The European Commission’s Opposition To Intra-EU BITs And Its Impact On Investment Arbitration
The growing success of investment arbitration may collide with the European Commission’s attitude towards intra-EU BITs, as shown recently by a development reported in August 2010 (the IA Reporter, August 5, 2010, Vol. 3, No. 12) regarding the Eureko v. Slovakia arbitration. In this case, Eureko initiated a claim against the Slovak Republic based on the Netherlands-Slovakia BIT. In the jurisdictional phase of the proceedings, the arbitral tribunal invited the Commission to provide its observations on the claim. In its response, as reported by the IA Reporter, the Commission cast “serious doubts” on the jurisdiction of the tribunal to hear a claim based on an intra-EU BIT.
This deve [...]
Quiet Evolution
“To the rest of the world, the English legal profession is a very strange species indeed” (Berlins and Dyer, The Law Machine)
As autumn, season of mists, beckons there is, in London at least, a sense of the legal profession going ‘back to school’.
During the summer, many firms will, like my own, have run some form of vacation scheme for university students. This opportunity to spend a few weeks in the thick of it provides would-be lawyers with an opportunity to test the water. Those of us who signed up some time ago benefit from hearing at first-hand the preoccupations and expectations of the next generation.
Over the years, I have had numerous conversations with students about a [...]
Status of the Work of UNCITRAL’s Working Group II
- By J. Martin Hunter, Essex Court Chambers,
for ITA
The sense of relief enjoyed by NGO observers and other followers that UNCITRAL Working Group II’s Arbitration Rules revision project was finally completed in the Summer of 2010, after seemingly endless debate, has been diminished to some extent by the publication of the agenda for the next WGII meeting, to be held in Vienna in October 2010, which puts back on the table the difficult question of ‘transparency’ in investment treaty arbitrations.
Confidentiality has long been perceived as an implied term in international arbitration. This was seen to follow from the privacy of arbitral proceedings. The current trend, however, is to question this proposition. This is particularly the case in inv [...]
Is the System Working: What Lessons Can Be Learned From A Canadian Trilogy Of Investor Claims (AbitibiBowater, Chemtura, First Quantum Minerals)?
Three different investors, with three different claims, in three different situations, have recently been in the news. All three disputes have a Canadian connection. Two involved claims by foreign investors against Canada, one that settled and one that Canada defeated. The third involves a claim by a Canadian investor against the Democratic Republic of Congo.
Among the lessons learned from these three claims are that good investment treaty protection really is important to foreign investors; where investment protection is in place, it can be shown to be doing its job; and where it is not in place the investor can be in a difficult position if problems arise with the host state.
The outc [...]
Impartial: Yes. Neutral: Maybe Not
In arbitration, as in other aspects of business life, parties often feel most comfortable when they are (literally) on familiar ground. If things go wrong, a European or American company might understandably prefer arbitration seated in Europe or New York. On the other hand, parties from the PRC, for example, are increasingly, and equally understandably, inclined to resist arbitration outside Asia (and sometimes even mainland China itself).
Parties may therefore find themselves in a tug-of-war between their preferred, compromise and worst-case seats. Which seat is ultimately selected will depend upon how big an issue the seat is for each party, how great a desire they have to get the deal [...]
Is it Practical for Not-For-Profits to Rely on BITs?
In a recent post, Lisa Bench Nieuwveld raised an issue which has been discussed from time to time on this blog: the potential for not-for-profit activities to be protected under international investment treaties.
There is no doubt that not-for-profit organizations face a barrage of abuse and mistreatment at the hands of host countries, and that the existing international framework of human rights law and charity law is rather anemic in the face of such abuses.
In past research papers, myself and a colleague have mused about the jurisdictional and substantive issues which might arise when not-for-profits seek the protections of international investment treaties.
However, Lisa is right to ask, [...]
