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The Evolution of Arbitration in the Arab World

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s law firm.

Arbitration in the Arab World is a hot topic these days. Over the past few decades the Arab World has become a region at the forefront of international arbitration expansion. With increasing numbers of commercial actors coming out of the Arab World and with regional arbitration centers being established in many Arab states, large numbers of international arbitration cases are now linked to the Arab World.

The increased use of arbitration in the Arab World has often been attributed to foreign investment and the presenc [...]

From Ford to Ferrari? A Brief Look at the Changes Introduced in the Draft Model Indian BIT

Introduction

The Government of India recently released the Draft Indian Model BIT (“Draft BIT”) for public consultation. India has an extensive BIT network with over 72 BITs in force. In 2012, following the investment treaty award against India in White Industries award, the Government initiated a comprehensive effort to revise the Model Indian BIT (“Old BIT”). The Draft BIT is radically different from the Old BIT, making substantial changes to provisions in the Old BIT, and deleting many other provisions such as the FET and MFN provisions, as well as the clear consent to arbitration under the ISDS clause.

Changes Introduced in the Draft BIT

The preamble of the Draft BIT contains an [...]

Canada, China, and the Anti-BIT

If the Canada-China BIT is any guide, then the US-China BIT may prove to be profoundly state-friendly. Unlike Canada’s 2004 model investment agreement and the investment chapter of the 2014 Canada-European Union Comprehensive Trade and Economic Agreement (CETA), the Canada-China BIT offers only negligible establishment-phase protections and lacks disciplines on state-owned enterprises. With such provisions, the Canada-China BIT (and perhaps the US-China BIT) may prove to be an anti-BIT which, rather than promoting new investment, simply asserts states’ ability to regulate existing investments.

Three provisions contribute to the Canada-China BIT’s weak establishment-phase protections: ( [...]

Evolving Meaning: The Interpretation of Investment Treaties and Temporal Variations

International investment law is shaped by key terms such as “investment”, “indirect expropriation”, “national treatment”, “most favored nation”, “fair and equitable treatment”, among others, which are at the heart of most investment treaties. But after 1959, when West Germany and Pakistan signed what is known as the first ever bilateral investment treaty, and, since then, the conclusion of more than three thousand investment treaties, the meaning of these key terms has been exposed to potential temporal variations. This raises the question as to whether the interpreter should look for the meaning of the term at the time of the conclusion of the investment treaty or for th [...]

Indian Courts’ First Brush with Investment Treaty Arbitration: Taking Some Lessons from the Calcutta High Court

On 29 September 2014, the Calcutta High Court in Board of Trustees of the Port of Kolkata v. Louis Dreyfus Armaturs SAS & Ors delivered the first decision by an Indian Court on a case directly arising from an investment treaty arbitration. The case concerns an anti-arbitration injunction sought against Louis Dreyfus Armateurs SAS (“LDA”), prohibiting it from proceeding with an investment treaty claim under the 1997 India-France BIT. The Court allowed the application and ordered that LDA restrain from continuing proceedings against Kolkata Port Trust, which was wrongly identified as a Party to the investment arbitration.

This decision is significant for two main reasons. First, it gives v [...]

A Question of Democracy: The German Debate on International Investment Law.

Germany’s position on international investment law and investor-State arbitration is attracting increasing attention since the signing of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) in September 2014 has been deferred, inter alia, because of opposition from Sigmar Gabriel, Germany’s Federal Minister for Economic Affairs and Energy. Is Germany, the country that not only has concluded the first bilateral investment treaty (BIT) in 1959 but also has the densest network of BITs worldwide, as some fear, joining the coalition of critics in fundamentally reversing its international investment policy?

Mounting Criticism of International Investment Law in Germany in Context

A [...]

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