Major New Development in Argentine Crisis Case at ICSID
Earlier today, an ad-hoc annulment committee at the International Centre for Settlement of Investment Disputes (ICSID) completely annulled a 2007 arbitral award that had been rendered in favour of US energy company, Sempra Energy International.
The striking development serves to nullify a US $128 Million (plus interest) award wherein a panel of ICSID arbitrators had found Argentina to have breached the terms of the US-Argentina bilateral investment treaty in the course of its handling of a financial crisis earlier this decade.
The ICSID’s review committee held that arbitrators had failed to apply an Article of the US-Argentina BIT upon which Argentina had pegged its defence of emergency or n [...]
Brazilian Courts and Arbitration: Injunction in Review
Less than two weeks before arbitration practitioners’ eyes turned to Rio de Janeiro for the ICCA Congress 2010, a court from that same jurisdiction rendered a decision improving case law on important matters related to arbitration.
On May 12th, 2010, the Tribunal de Justiça do Estado de Rio de Janeiro (which is similar to a Court of Appeals) rendered a decision on the timing and admissibility of urgent measures before Brazilian courts. In Durval Biancalana da Silva e outros vs. DTP Participações e Investimentos S/A e outros the dispute arose from a quota purchase agreement containing an institutional arbitration clause providing for the administration by CCBC – Centro de Arbitragem e Me [...]
20 Years of Investment Treaty Jurisprudence
27 June 2010 marks the 20th anniversary of investment treaty jurisprudence. On 27 June 1990, the tribunal in Asian Agricultural Products Ltd. v. Sri Lanka (ICSID Case No. ARB/87/3) (AAPL) dispatched its final award to the parties. The AAPL tribunal (Dr. Ahmed Sadek El-Kosheri (President), Professor Berthold Goldman and Dr. Samuel Asante) was the first to be “seized by an arbitration request exclusively based on a treaty provision and not in implementation of a freely negotiated arbitration agreement directly concluded between the Parties…” (para. 18, Final Award). This despite the fact that “arbitration without privity” had been available under investment treaties since at le [...]
Oklahoma’s “Save Our State Amendment” and Related Legislative Developments in the United States
Recent legislative developments in Oklahoma, and a few other U.S. states, reflect a growing mistrust of international and foreign law and legal systems. These proposed statutes and constitutional amendments are one aspect of parochial backlash in the United States and elsewhere against developments in international law and dispute resolution over the past decades. There are substantial doubts about the constitutionality of these legislative proposals under the U.S. Constitution, but they may prove to be the source of substantial mischief. For the moment, these legislative developments are more in the nature of eccentric curiosities than anything else. They nonetheless warrant careful mon [...]
Will U.S. Lack of Consensus on Investment Protection Slow the TPP Negotiations?
By the end of the second round of negotiations on the Trans-Pacific Partnership (TPP) in San Francisco June 14-18 some observers were concerned that the lack of inter-agency consensus on the protection of foreign investment risks slowing the negotiation of investment issues in the TPP context. If there is no internal U.S. agreement by the next round of TPP negotiations in October in Brunei, when draft texts are to be tabled, the tentative November 2011 completion date for the negotiations (when the United States is scheduled to host the annual APEC summit) could become problematic. (See Amy Tsui, “Negotiators Discus How to Start Drafting Texts for Next Round of TPP Talks in October,” In [...]
The Impact of Stolt-Nielsen on Drafting Arbitration Clauses
- By Paul Friedland, White & Case LLP,
for White & Case
The United States’ Supreme Court opinion in Stolt-Nielsen S.A. v. Animalfeeds International Corp. has already been the focus of much discussion in both U.S. and international arbitration circles. One area of interest for arbitration practitioners is the impact which the decision may or should have on how drafters of arbitration clauses should address the issue of class action arbitrations.
Stolt-Nielsen involved an arbitration brought in New York by AnimalFeeds against Stolt-Nielsen, a commercial shipping company, after Stolt-Nielsen had been subject to a U.S. Department of Justice criminal investigation involving charges of illegal price-fixing. The arbitration was brought pursuant to a [...]
