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Enforcement of Treaty Awards against Russia in Asia: A Safe Haven for Russian Assets?

In recent years, Russia has become a frequent respondent in investment treaty matters. This is a new development. There are currently at least ten treaty claims pending against Russia, with a number of other disputes threatened. At the same time, Russia is trying to protect its assets against a large-scale enforcement campaign in Europe and the US.

On 6 August 2015, in response to these developments, the government of the Russian Federation introduced a draft law ‘On Jurisdictional Immunity of Foreign States and Foreign Sovereign Assets in the Russian Federation’ in the State Duma. Under the draft law, Russian courts would be entitled, based “on a reciprocity principle”, to exercise [...]

Treaty Shopping by Dual Nationals Through the Use of Interposed Corporate Entities

Treaty shopping, also called corporate (re-)structuring, is most often associated with legal persons, in particular mailbox companies. Much discussed in this respect is the practice of “round-tripping” where the investor-claimant is foreign-incorporated, but majority-controlled by natural or legal persons of host State nationality (see e.g. Tokios Tokeles v Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004). In these cases, arbitral tribunals have virtually uniformly rejected Respondents´ pleas to “pierce the corporate veil” and look for the “real” (upstream) investor in the absence of a corresponding, treaty-based requirement, thus adopting a strictly f [...]

The Duty to Negotiate in Good Faith: Compensation for Expropriation

The Dissenting Opinion of Georges Abi-Saab to the Decision on Jurisdiction and Merits of September 3, 2013 in the case ConocoPhillips, Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30 (hereinafter the “Dissenting Opinion”), raises the issue of whether there is a duty to negotiate compensation in good faith, and if there is, the subsequent question of whether the lack of good faith in compensation negotiations defines the lawfulness or unlawfulness of an expropriation.

Good faith is a general principle of international law, which in different forms permeates the entirety of international legal order [...]

New Rules for Foreign Investment In Chile

On of the most important developments this year in Latin America is the  Chilean Act N°20.848, which sets forth a new framework for foreign investment in Chile (hereinafter, the “ New Foreign Investment Act” or the “Act”), replacing the regime contained in the Decree Law N°600 of 1974 (hereinafter, the “DL 600”).

According to the DL 600, foreign investors bringing capital, physical goods or other forms of investment into Chile had to apply for an authorization before the Foreign Investment Committee on behalf of the State of Chile.

Upon receiving approval from the Foreign Investment Committee, the foreign investor would enter into a Foreign Investment Contract with the State o [...]

Enforcement of the JKX Oil & Gas Emergency Arbitrator Award: A Sign of Pro-arbitration Stance in Ukraine?

On June 8, 2015, Pecherskyi District Court of Kyiv (“Pecherskyi Court”) upheld an application lodged by JKX Oil & Gas plc, Poltava Gas B.V. and JV Poltava Petroleum Company (“JKX Companies”) to enforce an emergency arbitrator award rendered under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC Rules”) against Ukraine. Apart from being the first enforcement of an award issued by an emergency arbitrator against a state in investment treaty arbitration, the Pecherskyi Court decision in case No 757/5777/15-ц also marks the first ever attempt to enforce an emergency arbitrator award in Ukraine.

On February 16, 2015, it was announced that [...]

The Emerging Harmonization of the International Investment Law Regime

Given the existence of thousands of international investment agreements, the international investment law regime has been described as “complex and confusing,” “highly fragmented,” and “characterised by overlaps and incoherence”.

Two key developments, however, are contributing to the harmonization of that regime. First, a set of major agreements is being negotiated by many of the world’s largest economies, which, if completed, will cover a very significant share of global investment. Second, given the recent treaty practice of the States participating in those negotiations, that set of major agreements likely would include relatively consistent approaches to some of the most ch [...]

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