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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 [...]

Allocation of Costs in ICSID Arbitration

and Oleg Temnikov

1. Approaches to cost allocation

There are, generally, two approaches to costs allocation (“CA”), namely:
(1) pay your own way (“PYOWA”) whereby the parties share the costs of the proceedings and bear their own legal costs;
(2) loser pays or also called “costs follow the event” approach (“CFTEA”) under which the losing party bears the costs of the proceedings and the legal costs of the winning party. In case the winning party has lost on some procedural events or a number of its claims, the tribunal will make an adjustment downwards in proportion to the relative success of the parties (costs follow the event pro rata).

In addition to the above approaches, [...]

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 [...]

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