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Indonesia’s Termination of the Netherlands–Indonesia BIT: Broader Implications in the Asia-Pacific?

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 [...]

“White Industries” and State Responsibility: Lesser-Known Facts about the Case as Discussed during the 2014 ICCA Young Arbitration Practitioners Conference

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 [...]

ITA Workshop on Modern Enforcement of Arbitral Awards—Keynote Address

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 [...]

The dissenting opinion in BG v Argentina before the US Supreme Court

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 ConocoPhillips v. Venezuela: Revision of Earlier Decisions in Fragmented Proceedings – A Matter of Principle?

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.

Background

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 [...]

Investment Arbitration: Legal Implications of the Threat to Expropriate

and Oleg Temnikov

I. Foreword
At the end of 2013, the Financial Times reported that a referendum will be held in Berlin on the question whether the State shall take over power supply from the hands of Vattenfall. We use this as an occasion to examine the legal implications in the field of investment arbitration of the threat to expropriate.

II. The views “against” the unlawfulness of a threatened expropriation
In the first place, it must be noted that the existing BITs do not, in general, sanction threats to expropriation, but only the completed act. There are, for example, BITs which provide that “compensation shall be equivalent to the value of the expropriated investment immediate [...]

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