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International Arbitration in a Time of Global Upheaval

A few weeks ago, the day before the Obama Administration and the EU announced dramatic new sanctions against Russia, an international tribunal announced a $50 billion award against Russia in favor of a group of oil investors. The current violence engulfing Iraq has multiple satellite arbitration disputes over oil sales to Turkey. Recent violence on the Crimean Peninsula implicates massive oil fields off the coast of Crimea that will soon spawn international arbitration claims against the Ukraine, Russia or both. Last Spring, China positioned an oil rig near islands whose control is disputed with the Philippines. The move triggered not only a Philippines-China diplomatic row, but also an UN [...]

Transparency as a Global Norm in International Investment Law

Transparency is one of the hot topics in international law. With governance functions increasingly shifting from the domestic to the international level, transparency is demanded, as Andrea Bianchi and Anne Peters show in their new seminal study, in order to compensate for the lack of a full-fledged international system of checks and balances. Transparency promises a more accountable, more democratic and hence more legitimate system of global governance. International investment law cannot escape from this general drift. As I noted in my Editorial for the latest issue of the Journal or World Investment and Trade (JWIT), secrecy in treaty negotiations and confidentiality in dispute settlement [...]

Cart Before the Horse: Can MFN Clauses Expand the Key Definitions in Investment Treaties?

The debate regarding the extent to which most favoured nation (‘MFN’) clauses in bilateral investment treaties (‘BITs’) can expand the scope of application of such treaties is a well-established and evolving dialogue in investment treaty jurisprudence. However, while the issues around the extension of substantive and procedural protections in BITs have received considerable attention, the nuance around whether MFN clauses can expand the scope of application of BITs has been less closely examined.

MFN clauses are typically invoked in order to import a more favourable substantive protection, such as a broader definition of ‘expropriation’ or ‘compensation’, or more favourable p [...]

The “Anti-ISDS Bill” before the Australian Senate

Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration). India announced a review in 2013, partly in the wake of the successful claim from an Australian mining investor, although the impact in practice is hard to discern or predict – especially under the new Modi government. In both countries, the reviews may also have been linked to domestic politics during election years.

More surprisingly, public debate over ISDS has resurfaced in Australia. For the political left, it really began when Philip Morris Asia announced in 2010 that it would claim under a 1992 treaty with Ho [...]

The Futility Exception to The Exhaustion Requirement: Apotex v. United States

In its Award on Jurisdiction and Admissibility, a unanimous tribunal in Apotex, Inc. v. United States dismissed a Canadian manufacturer’s claims that the United States judiciary had violated NAFTA by mis-applying a regulatory time period.

Most of the reaction to Apotex has focused on the tribunal’s decision that the claimant’s activities in the United States—and in particular its submissions for regulatory approval—did not constitute an “investment” under NAFTA Article 1139. While the tribunal struggled with claimant’s assertion that the regulatory filings were actually treated as “property” as a technical matter, the Award essentially concluded that Apotex simply had no [...]

Notes on the Persistent Latin American Countries’ Attitude Towards Investment Arbitration and ICSID

Investment arbitration is a crucial and sensitive dispute-resolution method, notably because the treatment given to foreign investment matters may materially affect the economic and social realities of a country or region, particularly those in development. In the last decade, however, as already reported and addressed in this blog by, among many others, Vanessa Giraud and Carlos González-Bueno, countries in Latin America — a true hot-spot for foreign investment1 — have been either ignoring, denouncing or resisting the International Centre for Settlement of Investment Disputes (“ICSID”), the dispute-resolution framework for investment protection enacted under the Washington Convent [...]

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