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Effects of Settlements in Investor-State arbitration

What are the effects of a settlement agreement between the locally incorporated company and the host state on the foreign shareholder’s pending BIT claim? Two views have emerged under investment treaty arbitration case law. The first view, adopted in Sempra v. Argentina (ICSID Case No. ARB/02/16) and Hochtief v. Argentina (ICSID Case No. ARB/07/31) decisions, holds that a settlement agreement does not prevent the shareholder from pursuing international proceedings against the State. The second view, sustained in SAUR v. Argentina (ICSID Case No. ARB/04/4), contends that the effects of a settlement agreement preclude the investor from proceeding with an international action against the Sta [...]

Domestic Public Law: a Useful Critique for Understanding and Developing Investment Treaty Arbitration?

A recent seminar delivered under the Chatham House Rule considered the usefulness of an analogy between Investment Treaty Arbitration (ITA) and domestic public law, with a view to critiquing perceived imbalances in the former. The content of the seminar was grounded in the speaker’s background in ITA and public law litigation including domestic judicial review (JR) and European human rights law.  This post summarises the speaker’s comments.

The speaker’s main comments may be summarised as follows: ITA, whilst not simply another species of public law, does, like domestic JR, allow individuals to directly challenge governments and receive a remedy. Although it is not directly comparable [...]

Singapore Court Reviews Investment Arbitral Tribunal’s Decision On Jurisdiction: What Standard Should Apply As to Evidence?

and Paul Tan, Jawad Ahmad and Victor Steinmetz, Rajah & Tann Singapore LLP

In what marks the first time where a Singapore court reviews an investment arbitral tribunal’s jurisdiction, the High Court held in Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] SGHC 15 that, contrary to the tribunal’s findings, the Agreement between the Government of the Lao People’s Democratic Republic (“Laos”) and the Government of the People’s Republic of China (“PRC”) Concerning the Encouragement and Reciprocal Protection of Investment dated 31 January 1993 (the “Treaty”) did not apply to the Macau Special Administrative Region of China (“Macau”), wher [...]

EU Law and Investment Law: Two Worlds Apart?

The Inaugural Conference of the European Federation for Investment Law and Arbitration (EFILA) took place on Friday, 23 January 2015, in the Senate House of the Queen Mary University of London. 160 participants ranging from academics, arbitrators, arbitration institutions, companies, lawyers to NGOs reviewed a full day long the EU’s first 5 years of European investment policy.

The conference was kicked off by the first panel which immediately dived into the fundamentals, namely, the pros and cons of the existing investor-state dispute settlement system (ISDS). The range of the critique was broad spanning from essentially leaving it to arbitral tribunals to find the right balance, over possi [...]

Are a Bilateral Investment Treaty Arbitration and a Proceeding Before the European Court of Human Rights Compatible?

Although a bilateral investment treaty (“BIT”) arbitration and an application made before the European Court of Human Rights (“the Court”) could, at first glance, present opposite objectives, investors alleging a violation of their rights by a State may be inclined to make use of both remedies. As it will be elaborated below, the case law shows that a strict application of the triple identity test (i.e. same parties, same facts, same cause of action) by the arbitral tribunals and the Court generally entails the rejection of lis pendens or admissibility objections based on BITs’ “fork in the road” provisions or Article 35, §2, b) of the Convention, which provides that the Court [...]

New Indian Model BIT on the Anvil

India lost its first Investment Treaty Arbitration (ITA) claim in 2012 against White Industries, an Australian company. Taking cue from the White Industries case, (read more on it here) around 17 fresh ITAs have been filed against India in last two years.

Beleaguered with these claims, a new model BIT is being considered by the Indian government for future negotiations of BITs with other States. USA would probably be the first country with which a BIT would be negotiatiated by the yardstick of the new model BIT. This piece discusses the features of the new Model BIT that is being contemplated.

Definition of Investment

The definition of “investment” in the new model BIT might be amende [...]

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