What if Spain sued Argentina on behalf of Repsol?
This week, Spanish energy firm Repsol put Argentina on notice of an arbitration claim under the Spain-Argentina bilateral investment treaty. The development comes as no surprise, as Repsol had been threatening for some weeks to take such a course if Argentina persisted in nationalizing the bulk of Repsol’s 57% stake in the Argentine firm YPF.
But am I the only person who was wondering whether Spain might step forward to sue Argentina on behalf of Repsol?
To be sure, a state-to-state claim would swim against the tide of conventional wisdom. After all, modern Bilateral Investment Treaties contain investor-to-state arbitration clauses precisely so that investors can fight their own legal bat [...]
When is an Arbitral Panel an International Tribunal?
When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the U.S. statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to Prove Denial of Justice, what constitutes an international tribunal is not a simple question. It is also a critically important question, because the power to invoke federal court discovery in aid of foreign or international proceedings is one of the most effective evidentiary tools that any international lawyer can wield.
Ever [...]
The Concept of Good Faith in International Investment Disputes – The Arbitrator’s Dilemma
The concept of good faith has been a subject of perennial controversy since it was derived from the Roman legal equivalent ‘bonas fides’. Juristic views on and the legal conceptualization of the idea of good faith may often vary across the cultural divides and legal traditions. At a higher level of abstraction there may be a semblance of understanding that it is a moral principle and is reflective of all good senses such as honesty, good conscience, fairness, equity, reasonableness, equitable dealing or fair dealing, etc., but its application may cause the divergence of opinions. This has caused some uncertainty about the nature of the concept itself and the consequent unpredictability o [...]
Does Investment Arbitration Now Provide a Second Bite at the Cherry?
White Industries Australia Limited v. Republic of India (White v. India) is the latest in a growing line of cases where international investors have successfully resorted to investment treaty arbitration to recover sums owed under international commercial arbitral awards where there have been extensive delays enforcing those awards in domestic courts. However, the potential scope of this method of enforcing commercial arbitral awards remains far from certain: it is unlikely that this will result in a panacea for all enforcement problems.
Following nine years of fruitlessly attempting to enforce an ICC award in India against state-owned mining company, Coal India, over the supply of equipment [...]
2012 ASIL Annual Meeting: Confronting Complexity
- By Chiara Giorgetti, White & Case LLP,
for White & Case
The Annual Meeting of the American Society of International Law is next week (March 28 – 31) at the Fairmont Hotel in Washington, DC. (register here.)
I have the honor to co-chair the meeting with Cymie Payne and Harlan Cohen and, together with a wonderful Program Committee, we put together a great program centered around the theme of “Confronting Complexity”.
The meeting includes many events of interest to international arbitration practitioners, including panels on the preparation of cases, fact-finding, ethics, sport arbitration, sanctions, the Ecuador/Chevron dispute and the emerging system of international arbitration.
At the meeting, James Crawford will be honored with the Hudson [...]
Arbitration in Times of Crisis
International arbitration has long played an important role in resolving disputes that arise out of political and economic crises. “Arbitration in Times of Crisis” is the theme of the 9th Annual ITA-ASIL Conference on 28 March 2012 in Washington, D.C. (see program). The conference will focus on lessons from the past use of arbitral mechanisms in times of crisis and an evaluation of 10 years of investor-state arbitration arising from the Argentine economic crisis.
From the Jay Treaty (1794) to the current investor-state arbitration regime under investment treaties, states have used international arbitral mechanisms to resolve complex disputes involving key areas of nati [...]
