Negotiations to establish a Trans-Pacific Partnership (TPP) agreement have been active and ambitious. Following 18 negotiating rounds since 2010, TPP talks now include 12 States, representing nearly 40 percent of global GDP. Scholars have observed that a TPP agreement, given its scale, could provide “staggering” economic benefits as well as a “genuine Asia-Pacific integration track.”
But the TPP negotiations, particularly with respect to the potential inclusion of an investor-State dispute settlement mechanism, have been criticized on policy grounds by certain judges, legislators, scholars, and organizations. As a legal matter, however, it is the criticism of investor-State dispute settl [...]
and Oleg Temnikov
I. Bureau Veritas v. Republic of Paraguay
In the recent Further decision on objections to jurisdiction dated October 9, 2012 the tribunal in Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Paraguay (ICSID Case No. ARB/07/9) dismissed BIVAC’s claim based on violation of the fair and equitable standard by reasoning that the dispute relates to mere refusal to pay invoices under a pre-shipment inspection contract and that, in doing so, Paraguay has not acted “in a manner that is qualitatively different from an ordinary contracting party.” The tribunal thus upheld the traditional distinction between mere breach of contract and treaty breach st [...]
In Part I it was argued that the proper law applicable in the investor-State disputes under Article 42 (1) ICSID Convention depends on the substantive grounds of the investor’s claim. In support of this, I have outlined three factual scenarios and types of claims with evidence from case law. Part I dealt with host State domestic law and the direct relationship between investor and State. The ICSID case law on the latter supporting the analysis from Part I is as follows:
2.1. Case law examples
In SOABI v Republic of Senegal (ARB/82/1) there was a contract between the investor and the Government of Senegal. In para 5.02 of the award the Tribunal [...]
Rationalizing applicable law in investor-State disputes in absence of express choice of law under Article 42 (1) of ICSID Convention
Article 42 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) determines the powers of an arbitral tribunal constituted under the ICSID Convention as to applicable law in investor-State disputes.
Paragraph 1 of the Article has been subject of varying interpretation in both practice and doctrine, especially as to the determination of applicable law in cases of absence of express choice of law. The interpretation of the Article oscillates from absolute focus on national law of host Sta [...]
At a conference a few years back, a well-known and respected arbitrator was speaking on the topic of predictability and consistency of arbitral decision making in investment treaty arbitration. The arbitrator asked whether arbitrators should fly solo or in flocks. He made a strong and persuasive case for the independence of the arbitrator, to fly solo—perhaps into uncharted territory. The arbitrator used the example of the condor—flying high in the sky, with clear-sighted vision taking in the expanse of the territory below it.
Using animal and bird metaphors for arbitrators and arbitral tribunals has its dangers. The condor is a member of the Vultur genus. According to Wikipedia, a [...]
Akbar the Great once drew with his royal hand a line in the sand. He then told his wise men that if they wanted to keep their jobs, they must invent a way to make the line shorter without touching any part of it. Wise man after wise man approached the line and stood in dismay. No one else but Birbal came with the solution. He stepped forward and drew another line in parallel to the first one, but drew it longer than it. Everyone in the court agreed that the line drawn by the King was shorter and untouched. (A koan)
Foreword: In the eyes of a taxpayer
In the past two weeks civil unrest erupted in Bulgaria causing the Government to step down as a result of the energy prices increase. Proteste [...]