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Effects of Settlements in Investor-State arbitration

What are the effects of a settlement agreement between the locally incorporated company and the host state on the foreign shareholder’s pending BIT claim? Two views have emerged under investment treaty arbitration case law. The first view, adopted in Sempra v. Argentina (ICSID Case No. ARB/02/16) and Hochtief v. Argentina (ICSID Case No. ARB/07/31) decisions, holds that a settlement agreement does not prevent the shareholder from pursuing international proceedings against the State. The second view, sustained in SAUR v. Argentina (ICSID Case No. ARB/04/4), contends that the effects of a settlement agreement preclude the investor from proceeding with an international action against the Sta [...]

Gaillard and Banifatemi on Strategy Insights into the Yukos Arbitration at Harvard Law School

On Friday, February 6, Emmanuel Gaillard, Head of the International Arbitration Group for Shearman & Sterling LLP, and Yas Banifatemi, Head of the Public International Law practice of the same firm, visited Harvard Law School to give a talk about the recent award in the Yukos case. Both of these practitioners represented claimants in three arbitrations initiated in 2005 by the majority shareholders of the former Yukos Oil Company against the Russian Federation. According to Gaillard, “Yukos represents the largest award ever in the history of arbitration by far.” The second largest award was for 2.5 billion dollars in the dispute of Dow Chemical against Kuwait followed by the 1.7 billion [...]

Introducing Litigating International Investment Disputes – A Practitioner’s Guide

I am grateful for the opportunity to introduce to the readers of this blog my new edited book: Litigating International Investment Disputes – A Practitioner’s Guide.

International investment arbitration is increasingly complex and specialized, and this book seeks to guide new and experienced practitioners through the workings and details of international investment arbitration proceedings – from whether and how to initiate arbitral proceedings to the unique features of selecting arbitrators, how to draft written submissions and conduct oral proceedings, and issues related to the enforcement of an award and available post-award remedies.

Indeed, recent decisions have underscored the impor [...]

Meg Kinnear Lecture Live Streamed at Kluwer Arbitration Blog

We are pleased to announce that ICSID Secretary-General Meg Kinnear will be presenting a lecture on the “Next Generation of Investment Treaties and Their Impact on Investor-Dispute Settlement,” today (February 12) from 5:00 to 7:00 pm Eastern here at Kluwer Arbitration blog. You can watch the recorded presentation here.

The event is sponsored by Notre Dame Law School and Hogan Lovells and features not only Meg Kinnear, but also commentary by Michael Tracton (U.S. State Department), Horacio Grigera Naon (American University), Susan Franck (Washington & Lee), Jonathan Stoel (Hogan Lovells), and Roger Alford (Notre Dame).

For those in Washington D.C., you can attend the event in person at the [...]

Domestic Public Law: a Useful Critique for Understanding and Developing Investment Treaty Arbitration?

A recent seminar delivered under the Chatham House Rule considered the usefulness of an analogy between Investment Treaty Arbitration (ITA) and domestic public law, with a view to critiquing perceived imbalances in the former. The content of the seminar was grounded in the speaker’s background in ITA and public law litigation including domestic judicial review (JR) and European human rights law.  This post summarises the speaker’s comments.

The speaker’s main comments may be summarised as follows: ITA, whilst not simply another species of public law, does, like domestic JR, allow individuals to directly challenge governments and receive a remedy. Although it is not directly comparable [...]

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 [...]

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