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Security for Costs in ICSID Arbitration

and Oleg Temnikov

Purpose of security for costs

Security for costs falls into the category of provisional measures and is regulated by Article 47 of the ICSID Convention and Arbitration Rule 39. Its purpose is, inter alia to preserve the effectiveness of the award and the integrity of the proceeding by protecting the requesting party’s potential right to reimbursement of costs. (RSM Production Corporation v. Saint Lucia, Decision on security for costs of 13 August 2014, para. 65) The present post discusses the decision on security for costs of the arbitral tribunal in RSM Production Corporation v. Saint Lucia, as well as its implications in an area inhibited by inconsistency.

Why past tri [...]

The Collateral Effect of an International Arbitration Award: A Capital Markets View

The current state of affairs of arbitration within Latin America looks challenging. Many countries are having upcoming ICSID awards which could amount to tens of billions of dollars against them. Most international bonds have a final judgment event of default (EoD), which could lead to a default bond scenario on the sovereign debt of such Republic. Some Bonds from Sovereigns list the following event of default:

“…there shall have been entered against the Republic…a final judgment, decree or order by a court of competent jurisdiction from which no appeal may be made, or is made, for the payment of money in excess of U.S.$100,000,000 or its equivalent and 30 days shall have passed since th [...]

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 [...]

Previous Decisions in Investment Arbitration

It is well settled that there is no rule of precedent in investment arbitration and arbitrators are not bound by decisions rendered by previous tribunals. Nevertheless, investment arbitration practice shows that previous decisions are often observed and followed. Disputing parties and arbitrators devote significant attention to previous decisions and on several occasions arbitral tribunals rely on the reasoning of previous decision in order to legitimate their own decisions. In certain cases, arbitrators considered that, even though they are not bound by previous decisions, there is a duty to follow the solution given in previous cases.

The decision rendered in the case of Saipem S.p.A. v. B [...]

Tipping Point?: What Does the Perenco case say about Fair and Equitable Treatment?

The case of Perenco Ecuador Limited v Republic of Ecuador, ICSID Case No. ARB/08/6 (Decision, 12 September 2014), is one of a number of investor-state disputes to arise from the Ecuadoran government’s policies on the so-called “extraordinary income” of oil companies operating in its territory in the mid to late 2000s. Keen followers of international arbitration will recall three previous cases concerned with the same issues:

Murphy Exploration & Production Company – International v. Republic of Ecuador, (UNCITRAL, PCA Case No. AA434 / ICSID Case No. ARB/08/4), which is now proceeding in an UNCITRAL arbitration after the ICSID proceedings were dismissed for lack of jurisdiction;
Re [...]

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 [...]

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