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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 [...]

From Iura Novit Curia to Zeno’s Paradox of Motion

The recent annulment decision in Tza Yap Shum v. Peru (ICSID Case No. ARB/07/6) has brought back the discussion regarding the ‘pure’ adversarial nature of investor-state arbitration system.

Mr. Shum, a Chinese investor claimed indirect expropriation under the Agreement on Promotion and Reciprocal Protection of Investments (APPRI) between the Governments of Peru and China arising out of several measures taken by Peru’s tax authority SUNAT. Peru challenged the jurisdiction of the tribunal arguing that the claim regarding the unlawfulness of the expropriation was not within the scope of the offer to arbitrate. However, the tribunal upheld its jurisdiction, found a violation of the APPRI a [...]

Scholars Debate Investment Arbitration Chapter in TPP and TTIP

Negotiations over the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) have highlighted the growing debate over investment arbitration. Last week the New York Times published an article summarizing objections to the TPP investment chapter. The article notes that politicians, law professors and liberal activists “have expressed fears the provisions would infringe on United States sovereignty and impinge on government regulation involving businesses in banking, tobacco, pharmaceuticals, and other sectors.”

The reference to academic opposition is based on a letter published by the Alliance for Justice with the signatories from numerous law pr [...]

Conflating Politics and Development?

The University of Virginia’s Spring 2014 symposium focused on the topic of international development. One panel focused on the role of international politics in the context of international dispute settlement. With the mandate to examine elements related to both politics and development, I was asked to explore outcomes in investment treaty arbitration (ITA) as a function of these twin variables. My recent article, published in the Virginia Journal of International Law, focuses on this intersection.

Recognizing that debates about ITA are reaching the mainstream in venues including The Economist, Wall Street Journal, New York Times, dueling editorials in the Washington Post, and even Joh [...]

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