disavowed any intention to embark upon a broader programme of economic nationalization.
“It is not part of any pattern, part of no new philosophy,” Prime Minister Dean Barrow told parliament, “It is plain and simple a special measure for a special case.”
Not only was the government targeting a single company in the telecoms sector, it was excising only the 94% shareholding allegedly controlled by the Brit [...]
Difficulties Enforcing New York Convention Awards in the U.S. Against Non-U.S. Defendants: Is the Culprit Jurisprudence on Jurisdiction, the Three-Year Time Bar in the Federal Arbitration Act, or Both?
- By Ank A. Santens, White & Case LLP,
for White & Case
The emerging rule in the U.S. that, to recognize and enforce an arbitral award under the New York Convention, a U.S. court must have personal jurisdiction over the award debtor or his or her property in the forum, has attracted criticism. International arbitration specialists argue that this requirement restricts enforcement of valid arbitral awards in the U.S., in violation of the New York Convention. Upon reflection, the enforcement difficulty has perhaps more to do with the fact that the U.S. Federal Arbitration Act imposes a three-year statute of limitations on actions to recognize and enforce New York Convention awards.
U.S. courts have interpreted the Due Process Clause o [...]
Agency as a mechanism for compelling a non-signatory to join arbitral proceedings
Agency as a mechanism for compelling a non-signatory to join arbitral proceedings
By Hanna Roos for YIAG
International investors, and those who advise them, continue to be vexed by the question of when a non-signatory, such as a sovereign state, can be compelled to join arbitral proceedings.
A typical scenario involves a private investor who has entered into an arbitration agreement with a wholly state-owned entity, but seeks to join the state into the proceedings. This is particularly common in the field of energy and infrastructure projects, where the investor may anticipate difficulties in enforcing any award against the state entity alone if the entity’s assets are transferred away or [...]
Another Reason to be Jolly…
In the spirit of spreading some festive cheer, I wanted to share with you what has been going on behind the scenes with Kluwer Arbitration this year. What an exciting year it has been. Following extensive customer research with users towards the end of 2008, a development plan was put in place by Kluwer Law International to launch a significantly revised and enhanced service. Work has been carrying on behind the scenes all year – in conjunction with our team of key users, whom have greatly assisted the development by testing the service at regular intervals – and the result, a drastically improved service.
The ‘facelift’ has given Kluwer Arbitration a fresher and more up-to-d [...]
Hard Reset Vs. Soft Reset: Recalibration Of Investment Disciplines Under Free Trade Agreements
When mapping the present trajectory of investment treaties, common themes include the “rebalancing” or “recalibration” of substantive disciplines, concepts that signal a retreat from the high-water mark of investor protection and a reorientation towards the preservation of regulatory space for host states. Generally, this phenomenon takes two forms: preparation of new model treaties (the prospective approach) and the denunciation of treaties in force (the retrospective approach). Assuming the desirability of change, the prospective and retrospective approaches provide effective tools for the adjustment of substantive disciplines imposed by bilateral investment treaties (BITs). As exp [...]
