The debate regarding the extent to which most favoured nation (‘MFN’) clauses in bilateral investment treaties (‘BITs’) can expand the scope of application of such treaties is a well-established and evolving dialogue in investment treaty jurisprudence. However, while the issues around the extension of substantive and procedural protections in BITs have received considerable attention, the nuance around whether MFN clauses can expand the scope of application of BITs has been less closely examined.
MFN clauses are typically invoked in order to import a more favourable substantive protection, such as a broader definition of ‘expropriation’ or ‘compensation’, or more favourable p [...]
The value of investor-state dispute settlement (ISDS) procedures has lately been questioned by a number of countries. The Australian Government’s 2011 Trade Policy Statement – stating that Australia would not agree to ISDS in its treaties – caused much debate and controversy. In part, Australia’s policy was motivated by the Philip Morris claim, instituted in response to legislation requiring the plain packaging of cigarettes. Since then, a change of government in 2013 has meant that Australia has retracted considerably from its strict position. The current Government has indicated it will consider the inclusion of ISDS on a case-by-case basis. While the Government agreed to the inclu [...]
and Sapna Jhangiani, Clyde & Co. and Joseph P. Matthews J.D., University of Miami School of Law
for Young Arbitration Practitioners
It has been some time since the White Industries Australia Limited v Republic of India judgment was rendered against India in 2011. However, there remain several interesting aspects of the case still not widely known by the international arbitration community. For example, it is generally considered that this case was the first Investment Treaty Claim (ITA) against India. In fact, there was another ITA claim against India previously – the Dabhol case – which was related to a power project in State of Maharashtra, but was settled in 1996. This post seeks to set [...]
The keynote speaker at this year’s ITA Annual Workshop was the Honorable Bernardo Sepúlveda-Amor. Judge Sepúlveda-Amor is Vice President of the International Court of Justice and a professor of international law at El Colegio de México. He has previously served on the United Nations International Law Commission, as Mexico’s Secretary of Foreign Affairs, and as its Ambassador to the United States and the United Kingdom.
Judge Sepúlveda-Amor shared his perspectives on the relationship between the enforcement of international arbitral awards and State responsibility under international treaties. Several tribunals, he explained, have held States responsible for failure to enforce arbitra [...]
As reported earlier, the US Supreme Court has recently adjudicated on the issue of the standard of review in relation to arbitration agreements in international investment arbitration.
It is a fact that the majority of the Court has decided that deference should be given to arbitral tribunals to examine questions of procedural conditions, as it characterized the issue of litigation before the domestic courts of Argentina for 18 months before initiating arbitral proceedings. It seemed to the majority of the Court that the issue pertains to whether a duty to arbitrate arises, and not whether such a duty exists at all.
In determining the issue at hand, the majority found that the United Kingdo [...]
Apropos of a recent decision in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30), this post discusses the potential underlying concerns an arbitral tribunal may consider when deciding whether it can revise earlier decisions within the context of fragmented proceedings.
The ICSID proceedings in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30) commenced in November 2007 under the Netherlands-Venezuela Bilateral Investment Treaty (the “BIT”) and Venezuela’s Foreign Investment law (the “Foreign Investment Law”). The arbitration concerns the Claimants’ interests in two extra-heavy oil projects located in the region in Venezuela known as the Orinoco Oil Belt (Faja Petrolífera [...]