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Should Investment Treaty Tribunals Fly in Flocks? Predictability and Consistency in Arbitral Decision Making

At a conference a few years back, a well-known and respected arbitrator was speaking on the topic of predictability and consistency of arbitral decision making in investment treaty arbitration.  The arbitrator asked whether arbitrators should fly solo or in flocks.  He made a strong and persuasive case for the independence of the arbitrator, to fly solo—perhaps into uncharted territory.  The arbitrator used the example of the condor—flying high in the sky, with clear-sighted vision taking in the expanse of the territory below it.

Using animal and bird metaphors for arbitrators and arbitral tribunals has its dangers. The condor is a member of the Vultur genus. According to Wikipedia, a [...]

Arbitration in Times of Crisis

International arbitration has long played an important role in resolving disputes that arise out of political and economic crises.   “Arbitration in Times of Crisis” is the theme of the 9th Annual ITA-ASIL Conference on 28 March 2012 in Washington, D.C. (see program).   The conference will focus on lessons from the past use of arbitral mechanisms in times of crisis and an evaluation of 10 years of investor-state arbitration arising from the Argentine economic crisis.

From the Jay Treaty (1794) to the current investor-state arbitration regime under investment treaties, states have used international arbitral mechanisms to resolve complex disputes involving key areas of nati [...]

Mass claims and the distinction between jurisdiction and admissibility (Part II)

With the release of the Dissenting Opinion in Abaclat v. Agentina, we now have the benefit of a forceful critique of the majority’s decision that the Abaclat Tribunal has jurisdiction to hear the claims of over 60,000 Italian investors against Argentina under the ICSID Convention and the Argentina-Italy BIT.  Professor Georges Abi-Saab’s Dissenting Opinion (the Dissent) raises a number of objections to the majority’s decision.  Most importantly, it states that the Tribunal “faces two glaringly insuperable obstacles that prevent it from taking jurisdiction”.  First, the investors’ security entitlements are not protected investments, in particular, because the investments were n [...]

Mass Claims and the distinction between jurisdiction and admissibility

In its 4 August 2011 Decision on Jurisdiction and Admissibility, the majority of the Tribunal in Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic affirmed that it had jurisdiction to hear the claims of over 60,000 Italian investors against Argentina arising out of Argentina’s default on various sovereign bonds.  The Decision is historic in its holding that there is no impediment to mass claims under the ICSID Convention and Arbitration Rules and that ICSID tribunals have the power under ICSID Arbitration Rule 19 to adopt procedures to handle mass claims.

Although the Tribunal’s finding that it can hear mass claim has garnered the [...]

Disqualification Based on Multiple Appointments—Divergence in Recent ICSID Decisions?

The four most recent ICSID disqualification decisions (Universal Compression v. Venezuela, OPIC Karimum v. Venezuela, Tidewater v. Venezuela and Urbaser v. Argentina) have unanimously rejected applications to disqualify arbitrators on ICSID tribunals.  This post addresses an issue raised in three of the most recent decisions—disqualification based on repeat appointments by the same party or counsel—and the apparent divergence of views in the Tidewater and OPIC Karimum disqualification decisions as to whether repeat appointment is a neutral factor in a challenge to an arbitrator.

In Tidewater, the claimants challenged Venezuela’s appointee, Professor Stern, who had been appo [...]

Harnessing Freedom of Investment for Green Growth

The OECD-hosted Freedom of Investment (FOI) Roundtable is in the process of finalizing a statement regarding the role of international investment in supporting the realization of countries’ green growth objectives.  The draft statement entitled “Harnessing Freedom of Investment for Green Growth” (Draft Statement) and three draft background consultation papers (Draft Papers) are available on the OECD website.  Over the past two months, the OECD Secretariat has sought comments on the Draft Statement and Draft Papers from various experts with an interest in the interaction between international investment and the environment.  Delegates at the March 2011 Freedom of Investment Roundtabl [...]

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