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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 [...]

Evolving Meaning: The Interpretation of Investment Treaties and Temporal Variations

International investment law is shaped by key terms such as “investment”, “indirect expropriation”, “national treatment”, “most favored nation”, “fair and equitable treatment”, among others, which are at the heart of most investment treaties. But after 1959, when West Germany and Pakistan signed what is known as the first ever bilateral investment treaty, and, since then, the conclusion of more than three thousand investment treaties, the meaning of these key terms has been exposed to potential temporal variations. This raises the question as to whether the interpreter should look for the meaning of the term at the time of the conclusion of the investment treaty or for th [...]

Indian Courts’ First Brush with Investment Treaty Arbitration: Taking Some Lessons from the Calcutta High Court

On 29 September 2014, the Calcutta High Court in Board of Trustees of the Port of Kolkata v. Louis Dreyfus Armaturs SAS & Ors delivered the first decision by an Indian Court on a case directly arising from an investment treaty arbitration. The case concerns an anti-arbitration injunction sought against Louis Dreyfus Armateurs SAS (“LDA”), prohibiting it from proceeding with an investment treaty claim under the 1997 India-France BIT. The Court allowed the application and ordered that LDA restrain from continuing proceedings against Kolkata Port Trust, which was wrongly identified as a Party to the investment arbitration.

This decision is significant for two main reasons. First, it gives v [...]

Mongolia’s Meddling in Mining Operations will Cost it $100 Million

The Mongolian government has recently been required to pay one Canadian mining company approximately $100 million for expropriating that company’s uranium extraction licences in 2009. This sum is payable to Khan Resources Inc (Khan) pursuant to an arbitral award that is the climax of an arbitration proceeding initiated by Khan in 2011 as a result of the Mongolian government’s alleged interference in its mining operations (Khan Resources Inc, Khan Resources BV and Cauc Holding Company Ltd v Government of Mongolia, UNCITRAL).

The facts

Khan took over the Dornod uranium deposit sometime after 1995 from Russia’s Priargunsky Mining & Chemical Enterprise. Khan released a feasibility study in [...]

Investment Arbitration and Legal Protection Under European Law – Frankfurt Court Strengthens the Efficiency of Arbitration Agreements

The Higher Regional Court Frankfurt (OLG Frankfurt) has recently strengthened the efficiency of parties’ wills embodied in arbitration agreements. In a crucial decision (OLG Frankfurt am Main, 26 Sch 3/13, Ruling, 18 December 2014), the judges have added clarity to the practical problem of how to resolve friction between an increasingly dense net of treaty obligations of member states of the European Union and international investment protection. Specifically, the court looked at arbitration agreements and their compatibility with the legal protection requirements envisaged by European law. The answers provided by the OLG Frankfurt are both, a convincing step towards greater clarity in the r [...]

Emergency Arbitrators in Investment Treaty Disputes

Last week, two decisions by emergency arbitrators were made public which had been rendered in separate cases based on investment treaties. Both cases were arbitrated pursuant to the SCC Rules and initiated in 2014 and 2015 respectively; together they likely constitute the first known examples of emergency arbitrators in non-contractual disputes. This blog post will discuss some of the general issues that may arise in such cases, which are likely to occur more frequently in the future.

Emergency arbitrators

Traditionally, parties to an ongoing arbitration could not obtain interim measures before the constitution of the tribunal. As the constitution of an arbitral tribunal could take months, t [...]

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