The Unavoidability of Uncertainty: One Lesson from the Recent U.S. Court Ruling in Argentina v. BG Group
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]
Can States Assert Counterclaims Against Investors in BIT Proceedings?
The recent decision in Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1) is prompting renewed debate over whether ICSID arbitration, now the leading mechanism for investors to pursue treaty-based claims against host States, may also be used by those States to assert related counterclaims against the investors, allowing all such claims to be settled in a single forum. At issue are certain fundamental questions about the relationship between the ICSID Convention and investment treaties as an extrinsic source of consent to arbitrate.
Article 46 of the ICSID Convention expressly requires a tribunal, if requested by a party, to determine “counterclaims arising directly out of the subject [...]
Reflections on the LCIA Arbitrator Challenge Digests
The recently published abstracts of LCIA Court decisions on arbitrator challenges between 1996 and 2010 (Arbitration International, vol. 27, no. 3, 2011) make surprisingly interesting reading. They are an important reminder of the types of egregious arbitrator conduct that, while fortunately rare, can give the system a bad name unless promptly corrected. At the same time, the abstracts also shed light on the lengths to which parties sometimes will go in launching challenges, often for tactical reasons, on grounds that are manifestly unfounded.
Of the 28 published abstracts, six cases were considered to be sufficiently problematic to satisfy the LCIA challenge standard, involving circumst [...]
Controlling Time and Costs in Arbitration: A Progress Report (Part 2 of 2)
In my last blog, I offered praise for the ICDR, ICC and ICSID, for taking a number of important steps over the last few years to control excessive time and costs in international arbitration. Those initiatives already have resulted in measurable reductions in the average duration of cases. But there is more that the leading institutions can do, particularly in the key areas of arbitrator availability at the outset and arbitrator diligence in rendering awards at the end. There is also much more that the users of international arbitration can do, and pressing the institutions for further reforms should never be a substitute for meaningful self-reflection and self-discipline by the parties, [...]
Controlling Time and Costs in Arbitration: A Progress Report (Part 1 of 2)
I’m honored to join today the fine ranks of contributors to this blog. For my first two posts, I thought I would offer a progress report of sorts on the critical task of controlling time and costs in international arbitration. This Part 1 focuses on the good news about various institutional reforms by the ICDR, ICC and ICSID that already are helping to reduce the average duration of cases. The next Part 2 offers suggestions for further action by these institutions, as well as a more sober “reality check”: that institutional reforms (no matter how vigorous) always will be a mere drop in the bucket, unless the users of the system also reform their expectations and practices.
My refle [...]
