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Brazil’s New Investment Treaties: Outside Looking … Out?

On May 26, 2015, Brazil signed its third investment treaty of 2015 with Mexico. Given the agreements previously signed with Angola and Mozambique, this certainly comes as a confirmation of a new Brazilian attitude towards the regulation of foreign investment. The instrument mostly follows the same model used for the previous two: a Cooperation and Facilitation Investment Agreement (“CFIA”).

The CFIA model and the two treaties have been briefly analyzed elsewhere by outstanding practitioners. But one may still wonder: what exactly are these CFIAs and how do they fit in both the Brazilian and the international contexts? CFIAs may represent more than they initially appear to.

In its press r [...]

What’s New with the Energy Charter Treaty?

No doubt that the last three years have been quite busy for the Energy Charter Treaty (ECT) and for the Energy Charter Conference.

The number of investor-state arbitration cases under Article 26 of the ECT doubled in this time span, going from thirty known cases to sixty-eight (as reported on the website of the Energy Charter Secretariat). Thanks to the “solar claims” against Spain and the Czech Republic. The “solar claims” relate to a series of measures taken by these states which retrospectively reduced the tariffs in the solar energy sector (the “feed-in tariffs”) and withdrew other incentives and benefits. Other states which adopted similar measures, such as Italy (already f [...]

Australia’s Conflicting Approach to ISDS: Where to From Here?

Keeping abreast of Australia’s stance on ISDS can be a confusing exercise. Australia’s approach to investor-state dispute settlement (ISDS) continues to be hotly debated in the wake of recent revelations by Wikileaks that the investment chapter of the Trans-Pacific Partnership (TPP) is likely to include ISDS provisions. The Australian government’s stance on ISDS has undergone a number of dramatic turnabouts since the initial controversy sparked by the first investment treaty claim to be commenced against Australia by Phillip Morris in 2011.

With the exception of the government’s rejection of ISDS provisions in the Australia US Free Trade Agreement in 2003 and the 1982 Free Trade Agre [...]

Investing in Cryptocurrencies under the Existing Investment Arbitration Regime

Over the past few years, the business community has discovered a new form of investment: this new type of capital formation is broadly known as investment in cryptocurrencies. The capital interest in these investments involves large financial institutions such as investment banks, rating services, assets management and consultancy agencies. According to the CoinDesk, the short list of large financial institutions involved in cryptocurrencies’ include: UBS, JPMorgan, Goldman Sachs, Fitch Ratings, Fortress Investment (Pantera) and Silicon Valley. Τhe total amount of investments in the last two years exceeded hundreds of millions of USD. However, despite this growing interest, the legal natu [...]

From Ford to Ferrari? A Brief Look at the Changes Introduced in the Draft Model Indian BIT

Introduction

The Government of India recently released the Draft Indian Model BIT (“Draft BIT”) for public consultation. India has an extensive BIT network with over 72 BITs in force. In 2012, following the investment treaty award against India in White Industries award, the Government initiated a comprehensive effort to revise the Model Indian BIT (“Old BIT”). The Draft BIT is radically different from the Old BIT, making substantial changes to provisions in the Old BIT, and deleting many other provisions such as the FET and MFN provisions, as well as the clear consent to arbitration under the ISDS clause.

Changes Introduced in the Draft BIT

The preamble of the Draft BIT contains an [...]

About the Ostrich, the Micula Brothers and other European Fables

 ‘By putting its head in the sand, the ostrich can see no problems, and if it can’t see any problems, they don’t exist”[1]

To what extent can legal systems differ? Can these differences be legitimate enough to collapse a “conflictive” legal system? These two ambitious questions are difficult to be answered in one go, and are rather susceptible to being answered differently. Regardless of the legal context and origin of the given answers, only one general rule should apply: no ostriches are allowed. And please allow me to explain what I mean by that.

By burying its head in the sand, the ostrich limits itself to internally scrutinise a broken view, this action hinders the ostrich [...]

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