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 [...]
Arbitration under the Venezuelan Foreign Investment Law – The Mobil and Cemex Decisions
Two ICSID tribunals have now weighed in on the much-debated question of whether Art. 22 of Venezuela’s Foreign Investment Law provides Venezuela’s consent to ICSID arbitration. In Decisions on Jurisdiction dated June and December 2010, the Mobil and Cemex tribunals (both presided by the former president of the ICJ, Judge Gilbert Guillaume), rejected investors’ submissions that Art. 22 can be used to establish ICSID jurisdiction, although both also held they had jurisdiction under the Dutch-Venezuelan BIT. Although the decisions are significant in the context of the wave of other ICSID arbitrations commenced against Venezuela, which also invoke Art. 22 as a basis for jurisdiction, the [...]
A Brief Comment on the “Public Statement on the International Investment Regime”
On 31 August 2010, a group of over 35 academics (not including the current author), published a Public Statement on the International Investment Regime (Statement). The preamble to the three-page Statement outlines why the Statement has been issued:
We have a shared concern for the harm done to the public welfare by the international investment regime, as currently structured, especially its hampering of the ability of governments to act for their people in response to the concerns of human development and environmental sustainability.
The Statement highlights a number of concerns, including that investment treaties have been given unduly pro-investor interpretations; the award of damages [...]
