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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 [...]

Consent in Multiparty Investment Arbitration – The Most Recent Installment

On November 17, 2014, the tribunal in Alemanni v. Argentine Republic issued its long-anticipated decision on jurisdiction and admissibility. Alemanni is the third in a series of large-scale arbitrations arising out of Argentina’s default on its sovereign debt, and the most recent decision bears some resemblance to the preliminary awards rendered in the other two matters (Abaclat v. Argentine Republic and Ambiente Ufficio v. Argentine Republic). However, Alemanni puts its own distinctive stamp on the question of mass and multiparty claims in the investment context.

The facts in Alemanni are substantially similar to those in Abaclat and Ambiente Ufficio and therefore need not be discus [...]

Multilateral Investment Treaties? A View from China

The rise of China as a major economic and political actor is one of the defining features of the twentieth-first century. Much of China’s growing power comes from its ever-expanding economy. In order to expand its blossoming economy, China needs to tap into new markets. In an age of intense market integration and economic competition, China’s global resources quest is changing geopolitics around the world. Even though Chinese investment is currently spread around the world, we can identify three regions or blocks where this trend is especially noticeable: Africa, the Portuguese-speaking world, and Latin America.

China’s interest in Africa is especially self-evident. Starting in the la [...]

ICSID Tribunal declines personal jurisdiction over dual national under Egypt-UAE BIT

In an Award on Jurisdiction rendered earlier this year under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) in ICSID Case No. ARB/11/7 – National Gas S.A.E. v. Arab Republic of Egypt (a copy of which is electronically available on the official Investment Treaty Arbitration website at http://www.italaw.com/cases/2494), a tribunal composed of Mr. V.V. Veeder QC as President, The Honorable L. Yves Fortier QC and Prof. Brigitte Stern declined jurisdiction ratione personae over an Egyptian corporate claimant, National Gas S.A.E., a private joint stock company incorporated under the laws of the Arab Republic of Eg [...]

U.S. Free Trade Agreements and Bilateral Investment Treaties: How Does Ratification Differ?

A lot has been written recently about the importance of Trade Promotion Authority (TPA) in the context of the ongoing Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) negotiations. TPA is the authority Congress grants to the President to enter into certain reciprocal trade agreements that Congress can approve or disapprove but cannot amend or filibuster (i.e., passing an agreement would require solely an “up or down” vote by Congress). Many observers believe that TPA is a necessary piece to the successful conclusion of either agreement—it will be difficult for negotiating parties to put their best offers forward without some assurance that Congr [...]

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